Geiselman v. Schmidt

• Decision Date: 15 November 1907
• Citation: 68 A. 202,106 Md. 580
• Parties: GEISELMAN v. SCHMIDT.
• Court: Maryland Court of Appeals

68 A. 202

106 Md. 580

GEISELMAN v. SCHMIDT.

Court of Appeals of Maryland

November 15, 1907

Appeal from Superior Court of Baltimore City; Alfred S. Niles Judge.

Action by George Schmidt against Spangler Geiselman and another. From a judgment for plaintiff, said Geiselman appeals. Affirmed.

Argued before BOYD, BURKE, SCHMUCKER, PEARCE, and ROGERS, JJ.

William G. Towers, for appellant.

Wm. B Smith, for appellee.

BURKE J.

This is a negligence case. It was instituted in the superior court of Baltimore City by George Schmidt against Spangler Geiselman and Annie Geiselman, his wife, to recover damages which he alleges he suffered in consequence of the negligence of the servant of the defendants in driving a milk wagon belonging to the defendants. The injuries were received on the 13th day of January, 1906, at the intersection of Broadway and Eastern avenue, two public streets of Baltimore City. The declaration alleges that at the time mentioned the servant of the defendants in the regular course of his employment, and while he was in charge of and engaged in driving, a horse hitched to a wagon belonging to the defendants, in a reckless and negligent manner, ran into and knocked down the plaintiff and seriously injured him, that the plaintiff was using due care and that the injury was caused by the negligence of the defendants' driver and servant. To this declaration both defendants pleaded that they did not commit the wrongs alleged. The trial resulted in a verdict and judgment against Spangler Geiselman, and from that judgment he has appealed.

At the conclusion of the plaintiff's case, the court directed a verdict in favor of Annie Geiselman, which was accordingly rendered by the jury. That the plaintiff was quite severely, and perhaps permanently, injured, does not admit of a question upon the evidence. The fact of his injury and its serious character was practically conceded by the defendant, and this feature of the case need not be considered. The injury occurred about 6 o'clock in the morning, while the plaintiff was on his way to his work at Locust Point. There is, as is usual in cases of this nature, much conflict in the testimony of the witnesses as to the exact circumstances under which the plaintiff was hurt. But, if the testimony adduced on part of the plaintiff be accepted (and the jury did give it credence), the case was one proper for their consideration. There are two tracks of the United Electric & Railways Company at the intersection of Broadway and Eastern avenue, the cars on these tracks running to and from Highlandtown, and there are also two tracks of the same company on Broadway crossing Eastern avenue. There is evidence tending to show that when the plaintiff reached the crossing at Broadway and Eastern avenue, and started to go over, two cars of the Highlandtown Line were close to the crossing, one going in each direction, and that he stopped to let them pass before attempting to cross. Samuel Geiselman, who was in charge of the wagon, gives this account as to how the accident occurred: "Half past 5 I had to serve up around the East Canton and then come in. I always stopped before I left again, and I live two blocks from where this accident occurred. And, as I was nearing Broadway, a couple of hundred feet from Broadway, I turned out to leave the car pass turning on the right side. *** This old man was standing on the curb there, and I had seen him and was barely passing him, and after the horse had passed him he stepped down. *** This old man must have come in contact with the horse's back feet and got him excited and off he went. It got me excited when I seen the old man come down. The wheels didn't go over him. The horse tread on him, and knocked him down, and got me excited, as well as the horse, and off he went." He further testified that the car stopped on the corner, and, when it was starting, the wagon just came up even with the car. He further testified as follows: "He ran into me. I didn't run into him. He walked right into the horse. How could I help it when the man walked right into the horse? That would happen to anybody." This was the only witness on the part of the defendant who attempted to state how the injury was received. But over against this we have the testimony of John Rimbach, who was present and saw the collision. He testified that the plaintiff was in the act of crossing, and had reached the middle of the south track when he was hurt. When asked to state what he saw, he said: "I just heard a whip crack, and looked out Eastern avenue and saw a wagon going full speed, and, as it crossed Broadway, the front part crossed the tracks and knocked the man down and went on; didn't stop." The plaintiff testified that he was careful and cautious, and did not see the wagon in time to avoid the injury. The early hour of this winter morning, the passing of the cars which probably shut out his view of the approaching wagon, and the rapidity with which the wagon was driven, if the testimony of Rimbach be believed, may readily account for the inability of the plaintiff to have avoided the injury under the circumstances.

During the course of the trial four exceptions were reserved by the defendant to rulings of the court upon questions of evidence. When the evidence on both sides was closed, the plaintiff presented four and the defendant eight prayers for instruction to the jury. The court granted ...