Greenfeld v. Hook

• Decision Date: 27 October 1939
• Docket Number: 13.
• Parties: GREENFELD v. HOOK.
• Court: Maryland Court of Appeals

8 A.2d 888

177 Md. 116

GREENFELD v. HOOK.

No. 13.

Court of Appeals of Maryland

October 27, 1939

Appeal from Superior Court of Baltimore City; J. Abner Sayler Judge.

Action by Mabel Hook against William Greenfeld for injuries sustained in an automobile collision. From judgment for plaintiff, the defendant appeals.

Reversed and remanded for a new trial.

Foster H. Fanseen and Philip S. Ball, both of Baltimore, for appellant.

Benjamin C. Howard and George E. Kieffner, both of Baltimore (Miles & O'Brien and Pearre, Kieffner & Jacobs, all of Baltimore on the brief), for appellee.

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

OFFUTT Judge.

This case grows out of a collision between two automobiles in the intersection of Lafayette Avenue and Eutaw Place in Baltimore city at about nine o'clock in the evening of June 8th, 1938. One machine driven by Mrs. Mabel Hook, who was returning to her home in Ellicott City from a visit to her daughter, a patient in the Women's Hospital in Baltimore, was proceeding west on Lafayette Avenue; the other, driven by Dr. William Greenfeld, was proceeding south on Eutaw Place when the collision occurred.

Eutaw Place running North and South at that intersection is a dual highway with northbound and southbound driveways separated by a grass plot seventy-four and one-half feet wide, the northbound driveway is twenty-seven feet wide. The driveway of Lafayette Avenue at the intersection is thirty-nine feet wide. Eutaw Place at that point and at that time was a boulevard or stop street, traffic on and across it was affected by the provisions of Code Supp.1935, Art. 56, sec. 209, and its character was indicated by 'stop signs' placed at the entrance of the intersection. There is a slight down grade on Eutaw Place from Lafayette Avenue to Mosher Street the first intersecting street to the north, and the view between those points is unobstructed.

Mrs. Hook, who lived in Ellicott City, was not familiar with that part of Baltimore, and Mr. Charles B. Spicer, a friend whom she met at the hospital, offered to drive ahead of her and guide her across the city. She accepted the offer and followed his car until he reached Eutaw Place. He and she both knew that that was a boulevard or stop street, so when he reached the east curb of the northbound driveway of Eutaw Place he stopped, and Mrs. Hook who was immediately behind him also stopped. After ascertaining that the way was clear Spicer drove across to the east curb of the southbound driveway and stopped again, and then crossed that driveway. When he left the east curb of the northbound driveway, Mrs. Hook drove into the space he had occupied and stopped again, and then seeing no northbound traffic, crossed that driveway and stopped behind Spicer at the grass plot. When Spicer drove on across the southbound lane she moved into the space his car had occupied and stopped again at the east curb of the southbound way. She testified that she then looked to her right and seeing no southbound traffic approaching she entered the southbound way and was crossing it when her car was struck by the Greenfeld car. As a result of the collision Mrs. Hook suffered severe and painful injuries, and subsequently brought this action to recover compensation therefor. The case was tried before the court and a jury, the trial resulted in a verdict and judgment for the plaintiff, and from that judgment this appeal was taken.

At the close of the whole case the court granted two prayers for the plaintiff, three for the defendant, refused defendant's A and B and first and fourth prayers and overruled his special exceptions to the plaintiff's first prayer. Those rulings are the subject of the only exception argued in this Court.

The defendant's A and B prayers deny a recovery, the A prayer on the ground that the uncontradicted evidence showed that the plaintiff was guilty of negligence directly contributing to the happening of the accident, its B prayer on the ground that there was in the case no evidence legally sufficient to entitle the plaintiff to recover.

Plaintiff's 1st prayer which was granted and defendant's 1st prayer which was refused, invoke a construction of that part of Code, Art. 56, sec. 209, which deals with arterial highways. The contention of the plaintiff, appellee here, as embodied in her first prayer and approved by the court, is that 'persons travelling upon a boulevard or through street do not have an absolute right of way but that it is the duty of such persons when operating their vehicles upon through or boulevard streets to keep the same under reasonable control and to have the speed of the automobile so reduced in approaching street crossings as to have the same under reasonable control.' Defendant's theory set forth in his first prayer is that 'under the law of the State of Maryland, the operator of a vehicle entering a highway, designated as a boulevard, shall yield the right of way to all vehicles approaching on such highway, except where traffic at such intersections is controlled by traffic signals or officers.' His fourth prayer would have denied a recovery 'if the plaintiff contributed in any manner to the happening of the accident'. Since it made no reference to the facts and circumstances of the collision and required no finding of negligence, it was consistent with the theory that in a collision between a traveller on a boulevard and one crossing the same, the person crossing is under all circumstances and because of his mere presence guilty of negligence. Obviously that could not be true and without further consideration of it it may be said that that prayer was properly refused.

Consideration of the demurrer prayers involves an examination of all the evidence to discover whether, conceding the truth of so much of it as supports the plaintiff's case, together with all reasonable and legitimate inferences deducible therefrom, it is consistent with a right in the plaintiff to recover compensation from the defendant for the injuries she suffered as a result of the collision.

There was in the case evidence tending to prove the facts stated above and also other facts which may be thus summarized:

When Mrs. Hook drove across the northbound driveway and stopped behind Spicer's car, she was far enough from the grass plot to permit a taxicab to drive to her right and between her and the curb of the grass plot. When Mr. Spicer moved on she said: 'I pulled up to the curb--east curb of the grass plot. I pulled into the same position that he had occupied and stopped again.' She then said:

'At that point, did you look to your right? A. I did.

'Q. What did you see? A. Nothing coming in my direction. I could see up Eutaw Place about half a block. I do not know whether it was Mosher Street. The way was clear and I proceeded across Eutaw Place. A taxicab passed me on my right, and immediately after the cab passed I was hit. I don't know what kind of a taxicab that was. The taxicab was going quite fast.

'Q. How about your speed. A. I was in low gear.

'Q. How far out from the curb where you had stopped, had you proceeded when you were hit? A. I would say halfway across.'

On cross-examination she further testified:

'Q. Explain to his Honor and the gentlemen of the jury, that if the cab shot by as you just started across why the cab was not involved in that accident, if you know? A. Well, the cab was going much faster than I was, and he just missed it.

'Q. The cab was going much faster than you were, and he just missed it? A. Yes, sir.

'Q. Missed what? A. Missed the accident--the crash.

'Q. How do you know that? You never did see the other car--Dr. Greenfeld's car? A. I saw it when it hit me. Yes.

'Q. When it hit you? A. Yes, sir.

'Q. Tell us how long did you see it? How far away was it? Just at the moment of the crash? A. At the moment of the crash.

'Q. Where were you looking then? A. After I had pulled up to the curb, I saw that the way was clear. I was looking ahead of me.

'Q. Then how did you happen to see his car, if you never looked to the right again? A. I saw it when it was right on me.

'Q. You saw the lights, didn't you? A. No.

'Q. What did you see? Where the lights of his car burning, or were they out? A. I couldn't see the lights. * * *

'Q. Now, Mrs. Hook, you say that you could only see half a block away. What was to prevent you from seeing further, if anything? A. Well, there is quite a bit of--quite a few bushes in that area.

'Q. Well, now, isn't it a fact that when you started--the front of your car was up to the curb---- A. Yes, sir.

'Q. Then you looked ahead? A. Yes, sir.

'Q. And you never looked to your right again, did you, until the crash occurred; isn't that correct? When your car arrived at the second lane of traffic--the southbound lane, you said you stopped. That is when you looked to your right and could see half a block away. That's true, isn't it? A. Yes, sir.

'Q. And nothing was coming? A. Yes, sir.

'Q. Then you put your car in gear and started out? A. Yes, sir.

'Q. And looked ahead? A. Yes, sir.

'Q. And you never looked to your right again, did you? A. No.'

Spicer testified that when he reached the southbound lane he stopped and looked to his right, that there was nothing moving as far as he could see, that: 'You have got a little obstruction there, due to some bushes, but you can get a pretty clear view down grade, going towards McMechen, you can practically cover that square, and the only thing of any importance in that block, other than a few with parking lights on, was a car parked around three or four houses north of Lafayette Avenue, and on the west side of Eutaw Place. That had headlights burning. That car was not in motion. It...