York Ice MacHinery Corp. v. Sachs

Sloan, J., delivered the opinion of the Court. The appellee, Lydia Sachs (plaintiff), who sues by her father and next friend, obtained a judgment against the appellant, defendant, the York Ice Machinery Corporation, for injuries sustained by her as a result of her having been struck by an automobile of the defendant. There are three exceptions in the record, the first to the admission of a photograph of the scene of the accident, the second on the denial of a motion for a mistrial, and the third to the rulings adverse to the defendant on the prayers. As two of the rulings were on prayers for an instructed verdict, one to the legal sufficiency of the plaintiff’s evidence and the other on the conclusiveness of the evidence of plaintiff’s contributory negligence, and these involve a consideration of all of the evidence, the rulings on the prayers will be first considered.

On November 11th, 1932, the plaintiff was crossing from the south side of Frederick Road, from the southeast corner of Longwood Street and Frederick Road, ¹¹⁸ when she was struck by or collided with a car of the defendant which was being driven by John J. Chiappy, an employee of the defendant, who was on his way from Washington to Baltimore. The collision happened at or near the center of the Frederick Road, opposite or nearly opposite the intersection of Longwood Street with the southerly side of Frederick Road. Longwood Street is not a through street, it running into a dead end at Mount Olivet Cemetery, which binds on the northerly side of Frederick Road for several blocks. According to the decision in Buckey v. White, 137 Md. 124 , 111 A. 777 , it is an intersection within the meaning of the rule as to the respective rights of pedestrians and vehicles at street or road crossings.

The accident happened about 6:30 in the evening. It was dark, but it was a clear night. The automobile lights were on and the street lighted. The defendant’s employee testified that he had a clear view in front of him.

But that suggests one of the difficulties or dangers of night driving and that is, that a clear view is limited to the path of the rays of the headlights. From either side, even on well lighted streets, the view is more or less obscured and there is always the danger of pedestrians, unobserved, coming into the path of an automobile, and, because of the limited range of a driver’s view at night, it behooves him to be more careful, especially as he approaches street intersections. The advantage at night is with the pedestrian, for he can see the headlights easier than the driver can see him. The plaintiff, a child of. six at the time of the accident, was accompanied by a girl of ten.

They started across the Frederick Road from the south side at its intersection with Longwood Street, to meet the older girl’s mother, who was coming home on a westbound street car. The companion, Eleanor Chaillou, testified that she had just put her “foot on the curb” on the north side of the street when she “heard the screeching of brakes,” when she “turned around and seen the left front bumper throw Lydia forward, side forward.” When struck by the auto ¹¹⁹ mobile, she was “in the middle of the two car tracks.” On cross-examination she said that when she (plaintiff) was picked up by “the man that hit her” she was “over in the other car track,” “closer to” her than to the automobile. On redirect examination, asked what she meant by the other car track, she said the one “closer to the cemetery.” She said before she started across the street she went “to the end of the curb” and started to cross the street “on the corner.” The plaintiff herself was not at all clear or certain how far she had progressed across the street when she collided with the automobile, leaving her companion’s testimony as the only evidence presented by her of the location, except that when Eleanor Chaillou asked the plaintiff to cross the street to meet Eleanor’s mother she was “right on the corner.” The plaintiff, asked on cross-examination whether she came from behind any cai* or any automobile, said, “No, I went across on the corner.” “Q. Went across right on the corner? A. Yes.” The plaintiff testified that she looked to her right and left before crossing the street, and saw a street car “down by the bend” coming from her right and an automobile “at the end of the cemetery wall,” at which there is a gásoline station, said by Eleanor Chaillou to be “a block away.” Eleanor also said she looked both ways and saw the automobile to her left at the gasoline station but did not see a street car.

The street car did not figure in the accident, and the other girl was probably right when she said she looked to the right and did not see a street car. The children were, according to their testimony, exercising the degree of care required before attempting to cross Frederick Road. Merrifield v. Hoffberger Co., 147 Md. 134, 140 , 127 A. 500 ; Taxicab Co. v. Ottenritter, 151 Md. 525, 530 , 135 A. 587 . John J. Chiappy, employed by the defendant as a traveling engineer, who was driving the automobile at the time and place of the accident, testified: “I was traveling east on the Frederick Road.

I was coming in the regular speed, and by the time 1 was passing Longwood Avenue, I presume half way between that street and the following ¹²⁰ street, I noticed a girl, say about ten years * * * come out between some parking automobiles on the south (his right) side of the street. Immediately at the time I saw the girl I applied my brake and tried tc turn my car toward right side as much as possible and I was lucky enough to miss the first girl. This girl had not quite run to the north side of the street; she run catacornered, when the second girl came out — from where I don’t know, but I presume she must have come out between some of the parked automobiles. * * * It was impossible for me to do anything as she come out so quickly. My car at that time was pretty near slowed down, because I already had applied my brake.

I missed the first girl. I cut my machine as much as I could toward the south side of the street. I couldn’t do any more because a parking automobile was there. When I struck this girl to my left fender side or my left bumper side the girl fell here and I hurt her, I presume with my fender.

I immediately stopped. I will say I stopped about five or six feet from her, got off on my left hand side at the door and by leaning down on the running board of the automobile I could pick up the girl and pass her to my companion. We immediately turned around and took her to the hospital. That is all what happened.” Asked where the child was lying with reference to the car tracks, he said: “There are two car tracks, one going east and one going west.

I picked the girl up between the track, between the two rail track on the south side.” “Q. In other words, she was lying in the eastbound track? A. That is the idea.” “The first girl that ran out from the south side of the street was going catacorner * * * traveling east * * * she was going across the street. She was running and never turned her face back, either.” When he first saw the first girl, Eleanor, she was about fifteen or twenty feet, “maybe a little bit more,” in front of his car. “When I discovered the little girl, she was right down in my left side of my car. If she run in front of the car or not I do not know”; and on cross-examination said when he first saw her she was “right down in front of my car.” ¹²¹ At that time his car had slowed down to three to five miles an hour on seeing the first girl to cross the street, and he had then, blown his horn.

The testimony of the driver, Chiappy, was substantially corroborated by David E. Schwartz, an erecting engineer of the defendant, who was seated with him in the defendant’s automobile. This is the evidence which the defendant argues is legally insufficient to sustain the charge of negligence preferred against it, and which should have resulted in the granting of its first prayer; or, assuming it to be legally sufficient, that it is uncontradicted evidence of the defendant’s contributory negligence. As usual in these cases, much depends on the respective rights of the parties under the rules of the road. Code (Supp. 1929), art. 56, sec. 209.

By the next to the last paragraph of this section it is provided that “all pedestrians shall have the right of way at street crossings in the towns and cities of this State, except where traffic is controlled at such crossings by traffic officers. Between street crossings in such towns and cities, vehicles shall have the right of way.” It having been decided by this court in Buckey v. White, 137 Md. 124 , 111 A. 777 , with respect to vehicles, that a road intersecting one side of another road but not crossing it, is an intersection within the méaning of section 209, it requires no discussion to decide that the same rule shall apply with respect to pedestrians at a street crossing such as we have here, where Longwood Street intersected the south side of Frederick Road, which was the side of the latter on which the defendant’s employee was driving eastward, and the intersection was to his right, which is the direction from which the plaintiff was crossing Frederick Road. The right of a pedestrian at a street crossing, on the assumption that this is a street crossing, which we so decide, would entitle the plaintiff to the right of way. The plaintiff and her older companion testified that they crossed Frederick Road at the “corner,” while the de ¹²² fendant’s driver and his companion testified that they crossed between intersections.

This difference in a disputed, vital, fact, of itself was a sufficient reason for the trial court to refuse the defendant’s first prayer for an instructed verdict. Merrifield v. Hoffberger Co., 147 Md. 134 , 137 A, 500; Harrison v. Smith, 167 Md. 1 , 172 A. 273 , the case of a child six years of age. There is another “rule of the road” as prescribed in section 209, which applies to the facts of this case, we think of equal importance with the “crossing” rule, and that is: “All vehicles, motor, horse-drawn or otherwise, when being driven upon the highways of this State shall at all times keep to the right of the center of the highway upon all highways of sufficient width, except upon streets or roads where traffic is permitted to move in one direction only, and except when overtaking and passing another vehicle, and unless it is impracticable to travel on such side of the highway.” The defendant’s employee and driver, Chiappy, said the plaintiff was in the eastbound railway track when his car struck her. This would be on his half of the street.

The plaintiff could not say how far she had progressed across the street, but the other girl testified that she had crossed the street and had one foot on the north curb when she heard the screeching of brakes, turned and saw the car hit the plaintiff, who was then between the east-bound and westbound tracks and that she was thrown between the rails of the west-bound track. This evidence placed the plaintiff almost exactly in the center of the street when she was struck. Chiappy is not at all clear as to where the two girls were at the time. He said he swerved his car to the right to avoid striking