Dallas v. Diegal

• Court: Maryland Supreme Court
• Writing for the Court: MELVIN, Judge.
• Citation: Dallas v. Diegal, 184 Md. 372, 41 A.2d 161 (Md. 1945)
• Decision Date: 31 January 1945
• Docket Number: 8.
• Parties: DALLAS v. DIEGAL et al.

41 A.2d 161

184 Md. 372

DALLAS v. DIEGAL et al.

No. 8.

Court of Appeals of Maryland

January 31, 1945

Appeal from Superior Court of Baltimore City; Joseph Sherbow, Judge.

Personal injury action by Mary Dallas, an infant, by Walter Dallas her father and next friend, against John Diegal and another. The jury returned a verdict for plaintiff. From a judgment for defendant notwithstanding the verdict, plaintiff appeals.

Affirmed.

O'Ferrall & O'Ferrall, of Baltimore, for appellant.

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

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

MELVIN Judge.

Mary Dallas, a child two years old at the time of the accident was run over and injured by a bakery truck as it was being backed away from its parked position on the wrong side of a street or road in the outskirts of Baltimore City. By her father and next friend she sued the driver, John Diegal, and the owner, Capital Bakeries, Inc., for damages on the ground of the driver's alleged negligence, and obtained a verdict of $1,200 from a jury in the Superior Court of Baltimore City. The trial judge granted the defendants' motion for judgment n. o. v., and it is from this judgment that the plaintiff has appealed.

The facts of the case are undisputed. The above named driver of the truck while on his assigned route about 11 o'clock on the morning of July 8, 1942, 'pulled over' to the left or wrong side of the road adjacent to the sidewalk leading to the front porch of appellant's home. The mother of the infant made some purchases from him and then started toward her front door. As she did so she heard a scream and, turning around, saw him 'pick Mary up in back of his truck.' She did not see the child at any time while she was conversing with, or purchasing articles from the bakeryman and 'had no idea that Mary was away from the rear of the house,' where she had been playing with her little brother under the care of a thirteen year old cousin, William A. Dallas. William saw the truck when it drove up in front of the house and kept on playing with the boy. The next thing he knew Mary was gone. When he went to look for her he saw the truck driver pick her up at the rear of the truck, toward the middle of the road. There were no eyewitnesses to the accident and none who saw her even leave the yard. The testimony of Diegal, corroborated by that of his helper, Frank J. Plunkett, was that 'there was nothing in sight and no one around' when the former started to move the truck away from the Dallas home, although they both looked to see that the way was clear.

On this record of facts it is claimed for appellant that there was, at least, 'slight evidence' of negligence sufficient to have warranted submission of the case to the jury and, particularly, to have defeated the motion for judgment n. o. v. The two facts singled out as the basis for this contention are: (1) Parking on the wrong side of the street facing on-coming traffic,--admittedly a violation of the statute, and (2) moving from such a position in reverse,--described as an 'irregular' operation. It is not suggested that there is any evidence in the record indicating that the parked position of the truck or its reverse movement caused the accident.

The law is clear and explicit as to both of these points and is adverse to the appellant. It is the universally accepted rule that mere violation of a statute or ordinance will not support recovery in a negligence case unless it be further shown by legally sufficient evidence that the alleged negligence was the proximate cause of the injuries. That rule has been repeatedly stated by this Court and is in conformity with the recognized law on the subject in other jurisdictions as well.

The early case of Philadelphia, W. & B. R. Co. v. Stebbing, 62 Md. 504, 517, expresses the principle in these words: 'It must appear that the negligent breach of the duty imposed by the ordinance was the direct and proximate cause of the injury complained of, and that such injury would not have occurred but for the violation of that duty.' This has been reaffirmed in a number of cases since then, and only recently in Buczkowski v. Canton R. Co., 181 Md. 377, 379, 380, 30 A.2d 257, 258, in which the rule is thus summarized: 'It has been frequently decided by this court that the violation of a statute will not support an action for damages on account of an injury sustained, unless such violation is the proximate cause of the injury.'

Other cases directly in point are: Gloyd v. Wills, 180 Md 161, 23 A.2d 665; People's Service Drug Stores, Inc., v. Somerville, 161 Md. 662, 665, 158 A. 12, 80 A.L.R. 449; Greer Transportation Co. v. Knight, 157 Md. 528, 146 A. 851; Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 125 A. 779; City of...