Cocco v. Lissau

• Decision Date: 17 April 1953
• Docket Number: No. 116,116
• Citation: 202 Md. 196,95 A.2d 857
• Parties: COCCO v. LISSAU et al.
• Court: Maryland Court of Appeals

Page 196

202 Md. 196

95 A.2d 857

COCCO v. LISSAU et al.

No. 116.

Court of Appeals of Maryland.

April 17, 1953.

Rehearing Denied May 20, 1953.

Grafton D. Rogers, Baltimore (William C. Holland, Baltimore, on the brief), for appellant.

Sigmund Levin, Baltimore (Paul Berman, Theodore B. Berman and Jacob Matz, Baltimore, on the brief), for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Frederick G. Lissau, an infant, by Richard G. Lissau, his father and next friend, and Richard G. Lissau, in his own right, brought this action for damages sustained when the infant was struck by an automobile driven by Louis Cocco on Patapsco Avenue in Anne Arundel County.

The accident occurred on July 30, 1950, shortly before 8 p. m., when it was still daylight. Patapsco Avenue is a country road leading to Kurtz's Beach and Maryland Beach 144 feet to the south. The 8-year-old plaintiff, who had been at Kurtz's Beach with a 9-year-old cousin, ran through Kurtz's entrance gate on his way to the lot on the other side of the road, where he had parked his bicycle. About the same time defendant, accompanied by his girl friend, whom he afterwards married, started north from the entrance to Maryland Beach. Just as he passed the entrance to Kurtz's Beach, he heard a 'thud and everybody screaming.' His car, which he was driving in the center of the road, struck the infant plaintiff and the right front wheel ran over his left leg. Defendant testified that he was driving at the rate of about 10 or 15 miles an hour, and when he applied the brakes the car stopped almost immediately. He stated that he got out of the car and in spite of the excitement reached the right side of the car, where the injured boy was lying, within thirty seconds.

The trial judge overruled defendant's motion for a directed verdict, and submitted the case to the jury. The jury brought in a verdict in favor of the infant plaintiff for $3,100 for his injuries, and in favor of his father for $650 for hospital and medical expenses. The judge then overruled defendant's motion for judgment n. o. v., and entered judgment on the verdict. From that judgment defendant appealed here.

The decisive question is whether there was any evidence of negligence legally sufficient for submission to the jury. In order to decide that question we inquire (1) whether defendant was negligent in driving in the center of the road; (2) whether there was any evidence that he was driving at an excessive speed; and (3) whether there was any evidence that he was driving recklessly.

First. The Maryland Motor Vehicle Law provides that upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except when overtaking and passing another vehicle proceeding in the same direction, or when the right half of a roadway is closed to traffic while under construction or repair, or upon a roadway divided into three marked lanes for traffic, or upon a roadway designated and sign posted for one-way traffic. Code 1951, art. 66 1/2, § 182.

A driver who violates this 'rule of the road' is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances, such as the condition of the road or an emergency in the traffic, he was justified in driving in the center or upon the left half of the road. We emphasize, however, that a violation of this rule does not constitute negligence except when it is the direct and proximate cause of the injury. Kelly v. Huber Baking Co., 145 Md. 321, 125 A. 782; Lusk v. Lambert, 163 Md. 335, 163 A. 188; Consolidated Gas, Electric Light & Power Co. v. O'Neill, 175 Md. 47, 200 A. 359; Crunkilton v. Hook, 185 Md. 1, 42 A.2d 517.

In this particular case defendant cannot be charged with negligence for driving in the center of the road, because the fact that he was driving in the center was not the direct and proximate cause of the accident. As a matter of fact, a person darting into the road from Kurtz's Beach, which is on the east side of the road, would be more likely to be struck by a car traveling on the east side of the road than by a car traveling in the center, because the driver would have more chance to see him and to slow down or turn aside to avoid hitting him. At the place where this accident happened, the road is only about 18 feet wide. At 8 o'clock in the evening this narrow road was crowded with people walking on the east side of the road and on the grass along the side of the road. The traffic was northbound as the people were leaving the beaches. For these reasons the Court accepts defendant's view that the boy had a better chance to avoid being hit by a car in the center of the road than by a car on the east half of the road.

Second. The Motor Vehicle Law provides that no person shall operate a motor vehicle over any public highway of the State recklessly or at a rate speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger the property and life or limb of any person. Code 1951, art. 66 1/2, § 174.

We find no legally sufficient evidence that defendant was driving at a speed greater than was reasonable and proper. His testimony that he was driving at the rate of about 10 or 15 miles an hour was corroborated by...