Critzer v. Shegogue

• Decision Date: 26 October 1964
• Docket Number: No. 12,12
• Parties: Wister Richard CRITZER et al. v. George S. SHEGOGUE.
• Court: Maryland Court of Appeals

Page 411

236 Md. 411

204 A.2d 180

Wister Richard CRITZER et al. v. George S. SHEGOGUE.

No. 12.

Court of Appeals of Maryland.

Oct. 26, 1964.

Wilbert McInerney, Rockville, for appellants.

Carlyle J. Lancaster, Hyattsville, Jerrold V. Powers, Upper Marlboro (Welsh & Lancaster, Hyattsville, Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellee.

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

PRESCOTT, Judge.

Appellee, plaintiff below, brought suit against appellants to recover damages for personal injuries sustained by him on January 24, 1962, when, as a pedestrian, he came into contact with a bus owned by the corporate defendant and operated by its agent, the other defendant. Plaintiff contended that he had been struck by the bus; the defendants claimed that he had walked into its side. The case was tried before a jury, which rendered a verdict in favor of the plaintiff. After motions for a judgment n. o. v. and a new trial were denied, judgment was entered upon the verdict, and defendants appealed.

The questions raised by appellants are as follows:

Did the trial court err: (1) in refusing to grant defendants' motion for a directed verdict; (2) in its instruction to the jury regarding the duty imposed upon a motorist to a pedestrian; (3) in instructing the jury 'concerning the duty imposed upon each party by the doctrine of 'last clear chance' to avoid the accident.'; (4) in instructing the jury 'regarding the failure of the defendant to call a witness.'

On the day of the accident, plaintiff and his two brothers had spent several hours at a Hyattsville bowling alley, where they bowled and consumed some beer. After leaving the bowling alley and making one stop at a restaurant, they proceeded in an easterly direction along the Lanham-Severn Road, a highway accommodating two lanes of traffic. The motor in the car in which they were traveling stalled, and the plaintiff, who was due to be at work in Washington at 9:00 p. m., began walking easterly along the right side of the highway in hope of obtaining a ride to his home at Bowie. Because the shoulder of the roadway was in poor condition, plaintiff stated that he walked alternately on the paved surface and on the shoulder, depending upon the amount of traffic using the road. The testimony is conflicting concerning whether he was walking on the surface or on the shoulder of the road at the time when contact with the bus occurred. The testimony is also conflicting as to whether plaintiff walked into the side of the bus, as to its speed, and whether there was an odor of alcohol on plaintiff's breath following the accident. Additional facts will be added, as needed, in the consideration of the questions presented.

I

It is elementary that in passing upon the propriety of denying a defendant's motion for a directed verdict, the evidence must be considered in a light most favorable to the plaintiff; and it is only where there is no evidence of negligence by the defendant or evidence from which such negligence may be legally inferred that the court is justified in taking the case from the jury. Olney v. Carmichael, 202 Md. 226, 97 A.2d 37.

Plaintiff testified that he had worked for the Pennsylvania Railroad for 23 years; he had consumed one bottle of beer and part of another while bowling during the afternoon (his brother thought that plaintiff 'drank a couple'); the weather was 'bitter cold,' it had sleeted in the morning and the afternoon, and it was drizzly; he was walking easterly on the gravel (or shoulder) portion of the road and when he got in front of a Mrs. Morgan's home, there was some sod just beyond the gravel shoulder, which he found easy to walk upon; he proceeded past Mrs. Morgan's to a Mrs. Weaver's property where there was also a sod extending about three feet from a hedge; he saw the bus approaching when it was some 100 to 400 feet away; he was standing 'quite a ways off the edge [of the paved portion] of the road'; he realized that if he remained standing there, the bus driver would not 'recognize the fact that [he] wanted to board the bus'; he took a couple of steps 'toward the edge of the paved road with [his] hand extended,' and stopped around two feet or a little more from the paved portion of the road; the bus bore down on him fast (30 to 50 miles an hour) and he realized the driver of the bus did not intend to stop; the last thing he saw was 'that mirror and corner of the bus,' he whirled quickly to his right and the bus 'caught [him] on this corner and broke everything from my shoulder to my left buttock'; the next thing he remembered was that he was in the hospital. On cross, he stated that he was not watching the wheels of the bus, hence he could not definitely tell whether the bus left the paved portion of the road, 'but it looked like it to [him].'

One of plaintiff's brothers corroborated plaintiff's testimony relative to the events that occurred during the afternoon down to the time plaintiff left the stalled automobile to go home and then to work. A witness, Munday, a member of a volunteer fire company, reached the scene of the accident shortly after the collision; the closest part of plaintiff's body was approximately four feet from the paved portion of the road; the witness got down very close to plaintiff's face to check on his breathing, but detected no odors on his breath; the bus was some 120 to 150 feet from where the plaintiff was struck. When the witness Himelright, in charge of the rescue squad at Glen Dale, arrived at the scene, plaintiff was lying 'on the grass,' and, in checking his breathing, the witness noticed no odor of alcohol on his breath.

Dr. McCeney, the Shegogue family physician, testified that he examined the plaintiff on the evening of the accident; he found that there were breaks in the back of plaintiff's ribs on the left side from the fifth to the eleventh, and breaks in the front of the seventh, eighth and ninth on the same side; this indicated to the doctor that the force breaking the ribs had to come from the left side. The doctor also discovered a large bruise (which came later) on the plaintiff's buttocks and abrasions on his eye and left hand. It was uncontroverted that these injuries resulted from the collision.

One of appellants' witnesses, a passenger on the bus, said he saw appellee shortly before he was struck and when he last saw appellee, he was walking about two feet over on the shoulder. An officer of the Police Department, who investigated the accident and was called by the appellants, stated that the bus driver told him at the scene that 'something hit the side of the bus and he pulled to the side of the road to investigate what the object was and found it to be a pedestrian.' The bus driver, one of the appellants, testified that he was running what is known as a commuter run (this run is also known as a flag-stop run, which means that prospective passengers may 'flag' it to stop at any convenient spot); it was dark; he saw appellee, a couple of feet off the hard surface, walking in the same direction that the bus was traveling, and just as he 'got abreast of him, the corner of the bus, he suddenly came to the left, right end of bus, so I swerved as far as I could swerve' to the left. The witness heard a thump on the side of the bus, pulled off the road, stopped the bus, and ran back down the road where he found appellee lying with his feet, the nearest part of his body to the hard surface, some two or three feet therefrom. Two or more of appellants' witnesses, passengers on the bus, testified that the bus did not leave the paved portion of the highway, and another stated that just before the collision she and another passenger exclaimed 'look out,' the driver swerved to his left, and she heard the thud.

The above evidence was sufficient to take the case to the jury on at least two theories. From it, the jury could have found (although they could have adopted appellants' theory as to how the accident occurred) that the plaintiff was struck while walking on the paved portion of the highway because of the driver's failure to keep a proper lookout, or that the driver carelessly ran into the plaintiff while he was on the shoulder attempting to flag the bus to a stop.

II

It would serve no useful purpose to set forth in detail that portion of the court's instructions objected to under this heading. Appellants contend that the court placed a greater duty with respect to the use of the highway on the part of a motorist to a pedestrian than the law imposes. A careful reading of the charge, we think, discloses that the court's instructions did not conflict with our restatement of the rule in Wiggins v. State, 232 Md. 228, 192 A.2d 55 wherein, in substance, we said that in the absence of special circumstances, pedestrians using public highways (without the confines of towns and cities and not at intersections) have a duty to watch for and expect to find approaching vehicular traffic thereon, and drivers of motor vehicles have a corresponding duty--particularly where there are no sidewalks--to watch for and expect to find pedestrians walking on or off the sides of the highway. We find no error here.

III

During the course of instructing the jury, the court stated:

'If you further find that the driver of the bus either saw or should have seen the pedestrian in a position of peril or danger, then it was his duty to take whatever steps were within his power to avoid injury to the pedestrian. And likewise, if the pedestrian found himself in a position of peril he is required, under the law, to do everything that is necessary to take himself from that position of peril, if you find that he has placed himself in such a position.'

Appellants take the position that the above was an instruction on the doctrine of last clear chance, which should not have been given in the case. Although we find in the two quoted sentences some of the phraseology...