Fletcher v. Dixon
| Decision Date | 26 February 1908 |
| Citation | 68 A. 875,107 Md. 420 |
| Parties | FLETCHER v. DIXON. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Dorchester County; Henry Lloyd, Judge.
Action by Nannie S. Dixon against William M. Fletcher. Judgment for plaintiff, and defendant appeals. Reversed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, and WORTHINGTON, JJ.
Frederick H. Fletcher, for appellant.
George H. Dawson, Jr., and John R. Pattison, for appellee.
This is a suit by the appellee against the appellant to recover damages for injuries sustained by reason of her horse running away and throwing her out of her carriage and damaging the latter, caused by the alleged negligence of the appellant in operating an automobile on the public streets of Cambridge. There are 10 counts in the declaration, 5 of which are for personal injuries alleged to have been sustained by the plaintiff, and the other 5 for damages to her carriage. Each count was demurred to, and the demurrers overruled, and there was also a motion to strike out each of the first 8 counts which was refused. But as the court below granted prayers instructing the jury that there was no legally sufficient evidence to entitle the plaintiff to recover on the first second, fifth, sixth, seventh, eighth, ninth, and tenth counts, we do not deem it necessary to pass upon the demurrers, or the motion, in reference to them, as it is not perceived how the defendant could have been injured, even if there was error as to any of those rulings. The case having been submitted on the third and fourth counts alone, we will confine ourselves to the consideration of them, and to the rulings of the evidence and prayers complained of by the appellant. As the fourth count is precisely like the third, except the latter complains of the injury to the plaintiff, while the former seeks to recover for damages to the carriage, it will only be necessary to discuss the third.
1. It alleges that the defendant was the owner of an automobile, and while it, under his management and control, was being operated and run by him on the streets of Cambridge, the horse of the plaintiff, which was being driven by her on said streets, became frightened and alarmed at and by the said automobile; that such alarm was indicated at the time by the conduct of the horse, and was, or by the exercise of reasonable care and caution might have been, seen and noticed by the defendant; that notwithstanding the fright and alarm so indicated "the defendant negligently and improperly failed to and did not go to the side of the road and stop and remain stationary until the horse of the plaintiff had passed to a safe distance, making in the meantime as little noise as possible, in violation of the statutes of the state of Maryland"; that in consequence of said negligence and improper conduct of the defendant the horse of the plaintiff, being so driven by her, became further frightened by said automobile, and became unmanageable and ran away, without fault or negligence on her part, and she was thrown out of said carriage and severely bruised and otherwise greatly and permanently injured. It will be observed that this count relies on the alleged violation of the statute for the right to recover, but it will be well to recall some of the well-established rights and duties of persons using public highways. One of the primary duties which any one using them owes others is to exercise reasonable care, and to bear in mind that he does not have the exclusive right of user, whether he be a mere pedestrian, or riding or driving a horse, or using some modern vehicle, such as an automobile. As was said by Cooley, C.J., in Macomber v. Nichols, 34 Mich. 217, 22 Am. Rep. 522: While that rule is applicable to the use of automobiles on public highways, there are other principles which must be borne in mind; that is to say, ordinary care and caution must be used, and "the quantum of care required is to be estimated by the exigencies of the particular situation, that is, by the place, presence, or absence of other vehicles and travelers, whether the horse driven is wild or gentle, whether the conveyance and power used are common or new to the road, the known tendency of any feature to frighten animals," etc. Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N.E. 615, 1 L. R. A. (N. S.) 238; Huddy on Automobiles, 49. Or as was said in Shinkle v. McCullough, 116 Ky. 960, 77 S.W. 196, 105 Am. St. Rep. 249: "While automobiles are a lawful means of conveyance, and have equal rights upon the public roads with horses and carriages, their use should be accompanied with that degree of prudence in management, and consideration for the rights of others, which is consistent with their safety." Other cases are to the same effect; but while the well-established rule on the subject is that the owner of an automobile has the right to use public highways as stated above, yet, inasmuch as such use may be productive of injury to others, unless carefully run and managed, the Legislature has the undoubted right to regulate the speed and provide other reasonable regulations as to its use, the violation of which may subject the owner to damages for injuries thereby received. We will therefore next consider the statute laws of this state applicable to the counts in the declaration which were held to be sufficient by the lower court.
2. The statute in force at the time of the accident provided that at the indication of a horse becoming alarmed the person in charge of a motor vehicle "shall go as far as practicable to the side of the road and remain stationary until the said horse or horses or other animals have passed a safe distance, in the meantime making as little noise as possible with the steam." Section 135, art. 56, Code Pub. Gen. Laws 1904. This and other sections on "Motor Vehicles" were amended by Acts 1906, p. 814, c. 449, but as the accident was in June, 1905, we will refer to those found in the Code. The expression "as far as practicable" was omitted from the third count, and the appellant contends that for that reason it was demurrable; but it alleges that he did not go to the side of the road, that is to say, did not go at all. If those words had been omitted from the statute, it would have been a sufficient compliance, if a party had gone as far as practicable, for the law does not require impossibilities. If, for example, there was a row of carriages standing on the side of a road and the driver of an automobile went as far to the side as was practicable on account of the carriages, or if the grade of the road was such that he could not go further to the side, it would be an altogether unreasonable construction to place on the statute to hold that because the law required him to go "to the side of the road" he had not complied with the statute, although he had gone as far as practicable. And so with the words "with the steam," which were also omitted from the third and fourth counts. Manifestly those words were not intended to limit the provision to what are ordinarily called steam automobiles. Section 140 of article 56 shows that such construction was not intended. It said: "Whenever the term 'motor vehicle' is used in this subtitle it shall be construed to include automobiles, locomobiles and all other vehicles propelled otherwise than by muscular power, except the cars of electric and steam railways and other motor vehicles running upon rails or tracks" --and section 135 spoke of a person in charge of a "motor vehicle," and of horses "alarmed by said motor vehicle." But if this count was conceded to be defective by reason of the omission of the words "with the steam," the overruling of the demurrer was a harmless error, as the court subsequently instructed the jury that there was no legally sufficient evidence that the automobile was making "any unusual and unnecessary noise." So without discussing other objections urged, we think the demurrer was properly overruled.
3. We will next consider the rulings on the prayers. The first prayer of the plaintiff, which was granted, is certainly very broad, when it is remembered that the jury was instructed that the plaintiff could not recover on any of the counts in the declaration, except the third and fourth. By it the jury was instructed that their verdict should be for the plaintiff, if they found that the plaintiff was injured by being thrown from a carriage to which the horse being driven by her on High street was attached; that the horse "was frightened and caused to run away by the automobile of the defendant while operated by him upon said street; and that said injury might have been avoided by the exercise of ordinary care and prudence on the part of the defendant," unless they found "that the injury complained of resulted from want of such care and prudence on the part of the plaintiff directly contributing to the accident." It is true that that prayer does not refer to the pleadings; but defendant's prayer D did specifically refer to the third and fourth counts, some prayers referred to the other counts, and defendant's prayer H referred to the pleadings generally. In Baltimore Bldg. Ass'n v Grant, 41 Md. 569, it...
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