Epstein v. Ruppert
| Decision Date | 13 December 1916 |
| Docket Number | 20. |
| Parties | EPSTEIN et al. v. RUPPERT. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Henry Duffy, Judge.
"To be officially reported."
Suit by Charles H. Ruppert against Jacob Epstein, Nathan Epstein Abraham I. Weinberg, A. Ray Katz, and Sidney Lansburgh copartners trading as the Baltimore Bargain House. From a judgment for plaintiff, defendants appeal. Judgment affirmed.
Plaintiff's and defendants' granted prayers follow:
Plaintiff's first prayer:
If the jury find that on or about the 5th day of April, 1915, the plaintiff was injured, and that said injury was caused by a truck belonging to the defendants while traveling upon Baltimore street at or about its intersection with Eutaw street, public thoroughfares of the city of Baltimore, if the jury so find, and that said injury resulted directly from the want of ordinary care and prudence of the driver or servant of the defendants in handling and managing said truck, and not from the want of ordinary care and prudence on the part of the plaintiff directly contributing to the injury, then the plaintiff is entitled to recover.
Plaintiff's second prayer:
If the jury shall find a verdict for the plaintiff, then in estimating the damages they are to consider his health and condition before the injury complained of as compared with his present condition in consequence of said injury, and also the physical and mental suffering, if any, to which he was subjected by reason of said injury, and to allow him such damages as in the opinion of the jury would be a fair and just compensation for the injury which he has sustained.
Defendants' sixth prayer:
The court instructs the jury that the mere happening of the accident complained of raises no presumption of negligence on the part of the chauffeur of the defendants operating the automobile referred to in the evidence, but the burden is upon the plaintiff to establish by a fair preponderance of affirmative evidence that negligence on the part of said chauffeur caused said accident, and if the minds of the jury were left by the evidence in a state of even balance as to the existence of such negligence, then the verdict of the jury must be for the defendants.
Defendants' eighth prayer:
The court instructs the jury that, if they find from the evidence that the plaintiff stepped or jumped in the way of the automobile of the defendants when it could not be arrested in its course, and under circumstances where with ordinary care on the part of the chauffeur in charge of said automobile the automobile could not be brought to a pause early enough to save the plaintiff from injury, the defendants are not liable, and the verdict of the jury must be for the defendants.
Defendants' ninth prayer:
The court instructs the jury that, if they find from the evidence that the injuries complained of resulted from an unavoidable accident unmixed with negligence on the part of the servant or chauffeur of the defendants, in charge of the automobile referred to in the evidence, then the verdict of the jury must be for the defendants, and by negligence is meant failure to exercise such reasonable care as a reasonably prudent person would have exercised under like circumstances.
Defendants' tenth prayer:
The court instructs the jury that, if they find that the automobile mentioned in the evidence was being driven east on Baltimore street in charge of the servant or chauffeur of the defendants, and was being driven at a reasonable rate of speed and on the right of the middle of said street, and shall further find that a wagon on which plaintiff was riding was being driven west on said street on or near the west-bound street car tracks in said street, and to the left of the center of said street, and shall further find that when the wagon and automobile were abreast of one another the plaintiff suddenly stepped or jumped in the way of said automobile when it could not be arrested in its course, and under circumstances where with ordinary care on the part of the chauffeur the automobile could not be brought to a stop in time to save the plaintiff from injury, the defendants are not liable, and the verdict of the jury must be for the defendants.
Defendants' fourteenth prayer:
The jury are instructed that, if the minds of the jury are left by the evidence in a state of even balance as to whether it was an automobile in charge of defendants' chauffeur that was the cause of the accident, then their verdict must be for the defendants.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.
Aubrey Pearre, Jr., of Baltimore (Barton, Wilmer & Stewart, of Baltimore, on the brief), for appellants.
William Colton, of Baltimore, for appellee.
This is a suit by the plaintiff against the defendant company, trading as the Baltimore Bargain House, to recover damages for personal injuries received by him on the 5th day of April, 1915, by reason of the alleged negligence of the defendants in driving an automobile along Baltimore street, one of the thoroughfares of Baltimore city. The record in the case contains four bills of exceptions. The first, second, and third present questions upon the admission of evidence, and the fourth relates to the rulings of the court upon the prayers, and to the overruling of the defendants' special exception to the plaintiff's first prayer. From a judgment in favor of the plaintiff for the sum of $500, the defendants have appealed.
The declaration in the case alleges that, while the plaintiff was in the act of prudently and carefully crossing Baltimore street at or about the intersection with Eutaw street, they being public thoroughfares of Baltimore city, the defendants negligently and carelessly drove, managed, and conducted, and caused and procured negligently and carelessly to be driven, managed, and conducted, an automobile along and upon said Baltimore street so that on the day and year mentioned, and directly because of the premises, the plaintiff was knocked down and then and there seriously and permanently injured about the head, body, and limbs, caused to suffer great physical pain and mental anxiety, disqualified in part from pursuing his ordinary avocation, whereby he has lost the emoluments he otherwise would have received from his said calling, has been obliged to employ medical aid and purchase medicines and appliances at great cost and expense, and is otherwise injured and damaged, and that his injuries were directly caused by the negligence and want of care of the defendants, their agents and servants in the premises, and without negligence or want of care on the part of the plaintiff directly thereunto contributing.
The facts relied upon by the appellee to sustain the action are these:
The plaintiff testified that he was a stage carpenter and was about 29 years old. He stated:
That on April 5, 1915,
He further testified that the wagon in which he was traveling was going west on Baltimore street, and the defendants' truck or automobile was traveling east, and that he was struck on the left foot above the heel by the front wheel of the automobile at the northwest corner of Baltimore and Eutaw streets, as he stepped down from the wagon to the street, and as soon as he alighted on the ground that he had an unobstructed view of Baltimore street, and before leaving the wagon he looked ahead and saw the automobile, it was the only vehicle in the block,...
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