Geschwendt v. Yoe

• Decision Date: 22 April 1938
• Docket Number: 1,2.
• Citation: 198 A. 720,174 Md. 374
• Parties: GESCHWENDT et al. v. YOE (two cases).
• Court: Maryland Court of Appeals

198 A. 720

GESCHWENDT et al. v. YOE (two cases).

174 Md. 374

Nos. 1, 2.

Court of Appeals of Maryland

April 22, 1938

Appeals from Superior Court of Baltimore City; Duke Bond, Judge.

Actions by Ellenora Yoe and by William G. Yoe, her husband, against Paul Geschwendt and George W. Bowen, for personal injuries sustained by Ellenora Yoe when struck by a taxicab owned by Paul Geschwendt and operated by George W. Bowen. From judgments in favor of the plaintiffs, the defendants appeal.

Affirmed.

J Calvin Carney, of Baltimore (Preston A. Pairo, of Baltimore on the brief), for appellants Geschwendt and Bowen.

R Samuel Jett, of Baltimore (W. Hamilton Whiteford, of Baltimore, on the brief), for appellees Ellenora and William G. Yoe.

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

MITCHELL Judge.

The record in this case embraces two appeals growing out of the same accident, from judgments entered, respectively, in the superior court of Baltimore City, in favor of Ellenora Yoe, for personal injuries sustained by her, and in favor of William G. Yoe, her husband, for medical expenses and loss of her services, by reason of said injuries.

The appellant Paul Geschwendt was the owner of a Diamond cab; the appellant George W. Bowen was the operator of the cab at the time the injuries complained of were sustained; and the circumstances under which Mrs. Yoe was injured were as follows:

She lived on the east side of North Bentalou street, between Westwood avenue and Presbury street; Westwood avenue being the first street south of North avenue paralleling the same. The general course of Bentalou street is north and south; the courses of Westwood and North avenues and of Presbury street are east and west, and according to the testimony an alley intersects Bentalou street on the north, at a point between Westwood and North avenues.

The plaintiff testified that on the evening of January 27, 1936, at about 7:30 o'clock she walked from her home along the east side of Bentalou street to the intersection of said street with North avenue. It was freezing weather, and had been so for several days, and in consequence the streets were covered with ice and snow. She had intended to cross to the west side of Bentalou street at the regular pedestrian crossing, but at this point she found too much snow and ice, and as she did not have rubber shoes, she retraced her steps 15 or 20 feet, and decided to cross at that point, where the surface of the street appeared easier to walk on, because it was rougher. Two or three automobiles facing north were parked at the curb, and she started to cross in front of the car nearest North avenue. Before she entered the street she looked both north and south and saw an automobile approaching from the south; she then walked past the parked car, looked again in both directions, saw the northbound car again, and noting that it was then at Westwood avenue, or a block away, proceeded to cross. When she reached a point two-thirds of the width of the street, she looked in both directions again, saw the same car approaching from the south, and also saw a car approaching from the north at North avenue. She then waited to see whether the latter car was going to turn at the avenue or continue southward. She was then asked:

'Q. Did this car continue south on Bentalou St.? A. Yes, sir.

'Q. What did you do? A. I stood perfectly quiet.

'Q. What did the southbound car do? A. Passed me by.

'Q. Now, Mrs. Yoe, after this southbound car passed you, will you tell us what is the next thing that you recall? A. The next thing--I could hear the screeching of brakes and chains, and I noticed a light at my feet. I was standing with my back to the south of Bentalou. I have never moved an inch. I wouldent have dared to have moved, because the street was nothing but ice, and then all I knew I was hit and knocked into this snow pile into the curb.

'Q. Which curb? A. The west side of the street.'

She then testified that she recalled being walked down the hill to the cab; she did not remember who picked her up, but she was assisted to the cab and placed in it by some one; and that at that time the cab was 'down fully to the alley.'

Mrs. Yoe was the only witness produced by the plaintiffs who could detail the immediate incidents connected with the accident, and at the conclusion of the plaintiffs' case a demurrer prayer was offered by the defendants and rejected by the trial court.

On behalf of the defendants, the driver of the taxicab which caused the injury, and three passengers in the car, testified substantially as follows: That the defendant George W. Bowen was driving the taxicab at the time of the accident; that he had stopped south of Westwood avenue to discharge another passenger, and that upon approaching Westwood avenue he slowed down to permit another car to pass in front of him; he then proceeded northward on Bentalou street at a speed of from 10 to 15 miles an hour, and when about half way of the block between Westward avenue and North avenue the impact took place. All of the defendants' witnesses confirm the testimony of Mrs. Yoe, in that the street was filled with snow and ice, and that the weather was at freezing point and the highway slippery. They fix the location of the accident as being approximately half way of the block, and in any event south of the alley which the testimony indicates was at least 100 feet south of the North avenue intersection. Their testimony is also to the effect that there were definite lanes of travel north and south, cut in the ice and snow by heavy vehicular traffic, and that when once in these lanes, it was difficult to get an automobile out of them. The chauffeur of the cab stated that when the accident happened, he was to the right of the center of the street, and that between the two lanes of traffic there was a space, which some of the witnesses termed an 'island,' in which Mrs. Yoe was standing, when he first saw her. He did not see her until he was within 10 feet of her. At that time he saw a car coming south in the other lane of traffic, and about the same time the two cars passed, Mrs. Yoe took two steps backward, in front of the taxicab, and at a time when he could not stop before hitting her. It was shown on cross-examination that the witness Bowen had the sight of but one eye. One of the defendants' passenger witnesses stated that he did not know whether the southbound car had passed Mrs. Yoe before the impact, and another that he first noticed the other car when he heard the noise created by the application of the brakes to the taxicab in which he was riding, and none of the defendants' witnesses saw Mrs. Yoe cross the street to the point at which she was standing when each of them first saw her, and when she was knocked down. The width of Bentalou street is shown to be 44 feet.

The only exceptions pressed on appeal relate to the rejection of the defendants' A prayer which sought to withdraw the case from the jury because there was no legally sufficient evidence to entitle the plaintiff to...