Fisher v. Finan

• Decision Date: 12 January 1933
• Docket Number: 55.
• Citation: 163 A. 828,163 Md. 418
• Parties: FISHER v. FINAN.
• Court: Maryland Court of Appeals

163 A. 828

163 Md. 418

FISHER v. FINAN.

No. 55.

Court of Appeals of Maryland

January 12, 1933

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

Suit by Essie B. Fisher against Joseph B. Finan. From a judgment for defendant, plaintiff appeals.

Reversed and new trial awarded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

Harold H. Hoffman, of Hagerstown, and F. Brooke Whiting, of Cumberland (Milton G. Urner, Jr., of Frederick, on the brief), for appellant.

Charles Z. Heskett and William C. Walsh, both of Cumberland (George R. Hughes, of Cumberland, and William M. Storm, of Frederick on the brief), for appellee.

PATTISON J.

The appellant, Essie B. Fisher, was struck and severely injured by an automobile driven by the son of its owner, Joseph B. Finan, the appellee. Mrs. Fisher, on the day of the accident, had been engaged in picking apples at Hancock, Md. After the day's work was over, she and others who worked with her started for their respective homes in a truck of their employer. When about seven miles west of Hancock on the National Highway, the truck was stopped on the extreme right, or north, side of the road. The right wheels were up to the north bank, off the hard surface of the road, and the left wheels were upon the concrete shoulder of the macadam road. The truck, when stopped, was immediately opposite the Woodmont road, which leads into the National Highway from the south, but does not cross it. It was upon this road that Mrs. Fisher lived. The truck was stopped at the point named to let her and one other person, Mrs. Hoffman, off, so that they might take the Woodmont road to their homes.

The evidence is that Mrs. Fisher got out at the rear of the truck upon the concrete shoulder and Mrs. Hoffman followed her. It was while attempting to cross the National Highway at this point that Mrs. Fisher was struck by the appellant's automobile coming from the west or from the direction of Cumberland. The appellant brought suit against the appellee to recover for the injuries sustained by her resulting from the accident.

At the conclusion of plaintiff's evidence, two prayers were granted directing a verdict for the defendant, one because of a want of evidence legally sufficient to entitle the plaintiff to recover, and the other because of plaintiff's contributory negligence. A verdict was rendered as directed, and upon it a judgment was entered for the defendant. It is from that judgment that the appeal in this case was taken. The only rulings of the court to be reviewed by us on that appeal are those upon the prayers above mentioned.

The well established rule of law by which we are to be governed in deciding the question presented by the first of these prayers is that "a prayer seeking to take the case from the Jury, on the alleged ground of a 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." Poe (Tiffany Ed.), p. 258, § 295A; Taxicab Co. of Baltimore City v. Emanuel, 125 Md. 259, 93 A. 807; Com'rs of Delmar v. Venables, 125 Md. 477, 94 A. 89; Hodges v. Baltimore Engine Co., 126 Md. 315, 94 A. 1040, Ann. Cas. 1917C, 766; General Automobile Owners' Ass'n, Inc., v. State, to use of Anna Penn, 154 Md. 204, 140 A. 48; Taxicab Co. v. Hamburger, 146 Md. 122, 125 A. 914.

The evidence which is to be considered in the light of the aforegoing rule is as follows:

Mrs. Fisher, a woman forty-three years of age, testified that she got off the rear of the truck on the concrete and then stepped out from behind the truck. "I looked both ways and saw this car coming down the pike and I turned to step back."

"Q. Did you see the car when you looked around the corner? A. Not at first, no.

Q. When did you see the car? A. I had to look if there was one coming out on Woodmont. I didn't see anything. Then I looked East on my own side the road to see if any was coming West, and when I looked East then is when this car was coming.

Q. How many steps did you take after you stepped off the truck on to the road? A. I will make oath I didn't take more than three steps after I got off the truck.

Q. Did you have to step out from behind the truck? A. Yes sir, I had to. * * *

Q. In order to see what was coming? A. Yes, I couldn't see through it.

Q. Did you look to your left (the East) when you got off? A. Yes, sir.

Q. Did you see anything coming either way? A. Not the first time I looked, no, but when I looked again I did.

Q. Then what did you do? A. I turned around to step back.

Q. How far had you got on the road? A. I am positive I was not in the center of the road.

Q. You are positive you hadn't reached the center of the road? A. Oh yes, positive I hadn't reached the center of the road.

Q. And you looked to your right? A. Yes, sir.

Q. And what did you see coming? A. I saw this car coming.

Q. Then what did you do? A. I stepped back.

Q. How far from the truck were you when you were hit? A. Well it seemed to me I could nearly reach the truck.

Q. About a foot and a half you think? A. I wouldn't want to tell you a story, but I don't think it was any more than that."

She testified it was a clear, bright day. She did not "know whether or not the sun had gone down, but I could see."

On cross-examination, when asked: "I want to ask you if you stated in your direct examination that you did not see the Finan car, that is the car that struck you, the first time you looked up the road?" she replied: "I positively didn't tell you that.

"Q. Do you understand the question? How many times did you look up the road in the direction from which the Finan car came, that is the car that struck you? A. Well, I looked twice.

Q. And the first time you didn't see the car? A. No, because I looked over to see if there was one up that road, coming up that way. My own side of the road was the most important and when I looked up the pike I seen this car coming and I stepped back.

Q. Then you didn't look up the road? A. I didn't look up the road? I positively told you I looked up the road.

Q. When did you look up the road? A. When I stepped out from behind the truck.

Q. You didn't look up the road before you got off, did you? A. I testified I positively said I stepped out from behind the truck and I looked up the road.

Q. That was after you stepped out from behind the truck and you hadn't looked out from behind the truck up the road before you stepped from behind the truck? A. I told you positively that I looked out from behind the truck both ways.

Q. What did you see up the road when you looked up there after you stepped from behind the truck? A. What would you expect me to see but this car?

Q. Did you see the car then? A. I stepped out and when I went to step back he hit me.

Q. That was after you were out in the road? A. I positively was not in the middle part of the road.

Q. You didn't look up the road before you stepped out from behind the truck, is that correct? A. I looked out when I stepped out from behind the truck I looked up the road and saw this car coming and I stepped to turn back and it hit me.

Q. You told us a while ago you took about three steps out on the road, that right? A. I said I didn't take more than three steps when I got off the truck. I couldn't have made many steps when I got off on the concrete * * * I got off the truck on the side towards the bank, as far away from the road as possible. I had no box to step on, I just jumped off and I went over to the side of the truck nearest the road; I stepped out from behind the truck and looked both ways.

Q. You could have looked from the back of the truck, could you not, when you got out to the edge of it? A. Yes, sir, when I stepped out to the edge of the truck I looked both ways and I saw this car coming and I went to step back and it hit me.

Q. Mrs. Fisher, are we to understand from your testimony that you had not quite reached the middle of the road when you saw this car? A. I positively was not to the center of the road, positively was not."

Harry Brooks, foreman at the orchard, where Mrs. Fisher worked, testified that he drove the truck, in which Mrs. Fisher rode, and that he drove to a point in the road opposite Woodmont road, and pulled over to the right as far as he could and stopped. When he stopped, he saw no car coming down from Cumberland; there was none in sight at that time. He did not know how long he had been sitting there when he saw the car approach. When those who were to get off at that point had done so, he was told to go ahead, which he did. "I was starting off when I noticed the car, coming from Cumberland." Brooks could not say how fast the on-coming automobile was coming, but it was "at a good rate of speed." The defendant's car swerved to the left just as it passed the front end of the truck. The wheels were sliding when it passed and "it went within a foot of the concrete on the left hand side of the road; he (the driver of the automobile) started to put on his brakes when he was just opposite the front end of the truck, and passed the rear of the truck within about three feet of it." Brooks did not hear any signals from Mr. Finan's car, nor could he say whether any were given.

On cross-examination, Brooks testified that from the place of the accident he could see up the road towards Cumberland five or six hundred feet. Also that he did not hear any one call from the truck "look out."

Pearl Bishop, who was in the cab of the truck, testified that she first noticed the car coming from the...