Sun Cab Co. v. Reustle

Mitchell, J., delivered the opinion of the Court. This is an appeal by the Sun Cab Company, a common carrier, and Lawrence A. Clark, the chauffeur of one of its cabs, from a judgment entered on the verdict of a jury, in favor of the plaintiff in the sum of $2,500, in the Superior Court of Baltimore City, on November 17th, 1936. The suit as originally instituted was against the above-named defendants, and also the Keystone Drive It Yourself System and James Nickens. On November 15th, 1935, a judgment by default for failure to plead was entered against the Keystone Drive It Yourself System, but inquisition on the judgment was not taken.

The defendant James Nickens was not summoned, and, upon issue joined on the general issue plea of the Sun Cab Company and Lawrence A. Clark, the case was tried as against the two last-named defendants. The single exception in the record relates to the ruling of the trial court upon the prayers, and it is stipulated therein that the injuries which the plaintiff sustained were of a permanent nature, as evidenced by the testimony of the physicians on behalf of both the plaintiff and the defendants, which testimony is omitted from the record. It was further stipulated by counsel for the appellants that the sole question to be pressed in this appeal is the propriety of the lower court’s refusal to grant the defendants’ A and B prayers. The A prayer is a general demurrer to the evidence, and the two prayers will be discussed in the reverse order of their sequence.

The plaintiff, appellee in this court, testified that on Sunday afternoon, July 7th, 1935, she engaged the taxicab of the Sun Cab Company at Fayette and Howard streets, in the city of Baltimore, to take her to the Alameda Boulevard ih said city, and that in the course of her trip, while travelling in a northerly direction on Harford Avenue, and just prior to reaching the point of ⁴⁹⁷ intersection of said avenue with Biddle Street, the driver of the taxicab, while running “fast,” passed another car, causing the taxicab to be steered to his left side of the avenue, as it entered the intersection. It is further shown by the record that, at the point at which the accident occurred, Biddle Street runs east and west; Harford Avenue, south of Biddle Street, runs north, and north of Biddle Street veers northeast; Aisquith Street intersects Biddle Street on the north; Harford Avenue and Aisquith Street forming a triangle on the north side of Biddle Street. The testimony of the plaintiff represents the only evidence produced on her behalf, and, with special reference to circumstances under which the accident happened, is as follows: “Q. Will you tell the court and the gentlemen of the jury, in your own words, what happened while you were in the taxicab? A. While I was a passenger in the cab, going north on Harford Road, the driver was going very fast; he was cutting in and out of cars, and before we came to the intersection near Biddle Street—Harford and Biddle, he cut around another car—got on the wrong side, and tried to get to the right, and shot across, and then the accident happened—he collided with another machine.

Q. What do you mean, ‘got on the wrong side’ ? A. He cut around this car and he was on the wrong side; on the left, and he tried to get on the other side. Q. On the left of what? A. On the left side.

Q. Of what? A. Of Harford. Q. Of Harford Avenue? A. Yes, sir.

Q. Was any warning given by the taxicab driver before proceeding across Biddle Street? A. No. He speeded across, and he didn’t slow down. Q. Did he blow his horn? A. No. Q. Did he slow up?

A. No. Q. Can you drive an automobile? A. No. I don’t drive, but I know he was going fast.” On cross-examination she testified that there was a great deal of automobile traffic moving along Harford Avenue on the afternoon of the accident; that she did not observe the direction of traffic movements, nor did she observe the automobile driven by the defendant James ⁴⁹⁸ Nickens; she was then asked: “Q. Do you know whether you had gotten across Biddle Street when it (the Nickens car) ran into you? A. He (the driver of the taxicab) got on the wrong side and tried to cross over, the taxi, and that i's all I know. There was a collision.” In direct conflict with the plaintiff's testimony, Edwin W. Moore, a witness for the defendants, testified that at the time of the accident he was driving a taxicab of the Yellow Cab Company, immediately in the rear of the taxicab in which the plaintiff was a passenger; that at the time the latter cab entered the intersection and started across Biddle Street, it was to the right of the center of Harford Avenue; that the driver was not trying to pass any other car, was traveling at a speed of about twenty miles an hour, slowed down at the intersection and blew his horn, and had crossed the center of Biddle Street when his taxicab was hit by a Plymouth car; that the latter car was driven at a terrific speed, eastwardly on Biddle Street, by Nickens; the Sun cab being struck on its left side at the point at which the front fender and running board join, with such force as to cause it to turn over twice and finally land on the pavement at the northeast comer of Harford Avenue and Biddle Street.

This witness further testified that the force of the contact caused the automobile driven by Nickens to turn in the direction opposite to that in which it was being driven at the time of the collision, and that at said time a traffic control at the scene of the accident was not in operation, nor was any trafile officer on duty at the street intersection. With slight variations, two other witnesses to the collision, on behalf of the defendants, corroborated the witness Moore. It is suggested by the appellants that the failure of the plaintiff to locate the exact position in the street intersection of the taxicab in which she was injured, at the time of the collision, presents a case under which a jury could not render a verdict without speculation or conjecture; and in support of this contention the recent case of Thompson v. Sun Cub Co., 170 Md. 299 , 184 A. ⁴⁹⁹ 576, is cited. In that case, however, the collision occurred between a taxicab and a street pedestrian, and it was not definitely shown by the pedestrian plaintiff, with reference to the street crossing, where or how the accident occurred.

The case is not analogous to the one before us; and in addition, it should be borne in mind that in the latter case the relation of carrier and passenger between the plaintiff and defendants is established, and the consequent duty of the carrier to exercise a higher degree of care for the safety of the passenger is fixed. Gardner v. Boston Elevated R. Co., 204 Mass. 213 , 90 N. E. 534 ; Stewart Taxi-Service Co. v. Spencer, 149 Md. 635, 646 , 132 A. 153, 157 ; Brune, Motor Vehicle Law, sec. 87; Mazzei v. Bennett, 141 A. 11 , 6 N. J. Misc. 317; McKellar v. Yellow Cab Co., 148 Minn. 247 , 181 N. W. 348 ; Anderson v. Yellow Cab Co., 179 Wis. 300 , 191 N. W. 748 ; Carlton v. Boudar, 118 Va. 521 , 88 S. E. 174 , 4 A. L. R. 4180; Berry, Automobiles (6th Ed.) sec. 1959. The statutory right of way rule provides: “All vehicles shall have the right of way over other vehicles approaching at intersecting public roads from the left, and shall give right of way to those approaching from the right.” Code, art. 56, sec. 209, as amended by Laws 1929, dh. 224. The only evidence in the instant case tending to show, with reference to the Sun taxicab, from which direction the automobile with which it collided approached, is that the latter approached from the left.

It is further shown that the automobile so approaching was being driven at an excessive speed, one of the witnesses fixing the rate of speed at “between forty or forty-five miles an hour.” Under this state of facts, the driver of the defendants’ taxicab was not called as a witness. And while that incident cannot be construed to raise a presumption against the defendant taxicab owner, it nevertheless eliminates from consideration testimony which might have proved valuable to the owner in the solution of the question raised by its B prayer. In substance the latter prayer is based upon the theory that the negligence of the defendant Nickens, in the operation of ⁵⁰⁰ the automobile which collided with the taxicab in which the plaintiff was a passenger, was the proximate cause of the accident; and the evident reason for the theory is the fact that Nickens approached from the left at an apparent excessive rate of speed. But it cannot be successfully contended that the bare possession of the right of the road justified the driver of the defendant’s taxicab in entering the intersection in the face of imminent danger, caused by an autojnobile approaching from hi's left.

In the case of Stewart Taxi-Service Co. v. Spencer, supra, wherein it was contended that the driver of the defendant’s taxicab, in which the plaintiff was injured, was justified in entering a street intersection without paying further attention to a car which at the time of entering the intersection he observed a block away, approaching from his right, and wherein one of the rejected prayers was in effect similar to the prayer now under discussion, it was said: