Brown v. Bendix Radio Div. of Bendix Aviation Corp.

• Decision Date: 07 February 1947
• Docket Number: 67.
• Citation: 51 A.2d 292,187 Md. 613
• Parties: BROWN v. BENDIX RADIO DIV. OF BENDIX AVIATION CORPORATION et al.
• Court: Maryland Court of Appeals

51 A.2d 292

187 Md. 613

BROWN v. BENDIX RADIO DIV. OF BENDIX AVIATION CORPORATION et al.

No. 67.

Court of Appeals of Maryland

February 7, 1947

Appeal from Baltimore City Court; J. Abner Sayler, Judge.

Action by Ella S. Brown against Bendix Radio Division of Bendix Aviation Corporation and others for personal injuries sustained when plaintiff was struck by a passing automobile after alighting from a bus. From a judgment for defendants on a directed verdict, the plaintiff appeals.

Judgment reversed as to two defendants with new trial awarded and judgment affirmed as to other defendant.

Samuel H. Feldstein, of Baltimore, for appellant.

Clater W. Smith and J. Gilbert Prendergast, both of Baltimore (Clark, Thomsen & Smith, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, HENDERSON, and MARKELL, JJ.

HENDERSON Judge.

Ella S Brown brought an action for personal injuries sustained on July 10th, 1945, when she was struck by a passing automobile after alighting from a bus on Loch Raven Boulevard near its intersection with Marble Hall Road in Baltimore City. The declaration alleged that the automobile was owned by James L Reid and operated by William D. Cowman in the course of his employment by Bendix Radio Division of Bendix Aviation Corporation. General issue pleas were filed by each of the defendants. The case came to trial in the Baltimore City Court, before the court and a jury, on June 7th, 1946.

After counsel for the plaintiff had produced testimony and closed his case, counsel for the defendants offered motions for directed verdicts, on the grounds that there was no evidence legally sufficient to show negligence, and that the uncontradicted evidence showed that the plaintiff was guilty of contributory negligence. The court excused the jury, and stated that he was prepared to take the case from the jury on the ground that there was no evidence to prove 'what car struck the plaintiff or who drove it.' Thereupon counsel for the plaintiff stated that the driver of the automobile causing the injury was still in court, and requested that he be allowed to reopen the case and recall him to the stand for the purpose of asking him only one question, i. e., whether the automobile he was driving at the time of the accident was the automobile that struck the plaintiff. The court declined the request, and silenced the protests of plaintiff's counsel by remarks which are characterized in the appellant's brief as 'brusque' and 'undignified'. The court then recalled the jury and directed a verdict for the defendants, 'because we don't know what car hit that woman'. The court denied a motion for a new trial a few days later.

The sole contention of the appellant is that the court's action was arbitrary and an abuse of discretion, and that the judgment should be reversed and a new trial granted to afford an opportunity to supply the alleged defect in the proof. The appellees, on the other hand, contend (1.) that the court's ruling was discretionary and not appealable, and (2.) that even if the ruling was erroneous, it was not prejudicial because the evidence required a directed verdict, even if the proposed question had been put and answered in the affirmative.

We need not dwell upon the charge of rudeness to the plaintiff's counsel. Regardless of provocation, heated altercations between the court and counsel are unfortunate and can hardly be condoned but in this appeal we are concerned only with the possible effect upon the rights of the litigants, not with matters of propriety. The alleged remarks were made out of the presence of the jury. Compare Western Maryland Dairy Corp. v. Brown, 169 Md. 257, 181 A. 468, and Weinstein v. Boyd, 136 Md. 227, 235, 110 A. 506. The only question before us is whether the court's refusal to reopen the case, or submit it to the jury, was reversible error. We shall first consider whether the case was one for the jury to pass upon, aside from the alleged defect in the proof.

In passing upon the granting of the motion for directed verdict, this Court is not restricted to a review of the reasons assigned for the ruling. Friend v. Hamill, 34 Md. 298; Laporte Corp. v. Pennsylvania-Dixie Cement Co., 164 Md. 642, 647, 652, 165 A. 195, 168 A. 844, 108 A.L.R. 1474; compare Alleghany Corp. v. Aldebaran Corp., 173 Md. 472, 196 A. 418.

Loch Raven Boulevard runs approximately north and south at the scene of the accident, and is a dual highway with a grass plot in the center. The traffic lanes are 24 feet wide. Marble Hall Road, a highway 50 feet wide, intersects the boulevard on the west side, but does not extend to the east. At about 10 A.M. on a clear day, July 10th, 1945, the plaintiff alighted from the front entrance of a bus of the Baltimore Transit Co., which had stopped at the east curb in the north bound traffic lane, at the regular bus stop, marked by a sign on the curb. About twelve other passengers alighted from the front and center doors. The plaintiff stepped on the sidewalk and went in front of the bus, intending to cross the boulevard to the southwest corner of the intersection, occupied by an apartment house where she was employed, 'directly opposite' from the place she got off. She was about two-thirds of the way across the north bound lane when she was struck by a north bound automobile proceeding past the bus, which remained standing at the east curb.

William D. Cowman, called by the plaintiff, testified that he was employed by Bendix Aviation Corporation on July 10, 1945. He reported for duty at the Towson plant around 8 A.M.; at 10 A.M. he was 'proceeding north on Loch Raven Boulevard, * * * to return an article which I had picked up at the stadium earlier that morning.'; he had been sent to the stadium by his 'supervisory officer', James L. Reid, earlier that morning; that it was 'company business', Mr. Reid 'asked him to do it on the company's business, not for him personally.'

The plaintiff testified that she 'stepped off the bus onto the pavement, and I looked to the left to see if anything was coming, and then as I started across, I got a little beyond the bus, and then is when I couldn't get out of the way of the car'; that she 'had taken three or four steps past the corner of the bus', whenn she was struck; that 'at the edge of the bus, that's the second time I looked', that she couldn't 'recall seeing the machine' as she got to 'the edge'. She sustained a fractured humerus, bruises and contusions.

William P. Pittinger, the bus driver, called by the plaintiff, testified that he stopped the bus at the curb by the bus stop sign. He heard a horn blow, looked in his rear-vision mirror, and saw a car coming at the left rear end of his bus. At that instant, he saw the plaintiff step off the curb and run in front of the bus. He put his hand out the window to try to warn the driver, and yelled to the plaintiff 'wait, wait', when he saw her 'dash down off the curb and start to run.' He tried to 'warn her' but she 'ran out in front of it', and 'it all happened at once'. He was the first one to get to the place where the plaintiff was lying, about the middle of Marble Hall Road, after the accident.

Jefferson McCullum, a passenger on the bus, got off at the center door. He heard the squeal of brakes and saw the plaintiff 'tossed'; she 'rolled * * * something like 10 or 12 feet.' The car stopped 'up against the curb, near the grass'. He took the license number of the car, but was not asked what the number was, or to identify the driver.

This is all the evidence bearing upon the issues of negligence or contributory negligence. Upon the first point, there is evidence that the automobile driver blew his horn, and no evidence that he was driving fast, or was inattentive. But on the other hand it is undisputed that he failed to stop or yield the right-of-way to the plaintiff. § 181 of Art. 66 1/2 of the Code, as codified by ch. 1007 of the Acts of 1943, provides:

'(Pedestrians' Right-of-Way at Crosswalks.) (a) 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, or traffic control devices. Between street crossings in such towns and cities, vehicles shall have the right-of-way. (b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at any intersection to permit a pedestrian to cross the roadway the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.' § 181(a) was contained in the preceding Motor Vehicle Law, Art. 56, § 235, 1939 Code. § 181(b) was a new provision in 1943. Compare § 38 of the Uniform Act Regulating Traffic on Highways.

The fact that Marble Hall Road does not cross Loch Raven Boulevard does not make it any the less a street crossing or intersection. Vizzini v. Dopkin, 176 Md. 639, 642, 6 A.2d 637; York Ice Machinery Co. v. Sachs, 167 Md. 113, 121, 173 A. 240; Buckey v. White, 137 Md. 124, 111 A. 777. Compare Shedlock v. Marshall Md., 46 A.2d 349. See also Code, Art. 66 1/2, sections 2(9) and 2(20). We think an inference may be properly drawn from the testimony that the plaintiff, proceeding from the front of the bus, standing at the 'bus stop' sign, to the Southwest corner of the intersection to the West, was on a crosswalk, although the latter was presumably unmarked. In this respect, the case of Thompson v. Sun Cab Co., 170 Md. 299, 184 A. 576, is distinguishable. It should have been obvious to the automobile driver that the bus was stopped to discharge passengers, and that some of them might attempt to cross. It was his statutory duty to stop and yield the right-of-way. Failure to do so is at least some evidence...