Barker v. Whitter

• Decision Date: 16 January 1934
• Docket Number: 81.
• Parties: BARKER v. WHITTER. [a1]
• Court: Maryland Court of Appeals

170 A. 578

166 Md. 33

BARKER v. WHITTER. ^[a1]

No. 81.

Court of Appeals of Maryland

January 16, 1934

Appeal from Superior Court of Baltimore City; Albert S. J. Owens Judge.

Action by Crofton S. Whitter against William J. Barker. From a judgment for plaintiff, defendant appeals.

Judgment reversed without new trial.

Argued before BOND, C.J., and PATTISON, ADKINS, DIGGES, PARKE, and SLOAN, JJ.

Daniel S. Sullivan, of Baltimore (Edwin W. Wells, of Baltimore, on the brief), for appellant.

E. Paul Mason, of Baltimore (M. Harrison Chambers, of Baltimore, on the brief), for appellee.

DIGGES Judge.

This is the defendant's appeal from a verdict and judgment in favor of the plaintiff for injuries sustained by being struck by a taxicab owned and driven by the defendant. The important questions raised by the appeal are two: First, does the record disclose evidence of primary negligence on the part of the defendant; and, second, if so, does it present such a decisive negligent act on the part of the plaintiff contributing to the happening of the accident, as would bar recovery on the ground of contributory negligence?

The accident happened at noon, December 8, 1932. It was a clear day, and the streets were dry. The point of collision was east of the pedestrian crossing on Fayette street, east of Gay street, in Baltimore city. The plaintiff's evidence shows that the defendant's taxicab was proceeding east on Fayette street, and, after crossing Gay street and getting beyond the easternmost line of the lane of pedestrian traffic, that is, after the taxicab had gotten entirely across Gay street and had passed the way legally usable by pedestrians desiring to cross Fayette street east of Gay, his taxicab collided with the plaintiff, knocked him down, and seriously and permanently injured him; that Fayette street at the point of contact is 68 feet 8 inches wide; that there is a white line at this point marking approximately the center of Fayette street; that Gay street at the point of intersection is approximately 39 feet 6 inches wide; that traffic at the intersection of Fayette and Gay streets is controlled by traffic lights, so set as to Gay street as to show the green to traffic proceeding across the intersection on Gay street for 26 seconds, then showing amber 3 seconds then red 24 seconds, that is to say the revolution of light to one crossing the intersection on Gay street would be in this order, a green light for 26 seconds, amber 3 seconds red 24 seconds, amber 3 seconds, and then green again. For one crossing the intersection on Fayette street, the lights would show green 24 seconds, amber 3 seconds, red 26 seconds, amber 3 seconds, and then green again. Gay street runs north and south, and Fayette street east and west. There is a double car track on Fayette street west of Gay street, which turns north into Gay street at the intersection. There is also a double car track on Gay street, both north and south of Fayette. The northernmost rail of the car track on Fayette street west of Gay is 43 feet 6 inches from the north curb of Fayette street. The witness Moore, produced on behalf of the plaintiff, testified that at the time of the accident he had just left the northwest corner of Gay and Fayette streets and was proceeding across Fayette street on the west side of Gay; that when he left the curb he noticed the traffic lights and they were green, that is, giving the right of way to him; that, when he reached the northernmost rail of the car track, he saw the taxicab coming east on Fayette street up to the intersection, and "jumped back" to avoid being struck, and at that moment he noticed the traffic light, and it was amber; that the taxicab did not stop, but continued across Gay street, and immediately he heard the contact between the taxicab and the body of the plaintiff; that he does not know what the light showed at the moment of contact; that he turned to his left, upon hearing the contact, and saw the taxicab stopped and the plaintiff lying on the street 15 or 20 feet east of the pedestrian right of way; that the defendant got out of the taxicab and with the witness' assistance put the plaintiff in the taxicab, and the three of them proceeded to the Church Home and Infirmary, the hospital where the plaintiff requested to be taken; that, at the time the witness "jumped back" from the northernmost rail of the car track on Fayette street west of Gay, there were several cars stopped on the west side of Gay street awaiting change of the traffic light. The witness further said that, as the taxicab passed him, it was going "pretty fast"; that he does not know how much time elapsed between the time the car passed and the time of the accident, but that it was a very short time; that, at the time the taxicab passed him, none of those cars on the west side of Gay street, waiting for the change of the light, had started; they were standing abreast; that he does not say they were still standing there when the accident happened, but they were there when the taxicab passed him. The plaintiff's witness Ament testified that he did not see the impact, but when he looked he saw the plaintiff lying in the middle of the street; that, when he got there, two gentlemen were putting the plaintiff in the taxicab; that the taxicab was on the south side of the white line marking the center of Fayette street; that he does not know how far he was east of Gay street; "it might have been about 10 or 12 feet." The plaintiff's witness Evans, who had charge of the parking place on Fayette street between Gay and Frederick, and was working there on the day of the accident, testified that he heard the impact and went out of his office; that, as he did, he saw a man lying in the street; that he did not see the taxicab hit the man; that at that time a customer of his came in the parking place, and, after giving the customer a ticket, the witness stopped and turned around and looked, and the defendant had gotten out and picked the gentleman up, put him in the cab, and drove away with him. The witness said the rear wheels of the taxicab were sitting right on the pedestrian walk, that the left front wheel of the taxicab was across the center line; "Q. How far was Mr. Whitter from the front of the taxicab when you saw him lying there in the street? A. When I seen him I judge him to be about 10 feet, something like that; I did not measure it, of course;" that he was looking at the place of the accident when the witness Moore came there; that he saw Mr. Moore come over, but he did not know who he was at the time; that he could not say whether there was lots of traffic on Fayette street, he did not notice; that machines probably went east while he was looking; that "when you get used to seeing automobiles, you don't notice them"; that he did not notice any; that he did not see a street car stopped on any one of the corners; that he did not notice any pedestrians going up and down Gay street; that there was nothing to call his attention to any...