Vonderhorst Brewing Co. v. Amrhine

McSherry, C. J., delivered the opinion of the Court. This is a negligence case. Suit was brought by Charles H. Amrhine against the Vonderhorst Brewing Company of Baltimore, a body corporate, and the Maryland Brewing Company of the same city, also a body corporate, to recover damages for injury to himself and to his personal property, which was sustained by him in consequence of the alleged negligence of the servants of the two corporations, in driving a heavy brewery wagon into the wagon of the appellee. The collision occurred at the intersection of Baltimore street and Patterson Park avenue in Baltimore City on the I ith of December, 1900.

The declaration alleges that the wagon which the appellee was driving, was struck and run into by one of the wagons belonging to the appellants ; that the latter wagon was then under the direction and control of the agents and servants of the appellants and was being driven in a negligent and careless manner, and that by reason of the collision thus brought about the appellee was violently thrown from his wagon and was seriously, painfully and permanently injured; and that the injuries thus sustained were caused solely by the negligence and carelessness of the appellants, their agent and servant, and not by any negligence on the part of the appellee. To this declaration both defendants pleaded that they did not commit the wrongs alleged and upon this plea issue was joined. The jury was sworn and after a trial a verdict was rendered against both defendants and ip due season, after a motion in arrest of judgment and for a new trial had been overruled, judgment was entered upon the verdict, and from that judgment both of the defendants below have appealed. ⁴⁰⁹ In brief outline the facts relied on by the appellee to sustain the action are these : The appellee, who was a baker by occupation, was driving his bread wagon, drawn by two horses, along the south side of Baltimore street going east, and as he approached Patterson Park avenue, which intersects Baltimore street at right angles, he observed the brewery wagon coming south on the east or left hand side of Patterson Park avenue, towards Baltimore street. As the driver of the brewery wagon reached the north side of Baltimore street at its intersection with Patterson Park avenue, he suddenly turned the heads of his horses to the left as if intending to go east on Baltimore street in the same direction that the appellee was driving, but instead of pursuing that course, he quickly • drew his horses to the right to continue a direct course across Baltimore street and to go south of the latter street on Patterson Park avenue.

At that moment, and in consequence of that sudden change of direction and by reason of his failure to look where he was going, the wheel of the brewery wagon came in contact with the pole of the appellee’s bread wagon and broke the pole, frightened the appellee’s horses and they started at a rapid gait down the grade at that point, the wagon running in a zig-zag course, until it struck the curb near Milton avenue, where the appellee was thrown out and seriously and painfully injured. At the close of the plaintiff’s case, the defendants asked the Court to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover but that prayer was rejected and an exception was thereupon reserved. After this action of the Court the defendants below, the appellants here, proceeded to offer evidence in defense and that step constituted a waiver of their first exception. Barabasz v. Kabat, 91 Md. 53 .

When the evidence upon both sides was closed, the appellee presented one, and the appellants offered eight prayers for instructions to the jury. The appellee’s prayer was granted as were also the second, fourth and fifth prayers of the appellants, whilst their first, third, sixth, seventh and eighth prayers were rejected. Their first prayer is a repetition of the one offered at the con ⁴¹⁰ elusion of the plaintiff’s case, as already stated, and again the Court was asked to say to the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. The main contention in the case is that which is raised by the prayer just alluded to.

The alleged dearth of evidence consists, according to the contention of the appellants, in a failure on the part of the appellee to prove that the driver of the brewery wagon was a servant of either of the appellants; secondly, in an omission to show that the Vonderhorst Company owned or had any interest in the brewery wagon which collided with-the appellee’s conveyance; and finally in a total absence of proof to establish negligence in the driver of the brewery wagon; whilst it is also insisted that the injury resulted from the contributory negligence of the appellee himself. There are a few subsidiary questions arising on other rejected prayers and on the appellee’s granted instruction, besides some collateral objections assigned as grounds for reversal, which the appellants have brought to our attention upon a motion in arrest of judgment filed in the trial Court after verdict. We will deal with these in the order just named. First, then, as to the identity of the driver, that is to say, as to whether there was evidence from which the jury could legitimately infer that the driver of the brewery wagon was the agent of the defendants.

There is evidence in the record showing that the wagon which collided with the plaintiff was owned by the Vonderhorst Brewing Company. And there is also evidence, adduced by the defendants, that the wagon which ran into the plaintiff’s team had on it the name of the Vonderhorst Brewing Company. These facts were sufficient to justify the jury in concluding that the driver of the wagon was the agent of the owner of the wagon. That proposition was expressly sustained by Lord Chief Justice Denman in the case of Joyce v. Capel and Slaughter, 8 Car. & Pay, 370.

It was there held that in an action for damages done to the plaintiff’s lug-boat by the negligence of the defendant’s servant in steering the defendant’s barge, when it was proved that the barge was the defendants’ but the plaintiff’s witnesses ⁴¹¹ could not identify the barge-man who was steering the barge, that this was prima facie evidence that the barge was steered by the defendants’ servant, and that if the barge was on hire or was taken by any other person, it lay on the defendants to show that. And so in the case of Edgeworth v. Wood, 58 N. J. L. 463, s. c. 33, Atl. Rep. 940, following the decision of Lord Denman, it appearing in an action against an express company for negligence in running over the plaintiff by a wagon drawn by two horses, that the wagon was painted in a peculiar manner and marked with the name of the express company and a peculiar device used by it; the Supreme Court of New Jersey held that the evidence that the wagon which ran over the plaintiff was so painted and marked, was sufficient to justify the inference that the defendant express company was its owner, and that such inference established prima facie that the company was in possession and control of the wagon by the driver as its servant. Other cases to the same effect might be cited but it is not deemed necessary to allude to them because the proposition is quite self-evident.

It is a reasonable presumption that a person driving the team of another is the agent or servant of the owner of the team, unless it be shown by the owner of the team that the contrary is the fact. Secondly, the evidence is explicit that the brewery wagon belonged to the Vonderhorst Company. At the conclusion of the plaintiff’s case the counsel for the defendant company admitted in open Court that the wagon of the Vonderhorst Company at the time of the accident belonged to the Maryland Brewing Company. It was further admitted that the wagon which did the injury had painted on its side the words, The Vonderhorst Brewing Company, and that the Maryland Brewing Company was at that time the owner of the wagon.

Now if the Vonderhorst Brewing Company had asked the Court to instruct the jury that there was no legally -_ufficient evidence to entitle the plaintiff to recover against it, the Vonderhorst Company, that prayer, under the concession that the wagon belonged to the Maryland Brewing Company, would ⁴¹² probably have been granted, and the Vonderhorst Company would have been relieved from liability; but the prayer which was actually presented, denied the right of the plaintiff to recover against either of the defendant companies, and therefore was properly rejected, if there was sufficient evidence before the jury to show negligence on the part of the driver of the brewery wagon. When two defendants are sued for a tort like this, and one is shown not to be answerable, it would be an obvious error, if the other be liable, for the Court to instruct the jury that there is no evidence legally sufficient to entitle the plaintiff to recover at all. Third, as to the alleged negligence of the driver of the brewery wagon. There is, as is almost invariably the case in actions of this character, some conflict in the evidence, though there is practically none on this precise point.

If the version of the occurrence as given by the appellee and his witnesses-in their testimony be correct, there was negligence on the part of the driver of the brewery wagon. While in England the rule is that, upon the meeting of vehicles going in opposite directions on the highway, each shall pass to the left, the general rule in this country is that, in such a case, each shall turn to the right. 18 Am. & Eng. Ency. Law, 579.

Each driver may assume that the other will obey the law of the road and will drive to the right, and each has the right to act on that assumption. Ib. 579-580. It is sometimes said that there is a presumption of negligence on the part of a person who is on the wrong side of the road; Chaplin v. Hawes, 3 Car & Pay. 554; while in other cases it is stated merely that such fact is evidence of negligence to go to the jury. 18 Am. & Eng. Ency.

Law, 580. There are circumstances which vary the application of the general law of the road; so that an act which under one condition of facts would not be either negligence or evidence of negligence, under other and different surroundings, would be one or the other or both. The general subject is very fully discussed in a note to Broschart v. Little, 11 L. R. A. 33. It has been held that pulling the wrong rein, whereby a collision occurred, was negligence, ⁴¹³ Wakeman v. Robinson, 1 Bing. 214; and also that it is the duty of a driver to look where he is going and that a failure to do so resulting in an injury is actionable negligence.

McCloskey v. Cha. Lake Ice Co., 174 Pa. St. 34; s. c., 34 Atl. Rep. 287 .

The driver of the brewery wagon was on the wrong side of the highway. He suddenly turned eastward on reaching Baltimore street as if intending to go in that direction down that thoroughfare, and then without warning, and apparently without looking to see whether the appellee was in the path that he changed his course to take, he turned sharply to the right to cross Baltimore street just in time to bring his wagon in collision with that of the appellee. A single glance would have shown him that by making the last turn he would inevitably come in contact with the appellee’s approaching