Chiswell v. Nichols

• Decision Date: 03 December 1920
• Docket Number: 18.
• Citation: 112 A. 363,137 Md. 291
• Parties: CHISWELL v. NICHOLS.
• Court: Maryland Court of Appeals

112 A. 363

137 Md. 291

CHISWELL v. NICHOLS.

No. 18.

Court of Appeals of Maryland

December 3, 1920

Appeal from Circuit Court, Frederick County; Glenn H. Worthington Judge.

"To be officially reported."

Suit by Eugenia Chiswell against Charles E. Nichols. From judgment for defendant, plaintiff appeals. Reversed, and new trial awarded.

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

Leo Weinberg and John S. Newman, both of Frederick, for appellant.

Milton G. Urner, Jr., and Reno S. Harp, both of Frederick, for appellee.

PATTISON J.

Eugenia Chiswell, the appellant, sued Charles E. Nichols, the appellee, to recover damages for personal injury sustained by her in an automobile collision caused by the alleged negligence of the appellee. The judgment being for the appellee, she has appealed to this court.

At the conclusion of the evidence, taken in the trial of the case below, a number of prayers were offered by the plaintiff, as well as by the defendant, but only the defendant's second and third prayers, directing a verdict for him, were granted; one because of the contributory negligence of the plaintiff, and the other for a want of legally sufficient evidence entitling the plaintiff to recover. The ruling of the court upon the prayers is the only exception in the record.

The record discloses that the plaintiff, a resident of Licksville, Frederick county, Md., upon the invitation of Stanley J. Wood, a merchant of Licksville, on the 4th day of December, 1919, rode with him in an automobile, owned and driven by him, to the town of Frederick. On their return home, in the afternoon of that day, after passing through Buckeystown, and while proceeding southward on the concrete road to Licksville, they collided with the defendant's car at or near the intersection of that road by the Adamstown road.

The plaintiff at the time of the accident was seated on the front seat of the automobile, a Ford touring car, to the right of the driver, Mr. Wood. There was in the car a quantity of oysters and merchandise, weighing 400 or 500 pounds.

The defendant, with Mrs. Eugene Wachter, had on the day of the accident ridden in a Paige automobile, owned and driven by the defendant, from their homes in Buckeystown to Adamstown and at the time of the accident were returning from Adamstown to Buckeystown. The Adamstown road, over which they traveled in returning to Buckeystown, approached the Buckeystown road from the west, and was from 1 1/2 feet to 3 feet lower than the Buckeystown road. The ascent from the former to the latter started a short distance west of the Buckeystown road. Immediately before the accident the plaintiff was upon the Buckeystown road, moving south thereon towards its intersection with the Adamstown road, while the defendant was on the Adamstown road, going east to said point of intersection, and the collision occurred at or near said intersection.

The evidence discloses that there was nothing to obstruct the view of either at any point within a quarter to a half mile of the intersection from seeing the other as he or she approached that point, more than a post or rail fence upon the side of the road. It is further shown from the evidence that upon the east side of the Buckeystown road, opposite the center of the Adamstown road, was a milk station or stand.

Stanley J. Wood, the owner and driver of the automobile in which the plaintiff was riding, in giving an account of the accident, said:

It was "about half past 3 in the afternoon," the sun was shining "in my eyes, shone on the windshield, and I could not see anything on the side to amount to anything. I was looking straight ahead; on the side the glare of the wind shield kept me from seeing anything coming from that side. I was just going along; did not know I had come to that road [Adamstown road]. When I came to my senses, I was standing up on the pike. Q. When did you see the Nichols car with reference to the accident? A. I never seen it until the very minute it struck me. When the collision came, I just seen something black come before me, and everything was dull. I didn't know nothing."

The witness testified that he frequently traveled the road from Licksville to Buckeystown road, and knew about where it came into the Buckeystown road. He further testified that at the time of the accident he was going between 20 and 25 miles an hour. He had no speedometer, but was not going over 25 miles an hour. The Nichols car, he said, struck his car between the front and rear doors, and "drove it across the pike over against the milk stand and smashed it down." Upon cross-examination he testified there was nothing between the Buckeystown road and the Adamstown road to prevent him from seeing any one traveling on the lastnamed road, but on the day of the accident he could not see because the sun was shining in his eyes. He said "it was difficult driving; it did not occur to me I was there at that road."

The plaintiff testified that at the time of the accident the car in which she was driving was going between 20 and 25 miles an hour. When asked to tell the jury what, if anything, she knew about the accident, she said:

"We passed Mr. De Garmendia's car directly outside of Buckeystown, and we seemed to be riding about four or five minutes, when all at once I came to on the pike there, and I couldn't imagine what had happened; we were going at a good steady rate. Q. Did you see the Nichols car collide with the Wood's car? A. No. Q. Tell the jury what you were doing as you were going along the road. A. As we passed Mr. De Garmendia's car, Mr. Wood said, 'That is Mr. De Garmendia; I know him by his hat.' I said, 'Yes; I know him by his number;' and we drove along then quietly; nothing more was said. Q. Could you see the Adamstown road? A. Yes, sir; I could see it fairly well, but not very well because of the sunlight. Q. Was the sun shining on the shield? A. Yes, sir; seemed to be shining in front of the car there." She did not see the Nichols' car, though there was no obstruction "along there at the intersection of the road," more than the post and rail fence. She was seated on the right side of the car, the side from which the Nichols car approached. There were no curtains upon that side of the car. She knew where the Adamstown road came into the Buckeystown road. She had often passed up and down that road. She was then asked, "Did you look in the direction of the Adamstown road going down?" and she answered, "I had been glancing to the right some." "You didn't look particularly at the Adamstown road?" "No; I saw where the road came out by the fence just before we got to the Adamstown road." She did not see Mr. Nichols' car at any time before the accident. Mr. Wood's car, at the time of the accident, was in the middle of the road. She was asked: "Were you giving especial attention to the Adamstown road to see if anything was coming down there. A. No; I was looking casually about now and then as best I could. Q. The sun was in your eyes? A. Yes, sir."

Carlos De Garmendia, a farmer near Tuscarora, Md., testified:

That he was returning home from Frederick, on December 4, 1919, and when he had reached a point just beyond Buckeystown, about 3 o'clock in the afternoon, Mr. Wood passed him. The witness's wife was with him in the car, sitting to his right on the front seat, and Glenn Washington, a colored man, an employee of witness, was sitting on the rear seat. In speaking of Adamstown road, he said, "It came into Buckeystown road almost at right angles." The acute angle, however, is on the south side of the Adamstown road. In answer to a question asked by the court, the witness said, "There is a telephone line and an electric line on both of those roads." He further stated that after Wood passed him down the pike, he was behind him all the way to the scene of the accident, and at the time of the collision was about 100 yards from him. He was then asked to tell what he saw of the collision. His answer was: "As Wood approached the Adamstown road, and when almost there, a car came out and had taken this direction coming onto the pike, cut the corner, and almost instantly after its appearance on the pike crashed into the Wood car, lifted it, carried the car forward diagonally two or three car lengths, and the Wood car came to rest right against the milk stand, right against the fence; the milk stand being almost directly opposite the end of the Adamstown road. They struck, and while in contact went forward diagonally and stopped at the milk stand." Wood at the time of the accident was in the middle of the road, and his car (Wood's) was struck "from the middle of the car forward." When the collision occurred, the witness got out of his car and went over to the plaintiff, who was lying on the ground unconscious, and Wood at the time was crying, "Oh! it was not my fault." He then saw Nichols, and said to him, "It is you; isn't it awful?" and he (Nichols) said, "My God! I never saw him until I struck him; I jammed my brakes, but it was too late." The witness did not hear any horn blown by Nichols, but stated that, because of the distance he was away from him, he probably could not have heard him. Nor could he say how fast Nichols was going at the time of the collision. "It was simply an appearance and a crash."

Upon cross-examination, he testified that had he looked he could have seen across the Adamstown road. The Wood car, he thought, was not exceeding 25 miles an hour at the time of the accident.

Mrs. De Garmendia, who, as we have said, was with her husband testified that Mr. Wood was going at the time of the accident from 20 to 25 miles an hour, and this was his speed from the time he passed them until the time of the...