Campbell v. Jenifer

• Decision Date: 17 March 1960
• Docket Number: No. 165,165
• Citation: 222 Md. 106,159 A.2d 353
• Parties: Joseph F. CAMPBELL et al. v. James A. JENIFER et al. JENIFER v. CAMPBELL.
• Court: Maryland Court of Appeals

Page 106

222 Md. 106

159 A.2d 353

Joseph F. CAMPBELL et al. v. James A. JENIFER et al.

JENIFER v. CAMPBELL.

No. 165.

Court of Appeals of Maryland.

March 17, 1960.

Robert S. Rody, Baltimore (Richard D. Payne and MacDaniel & Payne, Baltimore, on the brief), for Joseph F. Campbell, appellant.

Max Sokol, Baltimore (Dickerson, Nice & Sokol and Melvin J. Sykes, Baltimore, on the brief), for James Martin Shaunessy, by Foster H. Fanseen, Baltimore (Ginsberg & Ginsberg and Hyman Ginsberg, Baltimore, on the brief), for Bond Lumber Co. and James Jenifer, appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

Joseph F. Campbell (plaintiff)--claiming that he had been struck and injured by one or both of two motor vehicles while he was walking across North Avenue in Baltimore in broad daylight--sued James M. Shaunessy (Shaunessy), the operator of the automobile involved in the accident, and James A. Jenifer (Jenifer) and the Bond Lumber Company (Bond), the operator and owner, respectively, of the truck also involved in the accident. When the Superior Court of Baltimore City granted a motion for a directed verdict and entered a judgment for costs in favor of Shaunessy and later granted a motion for and entered a judgment n. o. v. in favor of Jenifer and Bond, the plaintiff appealed from the entry of the judgment n. o. v., though not the judgment for costs entered on the directed verdict, and Jenifer and Bond cross-appealed from the judgment for costs.

In the late afternoon of October 5, 1957, the plaintiff was crossing North Avenue about half way between Bolton Street and Linden Avenue when the accident occurred. In the center of the avenue there was a raised narrow concrete median strip or island dividing east bound and west bound traffic. The avenue was wide enough on each side to accommodate two lanes of moving traffic and a lane of parked vehicles. Prior to the accident the plaintiff had been in a bar on the south side of the avenue where, according to his testimony, he had three shots of shiskey and a large bottle of beer. He admitted feeling the drinks, but thought he knew what was going on when he undertook to cross the avenue from south to north. There was other evidence both that he appeared to be sober and that he was highly intoxicated.

Shaunessy, operating the automobile in a westerly direction in the lane nearest the north side of the median strip, noticed the plaintiff as he came through the intersection at Bolton Street and saw him again when he was from six to ten feet away, staggering or walking somewhat irregularly across the east bound traffic lanes with his hands to his head. In an attempt to avoid striking the plaintiff, Shaunessy applied his brakes, slowed down and gradually came to a complete stop. The plaintiff, continuing on his course, stepped or staggered up on the median strip with one hand in front of his face. As the truck collided with the automobile, he (the plaintiff) appeared to wake up, threw up his hands, and as the automobile, which was propelled forward by the impact of the truck, came opposite the plaintiff, he fell on the left front fender. Jenifer, who was following in the truck in the same lane close behind the automobile, did not see the plaintiff, but frankly acknowledged seeing Shaunessy slow down and stop. He also admitted that as the automobile was slowing the truck collided with the rear end of the automobile. Besides the automobile and truck involved in the accident, there was both traffic ahead of them in the same lane and still other traffic traveling both east and west.

The evidence as to how the accident actually happened was conflicting. In addition to the testimony that the plaintiff walked or fell into the left side of the automobile, there was testimony to the effect that the plaintiff was struck by the front of the automobile. Other testimony indicates that the striking occurred before the truck ran into the automobile. According to the testimony of the plaintiff, he did not step from the median strip until the automobile had come to a stop and, as he put it, until Shaunessy had ceded him the right of way. He further testified that it was the collision of the truck with the automobile which caused the automobile to move forward and strike him. But on cross-examination, although he remembered falling down and sliding in front of the automobile, the plaintiff admitted he did not know how the accident happened. In any event, he was thrown back across the median strip into the nearest east bound traffic lane.

The principal question on these appeals is whether the trial court erred when it ruled (i) that there was no evidence of negligence on the part of Jenifer and Bond and (ii) that the plaintiff was guilty of contributory negligence. If we should rule that the court erred in granting the motion for a judgment n. o. v., there is the further question of whether the trial court should have also permitted the case to go to the jury with respect to Shaunessy.

In a case such as this, where the trial court has granted either a motion for a directed verdict or a motion for a judgment n. o. v., this Court must, in determining whether the ruling was proper, resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff. Baer...