East Baltimore Transfer Co. v. Goeb

• Decision Date: 02 March 1922
• Docket Number: 16.
• Citation: 118 A. 74,140 Md. 534
• Parties: EAST BALTIMORE TRANSFER CO., Inc., v. GOEB.
• Court: Maryland Court of Appeals

118 A. 74

140 Md. 534

EAST BALTIMORE TRANSFER CO., Inc., v. GOEB.

No. 16.

Court of Appeals of Maryland

March 2, 1922

Appeal from Superior Court of Baltimore City; James P. Gorter Judge.

"To be officially reported."

Action by George Goeb, Jr., by his father and next friend, George Goeb, Sr., against the East Baltimore Transfer Company Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

W. Herdman Schwatka, of Baltimore (John D. C. Duncan, and Duncan & Schwatka, all of Baltimore, on the brief), for appellant.

E. Milton Altfeld, of Baltimore, for appellee.

BRISCOE J.

This is an appeal from a judgment recovered by the plaintiff against the defendant the East Baltimore Transfer Company, Incorporated, in the superior court of Baltimore city, for the sum of $5,000, for certain injuries alleged to have been sustained by the infant plaintiff by being struck by an automobile truck owned by and in the service of the defendant company. The suit was brought against the appellant company and one J. D. Wallace jointly, but a non pros. was entered at the trial as to the defendant Wallace.

There are 10 bills of exception in the record, but some of these, it is stated in the appellant's brief, are not pressed on this appeal.

The declaration avers and sets forth that on or about the 2d day of September, 1920, while the infant plaintiff was upon a public highway, to wit, Linwood avenue near the intersection of Baltimore street, both being public thoroughfares of Baltimore city, and exercising due and ordinary care for his safety, an automobile truck belonging to the defendant and operated by its servant, agent, and employee was being driven south on Linwood avenue in a negligent and careless manner on the left-hand side of the street, and with great speed ran into and struck the infant plaintiff, knocking him down, and the wheels of the truck passing over his feet, necessitating the amputation of several toes on each foot, and otherwise seriously and permanently injuring him about the forehead, body, and limbs.

The first and second exceptions were reserved to the action of the court in overruling an objection of the defendant to a question asked the witness Dailey, and subsequently to the action of the court in overruling a motion to strike out the answer which had been given. The witness testified that he saw the accident; that the automobile truck, which struck the infant plaintiff was going north on the wrong side or left-hand side of the street or avenue; that the boy (plaintiff) was going from the east to the west side, and he was two-thirds of the way across when the truck struck him, knocked him down, and ran about two pavements before the chauffeur could stop it, and that the truck was going at a good rate of speed when it struck him. The witness was then asked:

"Was there anything in the center of the street at that time?"

And he answered:

"Nothing in the middle of the street to stop the chauffeur from being on the right-hand side, where he ought to have been."

There was clearly no reversible error and no injury to the defendant by the admission of the question, nor in the answer given by the witness as stated and set out in the first and second exceptions in this case.

The third, fourth, and fifth bills of exception relate to the rulings of the court in permitting the case to be reopened, over the objection of the defendant, for further testimony, after the plaintiff had rested his case and the defendant had submitted its prayers, asking for a directed verdict in favor of the defendant. The case, it will be seen, was reopened for the purpose of allowing the plaintiff to prove who was the driver of the truck that caused the accident, and to prove that the truck belonged to the defendant and the East Baltimore Transfer Company. The plaintiff had failed to offer in the course of the trial the necessary evidence for a proper consideration of the case, and it was entirely within the discretion of the court to permit the additional testimony to be introduced. The matter was within the sound discretion of the court below, and its action in this respect is not reviewable by this court, and no ground for an appeal. Dailey v. Grimes, 27 Md. 446; State v. Duvall, 83 Md. 123, 34 A. 831; Guyer v. Snyder, 133 Md. 22, 104 A. 116; Dorr Cattle Co. v. Chi. C. W. Ry. Co., 128 Iowa, 359, 103 N.W. 1003; Carr v. Ga. Loan & Trust Co., 108 Ga. 757, 33 S.E. 190.

The sixth, seventh, and eighth exceptions were taken to the admission in evidence of the proof itself allowed to be introduced by the court, after the reopening of the case. This evidence was competent and admissible as tending to prove the issue in the case on the part of the plaintiff, and there was no error in the rulings set out in these exceptions.

The ninth exception was taken to the introduction in evidence of certain records of the automobile commissioner showing the owner of license No. 13667 to be the defendant the East Baltimore Transfer Company. The objection to this evidence was properly overruled, and the court was clearly right in admitting the record as evidence in the case. The witness Thoman had testified that he took the number of the truck that ran over and struck the infant plaintiff, and it bore the number, Maryland license No. 13667, and the record containing this license was therefore admissible in evidence. Stewart Taxi-Service Co. v. Roy, 127 Md. 76, 95 A. 1057; Vonderhorst Brewing Co. v. Armhine, 98 Md. 406, 56 A. 833.

At the conclusion of the testimony on the part of the plaintiff, the defendant submitted no testimony, but rested its case, and reoffered its three prayers. The plaintiff submitted two prayers; of these the plaintiff's first prayer was granted, and the defendant's three prayers were rejected. The action of the court in granting the plaintiff's first prayer, in rejecting the defendant's three prayers, and in overruling the defendant's special exception to the plaintiff's first prayer forms the basis of the tenth and last exception. The plaintiff's first prayer was the usual damage prayer in negligence cases, and has been approved by numerous cases in this court. There can be no serious objection to such a prayer on the statement of facts set out in the record in this case, and the prayer was properly granted. The defendant's first, second,...