Sullivan v. Smith

Boyd C. J., delivered the opinion of the Court. The appellant sued the appellee for injuries sustained by her as the result of the alleged negligence of the agent of the latter in running his automobile. There are four bills of exception in the record, — the first three presenting rulings on the admissibility of evidence and the fourth those on the prayers. The plaintiff offered three prayers, all of which were granted, and the defendant offered six, the first, second, ⁵⁵⁰ third and fourth of which were granted and the fifth and sixth were rejected.

The fifth sought to take the case from the jury on the ground that there was no evidence legally sufficient under the pleadings entitle the plaintiff to recover, and the sixth relied on the alleged contributory negligence of the plaintiff as a bar to recovery. As the last two were not granted, there is no exception to the rulings on them, but the appellee contends that they ought to have been granted, and hence the judgment should not be reversed, even if the Court be of the opinion that there was error in other rulings of the lower Court — relying on State, use of Bacon, v. B. & P. R. R. Co., 58 Md. 482 ; Bowman v. Little, 101 Md. 273 , and other authorities cited, but while the questions involved in them will be referred to, it will not be necessary to pass on those prayers. The defendant’s car was a Packard with a limousine body, weighing about 4500 pounds. The accident happened on Cedar Avenue in the City of Baltimore.

There is some confusion about the number of the house where the plaintiff was living with her grandmothei', and where she came from at the time of the accident, but we understand it to be No. 3008. Cedar Avenue on that block is described as having a brick sidewalk six feet wide from the steps of the houses and then there is a space between that and the curb of a little over six feet. The street from curb to curb is aborrt forty feet wide and just outside of the curb on the west side is a gutter about three feet wide. The street runs north and south and No. 3008 is on the west side.

There is a peculiar conflict of testimony as to whether there was a wagon standing near 3008, but according to the plaintiff’s witnesses there was a delivery wagon standing somewhere between 3010 and 300(5. The most accurate description of it seems to show that the back of the wagon was about opposite the step of No. 3010 with the horse facing south. The chauffeur of the defendant and the occupants of Dr. Likes’ car, which was going the same direction as the defend ⁵⁵¹ ant’s and about thirty or forty feet behind it, said they saw no wagon standing there. Airs.

Lewis, a witness for defendant, said she was living at Ho. 3020, and was going' to 3010; that Air. Carroll’s wagon came down the street and stopped at 3018 and delivered an order there; that she passed the wagon when it was between 3016 and 3014; that the wagon was not at 3010 until after the accident. It is impossible to reconcile the statements of the witnesses about the wagon, although there is no reason to suppose that any of them were intentionally testifying to an untruth. In some respects the defendant’s case is stronger on the theory that the wagon was at the place where most of the plaintiff’s witnesses place it — a foot or two beyond the gutter and somewhere between 3010 and 3006.

For the purposes of this opinion we will assume that it was¡ there, as the weight of the testimony so shows. It is described as being about five feet nine inches wide. The plaintiff had been talking with Mr. Meyers on the steps of her grandmother’s house and started across the street to tell her that he was there. Her grandmother was at Air.

Landes’ store, which was Ho. 3001 Cedar Avenue and on the comer of that avenue and a small street known as Bay Street. The testimony of the plaintiff was that she walked down to the gutter, stopped and looked up and down the street to see if anything was coming, and as she did not see anything she started across the street about two or three feet .in front of the horse hitched to the wagon. Her testimony is somewhat confused as to how far she then went before stopping again, but we understand her to mean that when she passed in front of the horse to a point about even with the left wheels of the wagon, she stopped again and looked up and down the street, and seeing nothing started diagonally towards Air. Landes’ store, hut was struck by the automobile soon afterwards.

The theory of the defendant is that she ran from the house into the street and was struck by the right front wheel of ⁵⁵² the automobile. The chauffeur testified: “The little girl I did not see until she run into the side of the front wheel of the car; as soon as I saw her, I veered the car a. little to keep from running over her, but the momentum of the child carried her on and the car struck her and she rolled over, and the rear wheel went over her.” Mrs. Lewis, who was on the pavement of No. 3010, said: “She run out off the steps, after talking to the man, right out in front of the automobile and never stopped; I s'een it, standing there; I seen it all; she run out and the front wheel struck her in the side of the head and the hind wheel run over her, and I just stood there and I couldn’t move.” She was asked where the child was picked up and replied: “Out in tbe street between her house and the next house; she run cata-cornered between the two trees.” There was a line of trees on the west side of Cedar Avenue, but as the accident was on November 15th, and as no mention is made of them obstructing the view, the leaves: were probably off. In their brief the attorneys for the plaintiff say the controverted facts are, broadly speaking: 1. “Whether Carroll’s grocery wagon was standing on the west side of Cedar Avenue near 3008 at the time of the accident, and thereby screened from the view of the plaintiff the approaching automobile; 2. Whether the plaintiff in crossing the street used due care in looking and listening, or ran heedlessly, and without looking, into tbe defendant’s (appellee’s) machine; 3.

Whether Maynard, the chauffeur, by the exercise of proper care, could have avoided the accident; the decision of which depends upon — (a) Whether he should have sounded his horn; (b) Whether he should have seen, or did see, the plaintiff- in time to either stop his car, or divert its course, and thus have avoided the accident; (c) Whether he caused the accident by changing the course of the automobile to the westward after he cleared the wagon.” As already stated we will assume that a wagon was standing with the rear in front of the steps of 3010, but the evi ⁵⁵³ dence is strong, if not conclusive, tliat the plaintiff could have seen the car approaching if she looked before leaving the curb. There is certainly evidence strongly tending to show that she ran heedlessly, and without looking, into the defendant’s machine, and if it he conceded that that was * question for the jury, the defendant had the right to have the jury instructed as to his theory of the case. We will consider the questions (a), (?;) and (e) stated above in discussing the prayers. The defendant’s first prayer does not seem to be objected to.

It instructed the jury that if they found “that the injuries complained of resulted from an unavoidable accident unmixed with negligence on the part of the servant of the defendant in charge of the automobile referred to in the evidence, then the verdict of the jury must he for the defendant,” and then went on to define negligence. The defendant’s second prayer, the granting of which the appellant contends was specially injurious error, was- as follows: “The Court, instructs the jury that if they find from the evidence in the case that the infant plaintiff stepped or ran in the way of the automobile of the defendant when it eould not be arrested in its course, and under circumstances where with ordinary care on the part of the chauffeur the car could not be brought to a pause early enough to save tire infant plaintiff from injury, the defendant is not liable, and the verdict of the jury must he for the defendant.” That prayer is the same as the defendant’s eighth granted in McDonnell’s Case, 43 Md. 534 , and the defendant’s third granted in Carneal’s Case, 110 Md. 211 , hut in neither case did this Court pass on them, as the appeals were by the respective defendants. While such a prayer might be misleading in some cases ” we do not see how it could have been in this. From what we have said it will he seen that the defendant’s theory was that the plaintiff ran from the sidewalk into the front of the car so suddenly and unexpectedly that it was impossible for the ⁵⁵⁴ chauffeur to avoid striking her.

The Court in granting the-plaintiff’s first prayer had told the jury, in very broad terms,, that if they found the “injury might have been avoided by the exercise of ordinary care and prudence on the part of the defendant’s servant or agent in- the management and operation of said automobile,” the defendant was liable, unless they also found that the plaintiff was guilty of contributory negligence, and by the second prayer that even if the plaintiff was negligent she was entitled to recover if the jury found that the chauffeur “could have avoided the acci- . dent by the exercise of ordinary cai’e, after he saw,_ or by the use of ordinary care might have seen that the plaintiff was in the roadway of Cedar Avenue, and in danger of being struck by the said automobile.” Of course if the defendant’s agent had been running the car in a negligent manner, for example was running at excessive speed, the prayer as it is framed would be objectionable. A chauffeur might not be able to stop or check his machine in time to avoid an accident, because he was running at such an excessive speed that he could not stop or check it, and under such circumstances he would not be excused. But there is not a particle of evidence that the chauffeur of the defendant was running at such a speed — on the contrary witnesses for the-plaintiff as well as those for the defendant testified that, he was running at a moderate, or at least at a lawful speed. There could therefore be no objection to this prayer for not sAibmitting the question of speed to the jury.

Whether or not the chauffeur was guilty of negligence in not sounding his horn must depend upon Avhether he was required to do so by statute or ordinance, or whether the-circumstances were such as to require him to give some such signal. As will be seen in our consideration of the defendant’s fourth prayer Ave are of the opinion that Article .1, Section 4 of the ordinance of 1908, Avas not applicable, and we also think that no negligence can be imputed to him by reason of Section 150 of Article 5G of the Code of 1912., ⁵⁵⁵ Tlie chauffeur testified that he did not see the plaintiff until she was within a few inches of his machine. There is nothing to contradict that statement, and if the wagon was there as the plaintiff contends and we assume to he true, he could not have seen her as he went around the wagon. He had no reason to suppose that either a child or an adult would run out from the sidewalk at that point, from behind the wagon.

There is no statute and no ordinance in evidence which requires drivers of automobiles to sound their horns every time they pass around other vehicles standing in the street, as this wagon was. Such signals would be useless in many localities if they were so required, as they would be so frequent as to he of little or no warning. There was nothing in this instance to suggest to the chauffeur that it was necessary to blow his horn to