Vacek v. State

Digges, J., delivered the opinion of the Court. The accident for which damages were recovered in this suit occurred while one William C. Vojik was driving an automobile belonging to Emil Vacek, the defendant. The occupants of the automobile were five in number, the driver and Havel ick occupying the front seat, and Rokos, Lehicka and Vacek the rear seat. The accident resulted in the death of Rokos, and the suit is by the State of Maryland for the use of his widow and two' infant children against Vacek.

It occurred while the party were returning from a shore owned by Vaeek on Middle River between 12.30 and 2 o’clock in the morning of Hovember 29th, 1926. The day before the accident, being Sunday, the occupants of the car had gone (but not together) to Dundalk, a shore resort; A^acek having gone there in his own machine with some other guests, but, except for Havelick, not those who were in the machine at the time of the accident. About 7 o’clock that evening one lioska borrowed the defendant’s machine to go back to Baltimore, and Vojik, although he had no operator’s license, accompanied Hoska to Baltimore and brought the machine back to Dundalk. About 11 o’clock P. M. the defendant decided to go to his own shore.

In the examination of the defendant he was asked: ⁴⁰² “Q. Just tell the jury iu your own way what happened after Mr. Rokos got in your machine, whether you had any conversation about driving these gentlemen out to the trolley line or taking them down to your shore on Middle River ?' A. Well, they called for me, and I was sitting at the table there, with the rest of the fellows sitting down, and they said, ‘Emil, let’s go,’ and they went out, and they were all in the machine. I did not know he was in there. I got in the car, and Willie was at the wheel. I said, ‘Willie, let me get there and drive out.’ He said, ‘I can drive.’ I said,. ‘I know, but go ahead and let me get there.’ Q. What conversation did you have with these gentlemen who were in the' car in reference to how they could get back to Baltimore?

A. Well, I mentioned it to them, some time before, ‘I am going to make a trip- down to- my shore at Middle River for some stuff I have down there,’ and I suggested, ‘I am going-down, and if you fellows don’t want to go down, I will take you to the trolley line and you get off.’ I said, ‘I am going-down, if them tools lay out and open to the rain they will get ruined, and besides somebody may take them away from me.’ And then they suggested, ‘Well, we will go- along.’ I said, ‘All right, and I bring them back.’ My shore is about almost an hour’s ride from the Dundalk shore. * * * Q. Well, tell about that conversation, especially what Mr. Rokos; said, if anything? A. They asked, ‘Where are you going?’’ and I said, ‘I am going down to the shore,’ and I said, ‘If’ you fellows want to get off,’ I said, ‘All right, here is the car.’ And they said, ‘Oh, we will take the trip for curiosity to see-how you are building at your place.’ It was more curiosity than anything else. We got to my shore about 12 o’clock. Q. And after you got there what did you do ?

A. I went there to look my tools over, gather up things, and they went around the place, and looked it over, and talked about-the cheapness of lumber, and stuff that I bought — I bought a lot of stuff, and they talked about it, and took a little time, and one said, ‘Let’s go.’ I said, ‘All right.’ By the time-I locked the doors, why, they was gone out to the machine,, and I got to the machine, and there was Willie and Havelick. ⁴⁰³ in the car. I gets in. T said, ‘Willie, let me drive that machine.’ ‘Oh,’ he said, ‘I can drive, it will he all right’ Mr. Ilavelick said, ‘Oh, let him alone, he is safe there,’ and then, as he said that, Mr. Lehicka, and Mr. Rokos came right along and sat down, and had to move hack to let get hack. They said, ‘What is the trouble V I said, ‘Willie wants to drive.’ They said, ‘All right, let him drive.’ Q. Who said that?

A. Mr. Rokos and Lehick said, ‘All right, let him go ahead.’ We had to wedge together when they pushed over my feet. It was cramped, the car, the Eord sedan, was cramped, and you. had to jerk over, the car is so small. T said, ‘All right, hut I don’t feel that way.’ They said, ‘Oh, you drive plenty, he is all right, let him drive.’ That was the whole situation of it.” On cross-examination the defendant said: “When I got out to my machine to drive it from Dundalk shore to my shore, Willie was at the wheel, and I told him to get away from it, and he let me drive. On the way back from my shore Willie got the wheel again and that time I let him stay there.

My only knowledge from personal observation of liis experience was that one trip that he made that Sunday afternoon when he drove my machine from town down to the Dundalk shore, and I have heard him tell me many a time that ho drive for a man at St. Helena. Before T left the Yacek shore to come home I did not ascertain from Yojik whether or not ho had a license to drive a machino. I was figuring ho is a competent driver and lie should carry one. 1 didn’t ask no questions. I was sitting on the right of Mr. Rokos in the back.

Mr. Lehicka was sitting on my left side in the corner. * * * When I got in the machine Ilavelick was sitting beside Yojik who was driving. I was the third one. 1 was talking to them about driving, and then Mr. Lehicka and Mr. Rokos got in right at one time, came right in the side. I do not know whether Rokos got in before Lehicka or not. They were both coming at one time, one right after the other.

When I actually got to the machine before' I got in Rokos and Lehicka were coming from the .shore end from the front around the construction. After I ⁴⁰⁴ got in I had to wait. I don’t think ahont a minute and a half or two. Q. And the conversation you had was before Eokos and Lehicka got up there, wasn’t it?

You had your conversation about driving just as soon as you got there? A. When I was standing in the car they happened to come in, and had the conversation, and they said, ‘What is the trouble?’ and I told them, and they said, ‘All right, let him drive.’ Q. Who said that ? A. Mr. Eokos and Mr. Lehicka. Eokos first, and Lehnicka with him.

Q. You mean to say you would not let Vojik drive the machine if your guests had not said so, is that so ? A. I trusted my friends, because they knew he could drive as well as I did. Q. Who trusted who? A. The guests trusted that he will drive, he will drive all right all right, they trusted him as well as I did, and thought he was a competent driver.

That is what they said, ‘Let him go ahead, he is all right,’ because they knew he drove that evening, that afternoon. Q. Didn’t I understand you to say that when you got in the back of the machine and sat down it took Mr. Eokos and Mr. Lehicka about a minute and a half to come up ? A. I was not sitting there, I was. standing up inside the machine, talking to Willie, and when they just came in, then I had to move back and sit down. Q. Why did you go in the back of the machine at all before you decided who was to drive the machine?

A. He was in the machine. Q. Who was in the machine ? A. Mr. Willie and Havelick was in front. I said, ‘Willie, let me get in there.’ You have to crawl out that seat, and it is all cramped.

And I said, ‘Willie, let me get in there and drive.’ Havelick said, ‘It is all right, let him drive.’ Q. Who said that ? A. Mr. Havelick. Q. Eokos was not there at all ? A. And then come Mr. Lehicka and Eokos in, and I had to move back and sit down.

That is what I did. I had to sit back. And that is where they said, ‘Oh, let him drive; you drive plenty,’ and Lehicka said, and Mr. Eokos said, ‘How, let him drive,’ he said, ‘You drive plenty, sit here with me’ ? Lehicka said,, ‘He is all right, he is pretty good driver.’ And that was the whole situation.

Q. What did Eokos know about his driving ? A. He knew he came back that afternoon.” ⁴⁰⁵ The testimony of Vojik was that he went down to Dundalk shore about 1.30 or 2 o’clock in the afternoon on a street car; iie did not go with Vacek or Rokos; he came back to town that afternoon in Vaeek’s automobile and drove it back to the shore. Tie knew Vacek well at that time; also knew Rokos. He was not a licensed chauffeur and never had a license.

He had started the trip which ended in the accident from Vacek’s shore; he did not know how far it was from the Dundalk shore; it would take about an hour to go there from Dundalk shore. When he left the Dundalk shore to go to Vacek’s shore, he went in Vacek’s machine, together with Vacek, Havelick, Rokos, and Lehicka. Vacek drove the machine from Dundalk shore to his own shore, and during that trip he was sitting in front with Vacek, and the other three men were in the rear. They left Vacok’s shore to come home about 12.30 or 1 o’clock in the morning; Rokos was in the back; the witness was behind the wheel.

The brakes on the Ford sedan held all right; he had driven the car enough to know whether it was running all right or not, and it was in running condition; he did not know how old a Ford it was. When they started back from Vacek’s shore, witness got in the car first and sat behind the wheel, the rest got in the back, Havelick in the front, and no more was said about it. “They let me drive.” “Q. When you say they let you drive, you mean the other people in the car? A. They were all satisfied with my driving. (The Court) : Did they have any talk or make any arrangements ?

Q. That is what I want to know. How did they express themselves about the driving? A. I did not pay much attention to it. I started the car and went off.

Hone of them never told me not to drive it. Q. Did they say anything to Mr.