West v. Belle Isle Cab Co.

Hammond, J., delivered the opinion of the Court. Susie Vera West appeals from a judgment in favor of the Belle Isle Cab Co., Inc., the defendant below, entered upon a verdict of the jury. Mrs. West was struck by a Belle Isle cab on the night of October 7, 1950 on Pennsylvania Avenue in Baltimore. This is as far as the parties go in agreement.

Mrs. West says she was crossing Pennsylvania Avenue from the west side to the east side at its intersection with Bloom Street, within and to the north side of the pedestrian crosswalk, when the cab struck her. She was supported in her testimony by two witnesses — the manager of the Sphinx Club, a night club on the east side of Pennsylvania Avenue four doors north of Bloom Street, and a passerby, employed at the Bethlehem Steel shipyards, who was walking south on Pennsylvania Avenue. All three were direct and explicit in their testimony that the appellant was walking within the pedestrian crosswalk and that it was there that she was struck. The appellee’s version of the accident is that the cab, going north on Pennsylvania Avenue, had double parked in front of the Sphinx Club, some distance above the ²⁴⁸ crosswalk, to let out a woman passenger, and that the driver had started up and had gone four or five feet when Mrs. West, who had stepped down from the curb in front of the Sphinx Club headed for the west side of Pennsylvania Avenue, suddenly came out from between two parked cars.

The testimony of the cab driver, that of the woman passenger who had alighted from the cab and headed for the Sphinx Club, and that of the man who had remained in the cab to be taken to another destination, is likewise direct and explicit that the accident happened in front of the Sphinx Club as the appellant appeared suddenly from between parked cars as she was crossing from east to west. There also came into the case a statement signed by the cab driver the day following the accident and filed by his employer with the Public Service Commission, as required by Section 39 of Article 78 of the Code, 1951 Edition, which included the following in reference to Mrs. West: “She claims she walked from the west side to the east side of the cab and had walked into same.” The appellant says that the court erred to her prejudice in its charge to the jury in at least three particulars: first, she says that the necessary and unfair effect of the charge was that the jury could find only for the defendant, if they determined that the accident occurred: “in front of the Sphinx Nightclub, or in the vicinity of the entrance to the Sphinx Nightclub.” Second, it is claimed that by refusing to charge the jury on a doctrine of last clear chance, the court compounded its own error in that the jury might have found the doctrine applicable even under the appellee’s version of the accident, and certainly could have under an alternative theory of the appellant, namely, if the appellant actually was crossing Pennsylvania Avenue from west to east in front of the Sphinx Nightclub. The third complaint is that the court, although it instructed the jury that contributory negligence might be found from the testimony of any witness on either side, including ■ principals, it re ²⁴⁹ fused to add that primary negligence might likewise be so found. An examination of the charge in the light of the evidence refutes these claims.

The jury first was told that the court’s instructions as to the law were binding, and its comments on the facts and the witnesses “purely advisory”, and in no way binding upon them. Then they were told that the happening of the accident caused no presumption of negligence and that the burden of proof was on Mrs. West. The court instructed them that there were two real questions to decide in reaching the verdict: “First, was the accident caused by the negligence of Swogell, the operator of the Defendant’s cab, and secondly, did any negligence on the part of Mrs. West also contribute to the happening of the accident?” They were advised that it was for them to decide which of the versions was correct, and “by your verdict you are to say which of the parties was negligent”. They were, the court said, entitled to use their experience as intelligent men and women and take into consideration “what the witnesses say, its probability, their manner of saying it, and your understanding of the whole situation”.

Negligence was defined and the legal definition of crosswalk given. The jury was instructed that pedestrians have the right-of-way at crosswalks. They were told that: “if you find as a matter of fact that Mrs. West was crossing in the pedestrian’s crosswalk, she would have the right-of-way over the driver of the taxicab.” That means, the court went on: “. . . that the driver of a vehicle as he approaches the intersection must be alert, must be on the lookout for pedestrians, must have his automobile under control, operating at a speed that is reasonable and proper under the circumstances, and be prepared to meet any sudden emergency, so that if you find from the testimony that Mrs. West was actually in the pedestrian’s crosswalk crossing from the west side of Pennsylvania Avenue to the east side at Bloom Street and the driver of the automobile failed to see her and hit her, then you would ²⁵⁰ be entitled to find, if you find those facts, that the driver of the cab was negligent.” The court then added: “. . . there is testimony from which you could find that the accident did not happen at the pedestrian’s crosswalk, but happened in front of the Sphinx Club. . . If you find from the testimony that the accident did not happen at the crosswalk but happened in front of the Sphinx Nightclub, or in the vicinity of the entrance to the Sphinx Nightclub, then you might find that the operator was not negligent and that Mrs. West was not in a position where she had the right-of-way over the cab, but where the cab driver had the right-of-way over her, and while he must use ordinary care or caution in the operation of his automobile between blocks, and do what he can to avoid running over people, the testimony of passenger Proctor and the driver was that she suddenly appeared at the right front corner of his •cab, and the testimony of Miss Dorsey was that she had stepped off of the east pavement of Pennsylvania Avenue between parked automobiles into the right front corner of the cab.

So that is the first question for you to decide when you reach the Jury Room: Was she on the crosswalk or did she step out from the sidewalk up near the Sphinx Club?” The court discussed the question of damages and concluded the charge thus: “Finally, if you find that the accident was due entirely to the .negligence of Swogell, the operator of the cab, without any negligence on the part of Mrs. West, allow her such damages as in your judgment would be a fair and just compensation for the injuries which she has sustained.” We think that the trial judge fairly presented the issues which the evidence required to be submitted to the jury. The charge must be considered as a whole and not condemned because isolated portions of it do not seem to do justice to one side or the other, nor because of the method of expression. Fisher v. Baltimore Transit Co., 184 Md. 399, 402 ; Larkin v. Smith, 183 Md. 274 ; Reindollar v. Kaiser, 195 Md. 314 . As ²⁵¹ Judge Marbury said for the court in Bull Steamship Lines v. Fisher, 196 Md. 519 , 529: “The purpose of oral charges is to tell the jury in simple words what the law is in a case before them, and we will not be too particular in criticising the words used if the result is sufficient.” The plaintiff’s version of the accident was fairly and fully presented and the jury told that if they found the facts contended for by the plaintiff, they: “would be entitled to find . . . that the driver of the cab was negligent”.

The defendant’s version of the accident was described and the jury told that if they found the accident happened as she stepped out in front of the cab near the Sphinx Club, they “might find” that the driver was not negligent. They were instructed that if the accident did happen in front of the Sphinx Club and they found that: “the accident was due to her fault, and no fault on the part of the driver of the cab, or if you find that it was due to the fault of both Mrs. West and the driver of the cab, she, of course, cannot recover. In the first case there would be no negligence on the part of the driver, and secondly, if you find it was the fault of both then she would have been guilty of contributory negligence and cannot recover and that would be the end of the case.” As we read the record, the appellant received more favorable treatment in the charge than was due her. The question of the relative negligence of Mrs. West and the cab driver in the situation presented by his starting from the double parked position and her sudden stepping out thereafter from the curb between two parked cars, was left to the jury.

They were told that in such case they “might” find the defendant not negligent and the plaintiff negligent. Under the authority of cases such as Domeski v. Atlantic Refining Co., 202 Md. 562, 567 , 97 A. 2d 318 , 316; and Cocco v. Lissau, 202 Md. 196, 202 , 95 A. 2d 857, 860 , it would have been proper