Brown v. Patterson

• Decision Date: 22 June 1922
• Docket Number: 35.
• Parties: BROWN v. PATTERSON.
• Court: Maryland Court of Appeals

118 A. 653

141 Md. 293

BROWN v. PATTERSON.

No. 35.

Court of Appeals of Maryland

June 22, 1922

Appeal from Court of Common Pleas of Baltimore City; Carroll T Bond, Judge.

Action by George W. Patterson against George W. Brown. Judgment for plaintiff, and upon defendant's appeal, and death of plaintiff, Elizabeth R. Patterson, plaintiff's administratrix, suggested his death, and appeared as appellee. Judgment affirmed.

Charles Jackson, of Baltimore (Harry B. Wolf and Derlin McKindless both of Baltimore, on the brief), for appellant.

J. Kemp Bartlett, Jr., and Edgar Allan Poe, both of Baltimore (Thos A. Hays, Jr., and Bartlett, Poe & Claggett, all of Baltimore on the brief), for appellee.

BOYD C.J.

This is an appeal from a judgment obtained by George W. Patterson against George W. Brown, appellant, for injuries alleged to have been sustained by Patterson by being struck by the automobile of Brown at or near the corner of Myrtle avenue and Harlem avenue, in the city of Baltimore. After the judgment was obtained, Mr. Patterson died, and his widow, Elizabeth R. Patterson, who has been appointed administratrix, suggested his death, and appeared in this court as party plaintiff, appellee.

The only bill of exceptions in the record which clearly presents the rulings of the court is that in reference to the two prayers offered by the defendant-the first that, under the pleadings, there was no evidence legally sufficient to entitle the plaintiff to recover, and the second that there was no evidence of any negligence on the part of the defendant directly contributing to the accident, each of them concluding with a direction for a verdict in favor of the defendant. Whether or not the defendant intended to press the exception to the granting of the plaintiff's prayers, and the trial judge intended to certify to his rulings on them by that bill of exceptions, is not clear to us, and did not seem to be to the appellee. While we have in many cases pointed out that there cannot be embraced in one bill of exceptions rulings on various questions, we have said that rulings on the prayers may be regarded as a single act, and may be embraced in one exception. So we have no difficulty about including the rulings on the prayers in one bill of exceptions, but, as to whether it was intended to have us review the action of the court in granting the plaintiff's prayers, we are in some doubt, owing to the way the bill of exceptions was prepared, but we will, as briefly as we can, refer to them.

Passing for the moment the prayers of the defendant as to the legal sufficiency of the evidence, there can be no question about the plaintiff's first prayer. It is very similar to the plaintiff's first prayer in P. W. & B. R. R. Co. v. Hogeland, 66 Md. 149, 7 A. 105, 59 Am. Rep. 159, where Chief Judge Alvey said in reference to those granted, which included the first:

"Indeed, all the instructions given on the prayers of the plaintiff are but plain legal propositions that admit of no controversy in this court, where they have been repeatedly sanctioned."

That was over 35 years ago, and a similar prayer has been granted and approved over and over again in negligence cases, although, of course, there may be circumstances in a case making such a prayer too general, or for other reasons objectionable. See, for illustration, Chiswell v. Nichols, 137 Md. 291-307, 112 A. 363; United R. & El. Co. v. Crain, 123 Md. 332, 349, 91 A. 405.

Plaintiff's second prayer is the usual damage prayer in such cases, and is similar to the sixth in Hogeland's Case. His fifth is the familiar prayer in use in reference to the burden of proof as to contributory negligence, and is substantially the same as the fifth prayer in Hogeland's Case. See, also, B. & O. R. R. Co. v. Stumpf, 97 Md. 78, 90, 54 A. 978. The plaintiff's sixth prayer instructed the jury as to the duty of drivers of vehicles to keep to the right of the center of the highway at the intersection of public highways. If any criticism of that prayer could be made, it might be said that it was not as full as it might have been, but it was to the point, and a very important point in this case, and the defendant's sixth prayer, which is in the record, apparently put there by the appellant, who had control of the record, although not printed in the bill of exceptions, instructed the jury that the regulations in section 163 of chapter 85 of the Acts of 1918 (our law on the subject) "do not absolve persons or pedestrians from the duty of using reasonable care for their own safety and protection." Although Harlem avenue does not cross Myrtle avenue, it is an intersecting highway within the meaning of this statute. Buckey v. White, 137 Md. 124-129, 111 A. 777.

In passing on the question of the legal sufficiency of evidence to take a case to the jury, in Chiswell v. Nichols, on page 305 of 137 Md. (112 A. 363), that section of article 56 of the Code is specially referred to, and in Buckey v. White, 137 Md. 124, 111 A. 777, it was regarded as evidence of negligence to violate the regulations in that section. The plaintiff's seventh prayer instructed the jury that, under the laws of this state, pedestrians have the right of way over motor vehicles at street crossings at the intersection of streets in the towns and cities of the state. As shown above, the defendant's sixth prayer, which was granted, properly guarded that prayer, if there was any danger of its being misleading. It will thus be seen that we do not find any error in the plaintiff's prayers which were granted, if the defendant's first and second were properly rejected, which we will now consider.

This case is an unusual one, as the appellant denies that his automobile struck Mr. Patterson, and claims that the latter fell without being struck, while there is considerable evidence as to his injuries, which, as alleged, were the result of the automobile striking him and knocking him down. We are not called upon to determine which of the contentions is right, but only as to the legal sufficiency of the evidence to take the case to the jury. Although conflicting there is, in our opinion, ample evidence tending to sustain plaintiff's side of the controversy, both as to negligence of the defendant and the alleged contributory negligence of the plaintiff. Mr. Patterson testified that he came out of the store or office of his employer, William H. Wilhelm, which was on Myrtle avenue, a few doors from Harlem, walked towards the southwest corner of Myrtle and Harlem avenues, and started to go across Harlem avenue, intending to go to the shop of his employer, on Shields alley, which connects with Hoffman street. That required him to cross Myrtle avenue at some point, and, although, when he was called to the blackboard to point out the place where he was struck, he designated a point on Myrtle avenue not far from Wilhelm's office, he stated several times that he was struck at...