Ebert Ice Cream Co. v. Eaton

• Decision Date: 12 November 1936
• Docket Number: 13.
• Citation: 187 A. 865,171 Md. 30
• Parties: EBERT ICE CREAM CO. ET AL. v. EATON ET AL.
• Court: Maryland Court of Appeals

187 A. 865

171 Md. 30

EBERT ICE CREAM CO. ET AL. v. EATON ET AL.

No. 13.

Court of Appeals of Maryland

November 12, 1936

Appeal from Circuit Court, Frederick County; Arthur D. Willard Judge.

Action by Virgil R. Eaton, for himself and to the use of the Ætna Insurance Company, against the Ebert Ice Cream Company and another. From an adverse judgment, defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, PARKE, SLOAN, MITCHELL, SHEHAN and JOHNSON, JJ.

Leslie N. Coblentz, of Frederick, and John Y. Offutt, of Baltimore (Parsons Newman and John S. Newman, both of Frederick, and Joseph Bernstein, of Baltimore, on the brief), for appellants.

Rignal W. Baldwin, Jr., of Baltimore (Harold Tschudi and William D Macmillan, both of Baltimore, and William Storm, of Frederick, on the brief), for appellees.

SLOAN Judge.

In this case Virgil R. Eaton for himself and to the use of the Ætna Life Insurance Company, appellee, sues the Ebert Ice Cream Company and Glenn A. Stone, appellants, under section 58 article 101, of the Code, for injuries sustained by him by the alleged negligence of a third party while in the course of employment for which he had been allowed compensation. From a judgment in favor of the plaintiff, the defendants appeal. The only questions submitted and argued were the legal sufficiency of the evidence of primary negligence, and whether the trial court should have held the plaintiff guilty of contributory negligence as a matter of law, and have directed a verdict for the defendants.

The evidence is that the plaintiff, Virgil R. Eaton, on the 28th day of June, 1934, was in the employ of Markell & Ford, coal dealers, of Frederick. His home was located on the east side of North Market street, between Eighth and Ninth streets. On that day he drove home to lunch, parking his car on the west side of the street, opposite his residence. After lunch, in response to a call from his employer's office, the plaintiff left his house, and while on the way to his car across the street met with the accident which resulted in this case. He testified that when he reached the curb on the east side of street he "stood there, looked out North Market Street then I looked South." He saw two cars, the second a light Ford truck, approaching from the south. When he first saw them they were from three to four hundred feet away, south of Eighth street, which is about 150 feet from his house. The location of the cars was given by the plaintiff with reference to certain named residences and buildings, and there is no certain evidence from which we can say how far away the trucks were when he was about to cross the street. There is, however, enough in the record for us to say whether there is legally sufficient evidence of primary negligence to take the case to the jury, or whether there was sufficient evidence of the plaintiff's negligence to direct a verdict against him, as a matter of law, in attempting to cross the street between intersections with two cars, one following the other, approaching from his left. What he did say, and it is not only not disputed, but is corroborated and conceded, is that the plaintiff passed in front of the first car, and was struck by the second, defendants', after he had crossed the center of the street while going toward his car which was parked against the curb on the west side of the street.

The first car, owned and driven by George W. Ogle, was proceeding northward on Market street at a speed of from twenty to twenty-five miles an hour, and his description of what happened was: "As I passed Eighth Street corner I noticed Mr. Eaton had stepped off the curb and started across the street, so naturally I proceeded on. He had plenty of room to pass in front of me, and as I began to get closer to him I pulled to the right naturally, not much but maybe a little bit, in order to give him plenty of room to pass on over, and waved my hand to him." "He stepped over the center of the street, and plenty of room in front of me for me to go ahead. I proceeded on and just then the truck hit him." He heard the truck coming "just a little bit before it hit him." He then "pulled to the East curb and stopped," alighted, and went to the assistance of the plaintiff, who had been thrown by the truck with his head lying on the west curb. When the Ebert truck stopped it was to the north of the witness and west of the center of the road.

Raymond Brown, a colored man, was standing on the southeast corner of Market and Eighth streets when the accident happened. He saw Mr. Eaton "come off his porch and start across the street." "He passed over four or five feet. After he crossed this car over I saw the ice cream truck approach." "To the west of the center of the street." "I saw the ice cream truck when it struck him." "The truck attempted to pass the truck in front of him." "It was to the left of the center of the street." "He was going fast." "I couldn't see him in front of the other truck, but I just got a slight glimpse of him just before the ice cream truck struck him." "Eaton passed the Ogle truck. He crossed over in front of the truck. The Ogle car, that is the first car, passed between Eaton and the curb." He said the Ogle car was to the right of the center.

Joseph F. Rhoderick was standing inside his doorway at 740 on the east side of North Market street, which is two doors south of Eighth street. He saw Ogle's car go by, followed by Ebert's truck forty to fifty feet behind, both going at about the same speed, twenty to twenty-five miles an hour. His attention was attracted by the screeching of brakes. He stepped out of the doorway, looked in the direction of the noise, and saw the body of a man in the air. He ran directly to him, and found the plaintiff lying with his face on the west curb, and saw Ebert's truck "pointed in towards the (west) curb." He and Ogle put the plaintiff in the defendants' truck and went with him to the hospital. After leaving the hospital he went to his home, thence to the scene of the accident, where he and Officer B. H. Cecil of the State Police measured the skid marks made by the defendants' car; "they started just about the center of the highway and ran almost to the west curb." Officer Cecil testifying that the skid marks made by both wheels stopped seven feet nine inches from the west curb. The left mark "went at an angle for a length of 54 feet, 6 inches North", the right skid mark was 40 feet long. The street was paved with black macadam. Cumberland & Westport Transit Co. v. Metz, 158 Md. 424, 452, 149 A. 565.

Glenn A. Stone, one of the defendants, and the driver of the Ebert truck, testified that he followed Ogle's car down Market street, separated from it about fifteen or twenty feet, at a speed of twenty to twenty-five miles an hour. "I was following along behind Mr. Ogle and all at once he just pulled right across the road to the right and I pulled out to the left to pass him and Mr. Eaton stepped right in front of me. * * * He didn't pull clear over against the curb. I couldn't say how far away from it he was. * * * My automobile was about the middle of the road I reckon. * * * I pulled over to keep from hitting Mr. Ogle. I thought he was going to stop. When he slowed up I pulled out to go around him. * * * I hit Mr. Eaton at that time. * * * Just when he stepped in front of the truck." He "didn't see him before when he came out from the side or any place." Upon seeing Mr. Eaton, he threw on the brake and pulled to the left. Asked, "What did you pull to the left for?" he said, "Thought I would miss him." Asked what he observed about Eaton when he first saw him, he answered: "I couldn't tell. He just stepped right in front of the truck. That's all there was. I didn't see him till he stepped out in front of the other till he was in front of me." He couldn't see him because "he was in front of the other automobile." The plaintiff said he was no more than three feet from his car when he was struck. "I was almost certain I could reach my machine when he rolled me down." On cross-examination Stone said his brakes were not equally adjusted, "one of them stopped first. One wheel of the truck slid first." He did not see Eaton leave the curb and walk in front of Ogle's car. "Just because of that car is all I can say. The car was in front of me."

There were two exceptions to evidence, one to the refusal of a motion for a mistrial, and one to the rulings on the prayers. The defendants have abandoned all exceptions except the rulings on their first and second prayers for an instructed verdict on the grounds of contributory negligence and legally insufficient evidence of the defendants' negligence respectively, argued...