Crunkilton v. Hook

• Decision Date: 17 May 1945
• Docket Number: 42.
• Parties: CRUNKILTON v. HOOK (two cases).
• Court: Maryland Court of Appeals

42 A.2d 517

185 Md. 1

CRUNKILTON v. HOOK (two cases).

No. 42.

Court of Appeals of Maryland

May 17, 1945

Appeal from Baltimore City Court; Joseph Sherbow, Judge.

Action by Blanche Hook against Leonard W. Crunkilton for personal injuries sustained by plaintiff when struck by defendant's automobile, and action by Harry F. Hook husband of Blanche Hook, for hospital and medical expenses and loss of services resulting from injuries to plaintiff wife. From judgment in favor of Blanche Hook for $3,500 and judgment in favor of plaintiff Harry F. Hook for $1,500 defendant appeals.

Affirmed.

Roszel C. Thomsen, of Baltimore (Clark, Thomsen & Smith, of Baltimore, on the brief), for appellant.

Michael J. Manley, of Baltimore (Jenifer & Jenifer and Walter M Jenifer, all of Towson, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, HENDERSON, and MARKELL, JJ.

DELAPLAINE Judge.

Leonard W. Crunkilton is appealing from two judgments entered against him on verdicts of a jury in the Baltimore City Court; one in favor of Blanche Hook for $3,500 for injuries sustained in a collision with an automobile driven by defendant on Gwynn Oak Avenue in Woodlawn, Baltimore County, the other in favor of Harry F. Hook, her husband, for $1,500 for hospital and medical expenses and loss of services resulting from her injuries.

On the night of February 25, 1943, Mrs. Hook, aged 63, started from her residence on the east side of the avenue on her way to the Woodlawn School, on the west side, to appear there before the Ration Board. She testified that she paused at the cross-walk in front of the school to look for approaching automboiles, and after a north-bound car had passed she looked toward the north, but seeing no other car approaching, she stepped down from the curb and started across the street, which is 34 feet wide, but just before she reached the white line in the center of the street, the headlights of a southbound car flashed upon her and she was knocked down instantly. Crunkilton testified that he saw Mrs. Hook standing on the curb when he was about 40 feet away, but did not slacken his speed or blow his horn, as he had no reason to believe she would attempt to cross the street and fail to see his car; he then glanced to the right to see if any car parked in front of the school was about to move, and when he looked again to the left, he saw her hurrying across the street about 15 feet away and about 5 feet to the left; he immediately applied his brakes, but his left fender struck her.

The first issue is whether there is any evidence of negligence legally sufficient for submission to the jury.

Defendant claims that he was driving at the speed of only about 15 miles an hour. However, it is unlawful to operate a motor vehicle recklessly or at a rate of 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. Acts of 1914, ch. 832; Code 1939, art. 56, sec. 196; Code, 1943 Supp., art. 66 1/2, sec. 156; State v. Magaha, 182 Md. 122, 128, 32 A.2d 477. Plaintiffs charge that defendant failed to drive on the right half of the street. One of the 'rules of the road' in force at the time of the accident prescribed that all vehicles must at all times keep to the right of the center of the highway when driven upon highways of sufficient width, except (1) upon streets or roads where traffic is permitted to move in one direction only, (2) when overtaking and passing another vehicle, and (3) when it is impracticable to travel on such side of the highway. Acts of 1939, chs. 377, 382; Code 1939, art. 56, sec. 235. In 1943 the Legislature re-enacted the rule with modifications of language. Acts of 1943, ch. 1007; Code, 1943 Supp., art. 66 1/2, sec. 162. While a driver who violates this statutory rule may not necessarily be negligent, his action is strong evidence of negligence where such violation directly and proximately causes a collision, and the burden is then on him to show that the condition of the road or an emergency in the traffic had caused him to be right-fully on the left side of the road. It is established that testimony showing that a driver failed to keep to the right of the center of a highway is sufficient evidence to warrant the court in submitting the case to the jury on the question of the driver's negligence. Consolidated Gas., Electric Light & Power Co. v. O'Neill, 175 Md. 47, 51, 200 A. 359.

Defendant endeavored to show discrepancy in Mrs. Hook's testimony by proving that she had testified at a traffic hearing that she had 'just crossed over' the white line when she was struck. She qualified her statement by saying that she 'might have been right on it,' but she stated positively that she could still see the white line, and that it was right in front of her. It appears that there were three lines, the middle line being yellow, with a white line on each side. It also appears that Mrs. Hook was referring to the eastern white line. We are not convinced that there was any substantial discrepancy in her testimony. Accidents of this kind happen so suddenly that it is often difficult to state with exactness the position of each leg at the moment of impact. In any event, the fact that a plaintiff has made inconsistent statements on a previous occasion does not preclude him from having the jury decide as to the credibility of his testimony at the trial. Otherwise, the trial court would be compelled to give conclusive effect to the previous statement. We hold that the testimony of a plaintiff may be impaired, but not rendered nugatory, by proof of previous inconsistent statements and the problem arising from the discrepancy should be submitted to the jury for solution. Porter v. Greenbrier Quarry Co., 161 Md. 34, 155 A. 428; Florentine v. State, Md., 40 A.2d 820.

Defendant also contends that the evidence is too uncertain and inconclusive to be made the basis of a legal conclusion. We cannot accept that view. Defendant, it is true, shows that his car stopped west of the center line after the collision; but Mrs. Hook is equally positive that she had not crossed the center line when she was struck. Moreover, after the accident she was found lying on the center line some feet in front of the car. We think the jury might rationally infer that if she had actually crossed the line, and defendant had been driving west of the line, her body would have been entirely west of the line. The question before us is not whether plaintiffs' evidence is true, but assuming it to be true and accepting all rational inferences tending to support their right to recover, and rejecting defendant's theory of the accident, whether the case is sufficient to establish liability of defendant. It is a familiar principle of Maryland practice that a prayer seeking to take the case away from the jury on the ground of total failure of evidence to support the plaintiff's case will not be granted if there is any evidence, however slight, legally sufficient as tending to prove it, that is to say, competent, pertinent, and coming from a legal source, but the weight and value of such evidence will be left to the jury. Porter v. Greenbrier Quarry Co., 161 Md. 34, 155 A. 428; Fisher v. Finan, 163 Md. 418, 420, 163 A. 828; Geschwendt v. Yoe,

174 Md. 374, 198 A. 720; 2 Poe, Pleading and Practice, 5th Ed., sec. 295A.

The second issue is whether Mrs. Hook was guilty of contributory negligence as a matter of law. It is a general rule that to establish contributory negligence as a matter of law, the act relied on must be distinct, prominent and decisive, and one about which ordinary minds cannot differ. Friedman v Hendler Creamery Co., 158 Md. 131, 147, 148 A. 426; Cogswell v. Frazier, Md., 39 A.2d 815. We have decided that a pedestrian cannot walk blindly between intersections into oncoming traffic, and be heard to say that he did not see the danger, which he could have seen if he had looked. Ebert Ice Cream Co. v. Eaton, 171 Md. 30, 37, 187 A. 865. If a pedestrian suddenly steps from a side-walk into the path of an approaching car, and he either did not look to see if any car was approaching or made no effort to avoid it by stopping or stepping aside, although he could easily have seen it in time to have kept or taken a position of safety and thus avoided the accident, he is guilty of...