Thompson v. Sun Cab Co.

Parke, J., delivered the opinion of the Court. The action in this case was brought by Raymond Thompson, forty-seven years old, against the Sun Cab Company, a corporation, and Joseph D’Assenze, its agent, as joint tort-feasors, for injuries sustained by the plaintiff as a result of his being struck by a taxicab negligently driven by Joseph D’Assenze as the agent of its owner, the Sun Cab Company. The accident occurred, about a quarter after 9, on the rainy night of April 8th, 1935, at the intersection of Bank and Bouldin Streets in Baltimore City. The defendants were laid under rule to state the particulars of their general issue plea, and replied by setting up as their defence that neither the defendants jointly, nor did either of them, either own or operate the taxicab which hit the plaintiff.

The parties went to trial, and the single question is the propriety of the court’s action in granting, at the close of the plaintiff’s case, a prayer instructing the jury that the plaintiff had offered no evidence legally sufficient to entitle him to recover against the defendants. The jury rendered its verdict for the defendants in conformity with this instruction, and the plaintiff appealed. There were but two witnesses who testified. The plaintiff was one, and the other was the doctor at the hospital ³⁰² where the plaintiff was taken immediately after the accident.

Giving to this evidence all the force of which it is susceptible in either directly or inferentially establishing the facts, the plaintiff failed affirmatively to prove a cause of action against the defendants. In the first place, the plaintiff was bound to produce testimony which would show, or from which it could be inferred, that the two defendants were jointly liable for the wrong alleged. There is not a scintilla of evidence that the defendant Joseph D’Assenze was the agent of the Sun Cab Company. The plaintiff did not identify him as the driver, nor is there any proof whatsoever that this defendant was, at the time of the accident, either the driver of the vehicle or responsible for its operation; or in the vehicle or in the service of the company.

If it be conceded that there was testimony' tending to establish negligence on the part of the operator of the taxicab and that it was owned by the defendant corporation, the plaintiff, in his action against the two defendants, failed to prove his averment that the two 'defendants, whom he had united as jointly responsible wrongdoers, were the two wrongdoers who had committed or were responsible for the wrong alleged, and, so, he was not entitled to go to the jury as against the two defendants. Buckey v. White, 137 Md. 124, 131 , 111 A. 777 ; Louis v. Johnson, 146 Md. 115, 119 , 125 A. 895 . See State v. Boyce, 72 Md. 140, 142 , 19 A. 366 ; Hambleton v. McGee, 19 Md. 43, 47 ; Barker v. Ayers, 5 Md. 202 . Since the action was ex delicto and a joint liability need not be proved, the variance on the proof in its failing to show the liability of one of the alleged defendants was not necessarily fatal to the plaintiff’s right of action, which could have been sustained against one or more or all of the alleged joint tort-feasors as the plaintiff might elect or the evidence establish.

So, the verdict and judgment could have been against one joint tort-feasor and for the other. The nonliability of one of the joint tortfeasors did not appear until the close of the plaintiff’s case, and objection could then be made as a variance. ³⁰³ The prayer offered put the plaintiff to his election. He could have amended his declaration by asking leave of the court to strike out the defendant against whom his proof had failed, and the cause would then have proceeded against the remaining defendant. Code, art. 75, secs. 39, 43, 44, 45.

See article 50, sec. 12; 1 Poe, Pl & Pr., secs. 384, 385, 385A, infra.; See Atkinson v. Railway Co., 137 Md. 632, 636 , 113 A. 110 . Here the plaintiff did not amend, and, so, a judgment of nonpros, would have been properly entered by the court in favor of the defendant whom the evidence had not ¡shown to be liable, if the prayer submitted by the defendants had not gone to any right of recovery by the plaintiff. Powell v. Bradlee & Co., 9 G. & J. 220, 275 ; Pendergast v. Reed, 29 Md. 398, 402, 403 ; Herzberg v. Sachse, 60 Md. 426, 433, 434 ; 1 Chitty on Pleading, ⁹⁷. The remaining and principal inquiry is whether or not the plaintiff has a right of action against the other defendant, the owner of the taxicab.

On the night of the accident, the plaintiff, who lived on the east side of Bouldin Street, went south on that street to buy cigarettes. Although it was raining when he set out, he had neither umbrella nor raincoat. After he bought the cigarettes, he started to go back. It was then raining hard, and he was walking rapidly north on the east side of Bouldin.

Street, which is intersected, at right angles, by Bank Street one-half of a block south of the plaintiff's home. When he reached Bank Street, the plaintiff stopped and looked to the right and to the left, and, not hearing a thing, started across the street. He “got near halfway across the intersection” and a taxicab, going west, struck the plaintiff below the kneecap of his right leg with the left side of the bumper and knocked him back to the left, about five feet, with both bones of his right leg broken. He testified that he saw the taxicab, which had stopped, when he got up, but he does not tell where it stopped.

Two men approached him! from the taxicab and said that they had hit the plaintiff and that they would take him to the hospital, and they did. One of these men gave his ³⁰⁴ name, which was not that of the defendant, and the name of the other is not known. The plaintiff testified that he was unconscious from the time he was taken into the taxicab until after he was in the hospital. It does not appear from the record that the traffic at the intersection of the two city streets was controlled by traffic officers, so by the terms of the statute all pedestrians had the right of way at the street crossings, (Code [Supp. 1935] art. 56, sec. 209; Brown v. Patter,son, 141 Md. 293, 299 , 118 A. 653 ; Merrifield v. C. Hoffberger Co., 147 Md. 134, 140 , 127 A. 500 ; Deford v. Lohmeyer, 147 Md. 472, 475, 476 , 128 A. 454 ; Parr v. Peters, 159 Md. 106 , 150 A. 34 ), but they did not have this right of way between street crossings, (Taxicab Co. v. Emanuel, 125 Md. 246 , 93 A. 807 ; Code, [1935 Supp.] art. 56, sec. 209, p. 764), nor did pedestrians have this right of way over the space within the inner lines of the defined or customary street crossings of the intersecting streets, (Chasanow v.Smouse, 168 Md. 629, 632 , 178 A. 846; Dashiell v. Jacoby, 142 Md. 330, 341 , 120 A. 751 ; Glenn Riley v. State, 140 Md. 137 , 117 A. 237 ), although the failure of a pedestrian to cross a street otherwise than upon the street crossing does not make the pedestrian prima facie guilty of negligence, although he has thereby forfeited his right of way, (Nelson v. Seiler, 154 Md. 63, 76 , 139 A. 564 ; Lusk v. Lambert, 163 Md. 335, 337 , 163 A. 188 ; Matthews v. Pohlmyer, 167 Md. 689 , 176 A. 479, 480 ; Legum v. State, 167 Md. 339 , 173 A. 565 ).

The plaintiff in the case at bar does not put himself on the street crossing over Bank Street, but merely said that he walked up to the street, started to cross, and was hit when he got halfway across the intersection of the streets by a taxicab coming from his right. There is no testimony by which it appears that the accident occurred on the street crossing, and therefore the plaintiff’s evidence establishes that the accident was in the intersection of the two streets where the plaintiff had no right of way and where the defendants were not bound to anticipate his presence. Supra; Brunes’ Motor Vehicle Law, ³⁰⁵ sec. 22, pp. 65, 66. So, the happening of the accident in the intersection of the two streets was not of itself sufficient to charge the defendants with negligence.

Neither was there any testimony to warrant a finding that, at the time of the accident, the taxicab did not have its lights lit, nor that it was moving at too great a speed, nor that it was incompetently or carelessly driven, or out of proper control. There is no primary negligence shown, unless the meager testimony on this record is legally sufficient for a jury to find that the taxicab was to the left of the center of the street when the plaintiff was struck, and that this deviation was the proximate cause of thé injury. It is true that it would have been negligence on