Stewart Taxi-Service Co. v. Roy

Burke, J., delivered the opinion of the Court. This suit was instituted by the appellee, Basil Eoy, against the Stewart Taxi-Service Company, a body corporate, to recover damages for injuries to himself, which were sustained in consequence of the alleged negligence of the servant or agent of the defendant in driving an automobile against and over him. The injuries are alleged to have been sustained on the 19th of September, 1914, while the appellee was walking along Eastern avenue, a public highway of Baltimore County. The declaration contained two counts.

The first ' count alleged that the appellee was using proper care and caution in walking upon said highway; that while so walking “an automobile, owned by the said Stewart Taxi-Service Company was negligently and unskillfully, and without the exercise of due care and caution operated or driven by one of the agents, employees, or servants of the said defendant on Eastern avenue road, near Prospect Park aforesaid mentioned; and that by reason of said negligence and unskillfulness and want of ordinary care and caution on the part of said defendant, its agent, servant, or employee, the said automobile was driven or run against and struck and injured the plaintiff as he was then and there walking along and on said Eastern 'avenue road and using all due and ordinary care and caution, whereby the said plaintiff was greatly injured and disabled and his ankle broken; and the plaintiff as a result of said injuries, suffered great physical pain and ⁷² distress and mental anguish and suffered great financial loss and damage; and said injuries were caused by the negligence and absence of due care and caution on the part of the defendant, his agent, servant, and employee, and not by reason of any want of due care and caution on the part of the plaintiff thereto contributing.” ' The second count alleged that the injuries sustained were permanent, but in other respects it was like the first. The defendant pleaded that he did not commit the wrongs alleged, and issue was joined upon this plea. A jury was sworn, and after a trial a verdict was rendered against the defendant, and, after a motion for a new trial had been overruled, a judgment was entered upon the verdict, and from that judgment the defendant appealed. It is unnecessary to the decision of the legal questions raised to discuss with particularity the evidence contained in the record.

It is most conflicting and utterly irreconcilable. The main facts upon which the plaintiff relied are these: that a little after midnight on the 19th of September, 1911, he was walking on the Eastern avenue road towards his home; that he was on the right side of the road near the gutter; when he had reached a dark place in the road he heai'd the noise of a machine; he turned around but saw no light and heard no horn blow, and he concluded that the machine was not coming towards him; he then turned to continue his journey and as he turned he was struck by the machine; he was near the ditch on the side of the road, and ’ was knocked into the ditch by the machine; that the machine ran over him and one of his feet was caught in the right hind wheel; that he extricated it with much difficulty and pain; that he was helped to his house by the men in the machine; that a physician was called, and he was found to be severely and painfully injured, and was confined to his bed for‘two weeks; that there were no lights upon the machine; that the men wanted to leave him in the road but he begged them to take him to his home. The plaintiff’s testimony was corroborated in many important particulars, especially his state ⁷³ ment that the place where he was struck was dark and that the machine had no lights. He was attended by Dr. France for two weeks, and was taken to a hospital where an X-ray picture was taken of his foot.

He was bruised and lacerated; his shoulder was injured and one ankle was fractured. The plaintiff testified that his shoulder was “all right now” but that he still suffered from his ankle. Dr. France, the attending physician, described the plaintiff’s injuries. He said: “Mr. Roy had a lacerated face and appai*ently a dislocated shoulder,” and the witness thought at that time there was a fracture of the ankle joint; later he found there was such fracture; that he found the plaintiff suffering severely from shock, under excitement, and very considerably depressed.

That he attended him for about two weeks, and Mr. Roy called at the office after that, but just when and how long before he stopped going to see him he could not recall. That it took about two weeks for the external injuries to be treated first for the lacerations to heal sufficiently to put pressure on them to approximate the joint. After the picture was taken we found the fracture of the internal bone of the ankle joint; that is usually caused by direct violence.” He further gave some testimony, to which we will presently refer and to which exceptions were taken, tending to-show that the -injuries were permanent. It was admitted that the machine was owned by the defendant, and it was shown in the testimony offered on behalf of the plaintiff that it was driven at the time the plaintiff was injured by William <1.

Ennis. There is no evidence to show and it is not contended that the plaintiff was guilty of contributory negligence. The defense relied upon was: first, that the plaintiff was not injured by-the defendant’s car. That he did not strike him.

This was testified to by Ennis, the driver, and by the witness Oasey. They testified that as they approached a certain point on the highway, they saw an object in the road some little distance ahead; that they stopped the car and found the plaintiff lying in the road; that he was moan ⁷⁴ ing, and said his leg was broken, and, at his request, they took him home. Casey said that when they found the plaintiff “his face was dirty and wet and bloody, and his clothes were dirty, he was messed up in general.” Both of these witnesses said the lights on the front of the car were burning; and testimony to this effect was given by another witness. Secondly, that Ennis, who was driving the car, was not the agent or servant of the defendant, and therefore, if it be conceded that the plaintiff was struck as alleged in the declaration, the defendant could not be held liable.

It may be well at this point to refer to the testimony offered on the part of the defendant as to how Ennis came into the possession of the car. Ennis was an employee of the Fisk Rubber Company. He had never been in the employ of the defendant. Under a contract between the Fisk Rubber Company and the defendant he was “employed by the Fisk Rubber Company as inspector of automobile tires for the Stewart Taxi-Service Company, and also of mileage meters, and to see that the running gears on all these cabs will run properly in order to give the best mileage that can be got out of those tires.” He testified that the engine of the cab had been overhauled, and at the request of Mr. Cassiday, then and now an employee of the defendant, but who was not called as a witness, he took the cab out to test it for him; that he ran it around a city block, and in company with Casey he went out the Belair road for some distance.

They came back to Baltimore, and went down Eastern avenue as far as Prospect Park where he was compelled to do' some repair work to the car. He said, “it takes 100 miles to run an engine before you get it right when you have overhauled it. If you take it out of the shop) and give it to a chauffeur before you have tried it you will have to send somebody out to take it home.” Asked what his purpose was in taking the cab out, the witness said: “I have had quite a lot of experience with automobiles, and Mr. Stewart seemed to be a little busy, and Mr. Cassiday, his office man, asked me if I ⁷⁵ would take it out aud test it for him, as my time had finished with the Fisk Rubber Company twelve o’clock noon.” He had tested cabs out for Mr. Cassiday as often as once a month. Harry L. Stewart was the general manager of the defendant company.

He said it was his duty to look after the business generally, and to- keep a watch on everything; that there was no other person in active charge of the business. That Mr. Cassiday had been in the employ of the Company ever since it was organized; that he was employed in.the capacity of starter, and that he had no authority to send out cabs in the control of anyone except the employees of the company; he denied that he had known that Cassiday had sent this car out on the night in question, but he did not deny that he had knowledge that Cassiday had permitted Ennis to take ears out on other occasions as testified to by him. We have no doubt that the evidence offered on the part of the plaintiff was sufficient to have taken the case