Graff v. Davidson Transfer & Storage Co.

• Decision Date: 31 March 1949
• Docket Number: 98.
• Citation: 65 A.2d 566,192 Md. 632
• Parties: GRAFF v. DAVIDSON TRANSFER & STORAGE CO. et al.
• Court: Maryland Court of Appeals

65 A.2d 566

192 Md. 632

GRAFF v. DAVIDSON TRANSFER & STORAGE CO. et al.

No. 98.

Court of Appeals of Maryland

March 31, 1949

Appeals from Superior Court of Baltimore City; Robert France, Judge.

Action by Rose C. Wright against Theodore E. Graff and Davidson Transfer & Storage Company to recover for personal injuries sustained by plaintiff while a passenger on a bus belonging to defendant Graff when bus was involved in a collision with a tractor-trailer belonging to defendant Davidson Transfer & Storage Company, tried together with actions of Theodore E Graff and by Davidson Transfer & Storage Company against each other to recover for damages to their respective vehicles in the collision. From adverse judgments in all three cases Theodore E. Graff appeals.

Affirmed.

William L. K. Barrett, of Baltimore (Philip Beigel of Baltimore, on the brief), for appellant.

Robert H. Engle, of Baltimore (Clark, Thomsen & Smith and Roszel C Thomsen, all of Baltimore, on the brief), for Davidson Transfer & Storage Co.

Walter V. Harrison, of Baltimore, for Rose C. Wright.

Before DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

On January 15, 1948, Rose C. Wright, one of the appellees here, was a passenger in an automobile bus owned by appellant, Theodore E. Graff (Graff) and operated by his agent. The bus collided with a tractor-trailer owned by Davidson Transfer & Storage Company (Davidson), the other appellee, at the intersection of Lombard and Haven Streets in Baltimore. Rose C. Wright was injured and both the bus and the tractor-trailer sustained property damage. As a result of suits, tried simultaneously, Rose C. Wright obtained a judgment for personal injuries in the amount of $12,500 against Graff, appellant, alone. Davidson recovered a judgment in the amount of $700.45 for property damage against Graff, appellant. A judgment for costs was entered in favor of Davidson in a suit against it by Graff for property damage to the bus. From those three judgments appellant appeals here.

The appellant contends that the jury erred in finding against Graff alone. This, of course, was a question for the jury and cannot be reviewed by this Court on appeal.

The appellant also contends that the Court erred in instructing the jury that the appellant, Graff, was a common carrier and owed the appellee, Rose C. Wright, the highest degree of care. The appellant contends that the bus was being operated, not as a common carrier, but under a contract with the British Overseas Airways Corporation, the employer of the appellee, Rose C. Wright, and therefore Graff was a contract carrier. Without passing upon the difference in the liability of a common carrier and a contract carrier, if any, in this case there is no evidence that the bus was being operated as a contract carrier. In fact, the manager for the appellant testified that the bus was used at the Airport for transporting passengers to and from airplanes to the City and that the operation was on a regular fare basis. It is also pertinent that the jury found in the suits between Graff and Davidson, which were tried with the Wright case, that at the time of the collision Graff's driver was not exercising ordinary care.

No question of contributory negligence on the part of Davidson was submitted to the jury by the trial judge. No request for such an instruction was made by appellant, and no objection was made to the charge for failure to instruct the jury as to contributory negligence. Nor was there any prayer or motion presented to the trial judge for a directed verdict on the ground of contributory negligence of Davidson as a matter of law. Therefore those questions are not before this Court on appeal. General Rules of Practice and Procedure, Part 3, subd. III Trials, Rules 5 and 6; Coca-Cola Bottling Works v. Catron, 186 Md. 156, 163, 46 A.2d 303.

The appellant relies strongly on the ground that its demurrer prayer should have been granted because there was no evidence introduced legally sufficient to support a finding of negligence on the part of Graff. With this contention of the appellant we do not agree. In ruling on this demurrer prayer we will, of course, review the evidence in a manner most favorable to the appellees.

On January 15, 1948, the appellant maintained a regular scheduled bus service which left the Lord Baltimore Hotel in Baltimore City at 8 a. m. and conveyed passengers to the Baltimore Airport. Rose C. Wright, appellee, was a passenger on the bus that day, which was being driven in an easterly direction along and upon Lombard Street at or near its intersection with Haven Street. A tractor-trailer owned by Davidson, appellee, and operated by its agent was proceeding in a southerly direction along and upon Haven Street. The bus, coming from Davidson's right was the favored vehicle. Code, 1947 Supplement, Article 66 1/2, Section 176. The driver of Davidson's tractor-trailer testified that he was proceeding south on Haven Street. As he approached Lombard Street he saw Graff's bus about one block away, a distance of about 250 feet. Thinking he had ample time, he proceeded to cross Lombard Street and after the tractor had cleared Lombard Street and when the rear wheels of the trailer were in the cartracks, his trailer with a load of 30,000 pounds was struck by the bus and moved three feet sideways. The skid marks showed that the bus skidded about sixty-four feet.

The bus driver testified that he was going east on Lombard Street following another car. When he reached Grundy Street, one block west of Haven Street, the car he was following slowed up to make the turn into Grundy Street and he, of course slowed up behind that car. After the car ahead of him had turned off Lombard Street he changed the gears of his bus and went on down Lombard Street approaching Haven Street and changed back into high gear at...