Buckey v. White

• Decision Date: 17 November 1920
• Docket Number: 15.
• Citation: 111 A. 777,137 Md. 124
• Parties: BUCKEY et al. v. WHITE.
• Court: Maryland Court of Appeals

111 A. 777

137 Md. 124

BUCKEY et al. v. WHITE.

No. 15.

Court of Appeals of Maryland

November 17, 1920

Appeal from Circuit Court, Frederick County; Glenn H. Worthington and Edward C. Peter, Judges.

"To be officially reported."

Action by David G. White against George P. Buckey and another. From judgment for plaintiff defendants appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

Frank L. Stoner and D. Princeton Buckey, both of Frederick, for appellants.

Leo Weinberg, of Frederick, for appellee.

OFFUTT J.

George P. Buckey, one of the appellants, at the time of the accident out of which this case grew conducted a hardware store at Union Bridge, in Frederick county, where he resided with his family. His son, Earl Buckey, the other appellant, who was then about 22 or 23 years of age, lived with him and assisted him in his hardware business. Some time before the father had bought an automobile runabout which was used in connection with his hardware business and appears to have been also used from time to time for the convenience of his family. He allowed his son, Earl Buckey, the privilege of using this car whenever he wished, and on the evening of July 14, 1916, the son started to drive it from his home to Braddock Heights where he expected to attend a dance. On the way he called for and was joined by three friends who were with him at the time of the accident. The sole purpose for which he was using the car on this trip was his own pleasure, and his business with it, to quote his testimony, was "just pleasure, going up to the mountain to dance or amuse ourselves in any other way," and was not in any way connected with the business at Union Bridge. In going to Braddock Heights he traveled along Maryland avenue. A short distance from Braddock Heights this avenue connects with a road leading from it to the southern entrance of the Hotel Braddock. The testimony regarding the character of this road is conflicting. It is a lateral road running at an angle to Maryland avenue, with which it connects, but which it does not cross, and there is testimony in the case tending to show that it had been laid out, graded, and used by the public as a thoroughfare for a number of years, and especially by persons having occasion to go to or from the Hotel Braddock. As Buckey approached the point at which this lateral road joins Maryland avenue the appellee's car containing eight persons and driven by his son, Bruce G. White, approached Maryland avenue along this lateral road. When the appellee's car was within a short distance of Maryland avenue, which he was approaching, his attention was called to the lights of Buckey's car, which was then approaching him from his left about 350 feet away. It was then between 8 and 9 o'clock in the evening, and, while it was not entirely dark, it was dark enough to require lights on the automobile. The testimony concerning the circumstances under which the accident occurred is conflicting, but that of the plaintiff tends to show that as the appellee's car approached Maryland avenue its headlights were turned on, and that as soon as he was aware of the approach of the appellants' car the driver of the appellee's car sounded his horn and slowly drove into Maryland avenue and started to turn in a northerly direction towards Frederick. When he reached Maryland avenue he saw that the appellants' car, which was approaching from his left, was on the wrong side of the road, and that if he, continuing on his course, drove on the right-hand side of the road, to which he was entitled, his car would collide head-on with the Buckey car, and he thereupon brought his car to a stop nearly across the road. The appellants' car, traveling at a speed variously estimated by the appellee's witnesses at from 25 to 35 miles an hour, continued to approach on the appellee's side of the road and struck the left side of his car. It was further testified that the appellee was prevented from completely crossing over to the right-hand side of Maryland avenue by the position of the appellants' car on that side of the road. As a result of the collision the appellee's car was damaged, and this suit was brought to recover for the loss thereby sustained.

The verdict of the jury was in favor of the plaintiff, and from the judgment thereon this appeal was taken.

The declaration filed in the case appears to be in the usual form, and, as no objection was urged to it in this court, it is sufficient to say that the demurrer to it was properly overruled.

The record contains but one exception, and that involves the correctness of the court's ruling on the prayers. The plaintiff offered two prayers, of which one was granted, and the defendants five, of which the first, second, and third were granted. The appellants' fourth prayer was but a paraphrase of their first prayer, and there was no error in its refusal. By their fifth prayer the court was asked to direct a verdict for the defendants on the theory that the undisputed evidence showed that the negligence of the driver of the plaintiff's car directly contributed to the happening of the accident. This prayer was properly refused. There was evidence tending to show that at the time of the accident the car driven by Earl Buckey was on the wrong side of the road and traveling over a thoroughfare upon which there were at the time many other automobiles and pedestrians, at what, under all the circumstances, might well have been considered an excessive rate of speed, and that the driver of the appellee's car was unable to avoid the collision because of the position of the appellants' car on the wrong side of the road. Under such circumstances the existence of...