Chasanow v. Smouse

• Decision Date: 21 May 1935
• Docket Number: 6.
• Parties: CHASANOW v. SMOUSE.
• Court: Maryland Court of Appeals

178 A. 846

168 Md. 629

CHASANOW v. SMOUSE.

No. 6.

Court of Appeals of Maryland

May 21, 1935

Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.

Action by Lena Chasanow against Charles A. Smouse. From a judgment for defendant, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

F Brooke Whiting, of Cumberland, for appellant.

Walter C. Capper, of Cumberland (William S. Jenkins, of Cumberland on the brief), for appellee.

SLOAN Judge.

The only question submitted on this appeal is the ruling of the trial court, adverse to the plaintiff, on her first prayer which was:

"The Court instructs the jury that the plaintiff, being a pedestrian, had the right of way at the street crossing over which she was walking at the time she was struck by the automobile of the defendant, if the jury shall find that she was struck by the automobile of the defendant while she was walking over the intersection of the street, and the jury is further instructed that if they find she was struck by the automobile of the defendant while walking across Frederick Street at its intersection with Decatur Street then their verdict shall be for the plaintiff, unless the jury shall further find that her negligence directly contributed to her injuries."

On June 8, 1933, the plaintiff, Mrs. Lena Chasanow, with her five year old daughter, was going from her residence, on the east side of Decatur street in Cumberland, to a store, on the same side of the street, at the southeast corner of Decatur and Bedford streets. To reach her destination it was necessary to cross Frederick street, which intersects Decatur street at a right angle. As she was crossing Frederick street she was struck by an automobile, owned and driven by the defendant, Charles A. Smouse, coming down Frederick street on her right. From a judgment for the defendant, the plaintiff appeals.

The testimony of the parties, the only eyewitnesses testifying, was that neither was aware of the presence of the other until the instant the accident happened. Both streets at the intersection are so nearly level and straight that there was nothing to obstruct the view of either for a considerable distance. The plaintiff testified: "I stopped and looked both ways to see if it was safe for me to cross * * * there was no car in sight." On cross-examination she qualified this by saying: "If I saw the car it was some distance away." "I walked straight across the street to the other side; I had no reason to go off the main traveled way because I was going straight up the street to Bedford Street." When struck she said she had almost reached her "destination, that is the west (meant north) side or pavement of Frederick Street in going across."

The defendant, a man seventy-eight years old, testified that he was driving slowly down Frederick street, not over six or eight miles an hour, intending to turn right at the corner. "I was watching to see that the road was clear. So all at once a woman appeared right in front of the car." He testified that there was a car passing from the opposite direction, and that, "She didn't come in front of it; she must have come behind it. If she had been in front I would have seen her; and the car was going slow and the woman she just kinda reared up in front of the car and it just bumped her * * * she was off the line of the two streets. She was down in--more in the traffic section. * * * More on the roadway. * * * She was off that line at least four or five feet." The defendant denied that there was any other car in sight.

There was no boulevard or "stop" sign on either street at the time of the accident. One was placed on Frederick street six months later.

This is the evidence to which the trial court was requested to apply the plaintiff's first (rejected) prayer.

The rule of the road with respect to the rights and duties of pedestrians and vehicles at street crossings is contained in the last paragraph, but one, of section 209 of article 56 of the Code Supp. 1929, Act 1929, c. 224, and that is: "All pedestrians shall have the right of way at street crossings...