Wingert v. Cohill

Stockbridge, J., delivered the opinion of the Court. , Miss Martha A. Wingert lived just off from the State highway, known as the Western Pike, and about- two miles west ■-of Hagerstown, in Washington County. Access to her dwelling from the pike was by means of a private lane, which led ..off from the pike: On the 12th of April, 1919, she was returning home in an automobile, which she was driving, the machine being headed towards Hagerstown. Just west of the entrance to the Wingert lane a drainage ditch crossed the pike, and there was on the margin of the pike at either end of the ditch a. culvert for the protection of those using the highway. Further to the west there was a slight rise of grade for a distance in the neighborhood of five hundred feet.

Following Miss Wingert’s car was the car of the plaintiff, Mr. Cohill, and as he passed the crest of the rise, also headed toward Hagerstown, he had full view of, and did see, the car of Miss Wingert ahead of him. Pie was on his way from Hancock to Baltimore to keep an engagement in the latter city, and was running a,t a speed of from twenty to twenty-five miles per hour. Miss Wingert’s car was proceeding at a much less speed, somewhere from twelve to fifteen miles an hour, as she was getting ready to turn from the pike into the lane leading to her home, and by reason of the acute angle made by the intersection of the lane and pike, the turn was ⁴⁰¹ necessarily a short one. The plaintiff testified that he gave three signals, by means! of the horn on his machine, of his intention to pass Miss Wingert, but there is no evidence to show whether these signals were or were not heard in Miss Wingert’s car.

Soon after he had made the signals with his horn, he observed Miss. Wingort’s car drawing closer to the right side of the road, and he then increased the speed of his own ear for the purpose of passing. There was a distance of six to eight feet between the end of the culvert and the side of the Wingert lane, and as she made this, sharp turn sho held out her hand as. a, warning that she was about, to cross the pike. Just how far behind her at that moment Mr. Cohill was is not quite clear, evidently not very far.

The extended hand was observed by John Caddie, wlm was riding on the rear seat of the Cohill car, and he describes the relative position as being but ten feet behind Miss Wingert’s car, hut the distance must have been somewhat greater, inasmuch as the rear ear must have had between that and the loading car the six of seven feet between the Wingert lane and the culvert, together with the length of the culvert itself, but whatever the distance in actual feet was, it was dose enough behind that, aS' Mr. Cohill swung his car across to the right-hand side of the road in an endeavor to pass behind Miss Wingert’s car, tho rear wheel on the right side of the machine which he was driving came in contact with the end of the culvert, tearing off the rear wheel, displacing tin1 tank, throwing the engine of his car out of place and backward, and otherwise damaging his machine', and it is to recover for these injuriéis to tin. car that the present case was brought. There is one matter of ewidenee not yet alluded to. Mr. Seibert, a motor vehicle' offieeu", who arrived on the seem' about five minutes after the11 accident, testified that there1 was a skidding track plainly observable for one hundred and fifty-nine feet back of fire5 culvert, tbe collision with which e-anso the damage. ⁴⁰² There was testimony given as to the distance within which a car could be stopped by the application of the brake at two or three different speeds, as- the so-called skid tracks might be deemed as evidence tending to show the endeavor made on the part of Mr. Oohill to stop his car, and so prevent the accident, or as evidence tending to show his speed to have been greater than he had testified. The road was in good condition and dry, yet Mr. Seibert testified that the marks were plainly visible.

These constitute in brief the leading facts brought out in the evidence. There is but one bill of exceptions in the record, and that was reserved to the action of the Court upon the prayers. The plaintiff offered three prayers; the first and third of which were granted, and the second was rejected; but as this is the defendant’s appeal, the action of the Court upon the plaintiff’s second prayer becomes immaterial. The plaintiff’s third prayer was the usual damage prayer in such cases.

The plaintiff’s first prayer was as follows: " “The jury are instructed that if they find from the evidence that the plaintiff blew his horn when approaching the defendant in her automobile, and that the defendant drew her automobile to the right side of the road, and that therefore; the plaintiff had reasonable cause to believe that he was to pass the automobile of the defendant, and then without warning or signal, or without looking back she negligently swerved her automobile across the road, and if the jury shall further find from the evidence that the plaintiff did what any reasonable prudent man would have done under the circumstances, then the jury must find for the plaintiff, provided they further find that the injury was caused by the negligence of the defendant and not by the negligence of the