Weinstein v. Meyer

Shehan, J., delivered the opinion of the Court. The appellant, Samuel Weinstein, an infant, by his father and next friend, sued Aaron Meyer, in the Court of Common Pleas of Baltimore City, for personal injuries alleged to have been caused by the negligent operation of an automobile by the appellee. The case was tried before a jury, the verdict was for the defendant, and, from a judgment for costs, the plaintiff appealed. The important question here presented is raised by the overruling of special exceptions to the defendant’s third, fourth, and fifth prayers.

This action of the court submitted to the jury the question whether there had been contributory negligence on the part of the plaintiff. There were no general exceptions filed to the granting of these ²³⁵ prayers. The plaintiff contended that there was no evidence of contributory negligence on his part to support these instructions. This contention is the present subject of inquiry.

Aaron Meyer, the appellee, was driving southward on the Reisterstown Road, which runs north and south. When he came to Suffolk Avenue, which runs east and west and joins, but does not cross, the Reisterstown Road, he made, or started to make, a right-hand turn into this avenue. At this time it was daylight and clear. The street was dry and there was no need for lights on cars.

The evidence shows that the appellee was proceeding at a moderate rate of speed. The appellant is a boy, then about seventeen years of age, and, just before the accident, he had been walking on the pavement or sidewalk on the west side of Reisterstown Road and proceeding in a southerly direction, which was the same course as that of the automobile. When he came to Suffolk Avenue, he started to cross and had taken four or five steps into the bed of the avenue, and the injury complained of there occurred, as charged by the appellant. The only persons testifying to facts relating to the happening of the accident were the plaintiff and the defendant.

There is irreconcilable conflict in the testimony of the parties, and that of the appellant is inconclusive and contradictory in itself, but by a careful examination it may be gathered that the plaintiff proceeded to cross Suffolk Avenue and had gotten four or five steps from the curb, as testified by him, and was then, as shown by the appellee, talking to a girl or woman on the other side of the street and, while the plaintiff’s testimony was to the effect that he looked in both directions on Reisterstown Road before he proceeded to cross Suffolk Avenue, and saw nothing approaching, his testimony cannot be accepted as conclusive. It has been many times decided by this court that if a witness testified that he did look and did not see approaching danger when, as a matter of fact, if he had looked he could have seen it, such testimony cannot be accepted as credible ²³⁶ and is unworthy of consideration. Balto. & O. R. Co. v. Newton, 137 Md. 21 , 111 A. 481 ; Maryland Elec. Ry.

Co. v. Beasley, 117 Md. 270 , 83 A. 157 . The most rational conclusion to be drawn from the testimony is that he did not look, else he would have seen the approach of the automobile, because he had only made four or five steps before the alleged accident occurred. He evidently did not use that care and precaution that the law exacts of a pedestrian in crossing a city street, and his conduct at least was such that an inference of contributory negligence might be drawn, and this question was properly submitted to the jury. The facts and circumstances as disclosed afford some evidence to support the prayers that were granted.

The plaintiff himself testified, “I was proceeding down south towards Carlin’s Park when I came to the intersection of Suffolk Avenue and Reisterstown Road. As I got there I looked around and there wasn’t any machines passing and I proceeded across, and I was about four or five steps out and all of a sudden a machine swung around— Q. Now, Suffolk Avenue at that point, does that cross Reisterstown Road on the east of Reisterstown Road? A. No, sir. Q. In other words, it stops at Reisterstown Road?

A. Yes, sir. Q. When you looked to your left and your right did you see any vehicles