Consolidated Gas, Elec. Light & Power Co. of Baltimore v. Rudiger

• Decision Date: 29 June 1926
• Docket Number: 32.
• Citation: 134 A. 326,151 Md. 226
• Parties: CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE v. RUDIGER.
• Court: Maryland Court of Appeals

134 A. 326

151 Md. 226

CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE v. RUDIGER.

No. 32.

Court of Appeals of Maryland

June 29, 1926

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

"To be officially reported."

Action by Julius Rudiger against the Consolidated Gas, Electric Light & Power Company of Baltimore. Judgment for plaintiff and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and WALSH, JJ.

Alfred P. Ramsey, of Baltimore, (E. M. Sturtevant, of Baltimore, on the brief), for appellant.

Edward H. Burke and Roszel C. Thomsen, both of Baltimore (Robinson & Fahey, of Bel Air, H. Courtenay Jenifer, of Towson, and Bowie & Clark, of Baltimore, on the brief), for appellee.

PATTISON J.

The appellee, Julius Rudiger, on September 1, 1923, was struck and injured by an automobile owned by the appellant, the Consolidated Gas, Electric Light & Power Company of Baltimore, and operated by one of its employees in the discharge of his duties, while he, the appellee, was crossing the York road in Towson, Baltimore county, Md Suit was brought by Mr. Rudiger against the appellant in the circuit court for Baltimore county to recover damages for the injuries sustained by him, caused, as alleged, by the negligence of the appellant.

The case was removed to the circuit court for Harford county where it was tried, and a judgment was recovered therein by the appellee against the appellant. It is from that judgment that this appeal is taken. There is but one exception found in the record, and that is to the rulings of the court upon the prayers.

There is a plat in the record which the reporter is asked to insert in his report of this case.

RPT.CC.1926115111.00010

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Mr Rudiger, a short while before the accident, was standing with a number of others on the sidewalk and in front of and on the south side of the engine house, which is shown on the plat. He started to cross the York road to Steiber's store almost opposite, and, when he had reached, or nearly reached, the curb on the south side of the road, he was struck from the rear by the automobile of the appellant, which, it seems, had suddenly turned to the right, and, after striking him, the front wheels of the automobile went upon the sidewalk nearly at right angles with the road. At the time of the accident there was in front of Steiber's store a pony and cart, in which there were one or two small children. The pony was near to, and facing, the curb, with the cart extending out into the street at right angles with the curb. Near to, and south of, the pony and cart was a truck parked against the curb, extending at right angles with the road, and projecting into it a distance of 8 or 9 feet. York road, at the point where the appellee attempted to cross, is about 40 feet in width.

Mr. Rudiger was, at the time of the accident, about 85 years old, and was then, and had been, for 36 years bailiff in the circuit court for Baltimore county.

He testified that the accident occurred between 5 and 6 o'clock in the daylight of a clear, nice day, and the road was dry. Just before the accident happened he was standing with others on the corner of the engine house. Before starting across the road, he said he looked up and down, but saw nothing coming in either direction, nor did he hear anything. He said he crossed the road where the pony cart was, and, when he was putting his foot on the curb, he rested his hand on the pony, and at such time something struck him--it was the automobile. In crossing the road he said he was walking pretty fast, but not running, "as there was nothing in the way of my walking--no car about." On cross-examination he said there was "no crossing anywhere there" near where he crossed; that is, "no place fixed there for people to walk on in going across." He was then asked if he saw a car coming in either direction when he was crossing, and he said, "No, sir," and, when asked if he looked, he replied, "You bet I looked." He further testified:

That from the middle of the road at that point you can see several hundred yards up York road towards his home, but you cannot see so far from the crossroads; that "from the middle of the pike you can see some distance towards Baltimore, but there is very seldom any danger coming up the pike from that direction as the automobiles do not come so fast"; it being up grade. He said: "I did not go fast or slow. I didn't run, but I went as fast as I could walk."

"When you got in the middle of the road did you stand still? A. No, sir, I wouldn't do that anyhow.

Q. You would not do that? A. No, sir; I had no cause to stop; I wanted to get across.

Q. You don't know where the car struck you, whether it was a car or really what did strike you? A. I do not know what struck me because I was looking the way I was going. I had put one foot on the curbstone; but, before I got the other up there, I was struck."

Joseph S. Parker, manager of Steiber's grocery and provision store, testified that he did not see the car strike Mr. Rudiger, but saw him falling to the ground a few feet from the curb. His head was in three feet of the curb, and his feet were out towards the middle of the road. A truck was backed in there, and a pony cart was between Mr. Rudiger and the truck. The noise on the street first attracted his attention to the accident, and he ran to the door, and saw the automobile coming towards the store, but he did not see it before it struck Mr. Rudiger. The curb is about 6 inches high in front of the store. He further testified that Mr. Rudiger was coming towards the curb and fell toward it; that, after he was hit, and after he fell to the ground, the car moved on, and the two front wheels at least went up over the curb. The car was north of where Mr. Rudiger lay upon the road.

The evidence of Walter Hutchins, who was standing in front of the engine house about the time of the accident, was about the same as Joseph Parker.

George Gearhardt, a member of the state police, testified that he heard screeching of brakes, and, when he went around the engine house he saw a car on the pavement. The front wheels of the car were on the pavement, and Mr. Rudiger lying on the road just outside of the curb line. He saw upon the street marks from tires "drawing on the road" from the back of the car out. They were approximately a length and a half to two lengths of a car or a little farther. The marks were in a half circle. Mr. Rudiger was lying below the car on the roadway. North of the engine house there is a street that goes through. He did not recall hearing any horn, but was attracted by the brakes dragging on the road.

Carvel Cox testified that he saw the accident as he was coming out of Held's bakery store, which is on the corner above, and next to, Steiber's store. When he ran out of the door, he saw the car coming at a speed of between 20 or 25 miles an hour, possibly a little faster. "Just as he walked out he got about two or two and one-half feet from Mr. Rudiger, the machine came into the curb. The reason for that was that a lady with two children in a pony cart was backing out, and the truck just below them cut him off, and he threw the machine right into the curb. The whole thing went up on the pavement, and just as it struck the curb the right front fender struck Mr. Rudiger and swung him around." He, too, did not hear any horn blow. That, when Mr. Rudiger was struck, he was standing at the pavement with one foot on the curb and one on the road, like he was just going to cross, or had just crossed, the street. The impact threw Mr. Rudiger out into the road about one foot from the curb. He did not notice any marks on the road. "The car was coming straight down the York road." When he first saw it, it was just before it came to the crossroads at Shoemaker's store, and was to the right of the east of the York road, and between 3 and 4 feet from the curb, on the east side of the road. The road is very wide right in there. After the driver crossed Allegheny avenue, he must have been out 6 feet from the curb, and as he came to pass Steiber's store he might have been more, but he was not any less. Between the pony cart and the corner there was only one truck, and that was on the lower side of the pony cart. The lady in the cart was backing out. The driver saw that; started to throw his brakes on as soon as he saw the pony was backing out. The driver either had to turn to the right and go on the pavement or hit the pony cart, because he could not stop, and the pony cart was about 2 feet past the truck, and was backing out.

Linwood Brookhart, a lieutenant and driver of the Towson fire department, testified that he was sitting in the front door of the engine house when Mr. Rudiger started across the street. He did not notice him any more until he heard the noise of the brakes, when he looked up and saw the automobile strike him. He was then, he thought, about 6 feet from the west curb. The noise of the brakes first attracted his attention. He did not hear any horn blow. Mr. Rudiger, when he went to the curb next to the engine house, before crossing the street, stopped and looked, and then started across the street. The left front fender of the car struck him. The automobile turned in to the right toward the curb when the fender sideswiped him. "You know how the fenders turn down in front--that is what struck him." The front part of it struck him. Other witnesses for the plaintiff testified largely in corroboration of the evidence we have stated.

Edmond J. Mullaney, the driver of the automobile, when produced as a witness for the defendant, testified:

That he was going south on the York road, and stopped on the northwest corner of

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