Henderson v. Brown

• Citation: 214 Md. 463,135 A.2d 881
• Decision Date: 14 November 1957
• Docket Number: No. 25,25
• Parties: Henry John W. HENDERSON v. Ralph Ernest BROWN and Charles Seymour Clark.
• Court: Court of Appeals of Maryland

Page 463

214 Md. 463

135 A.2d 881

Henry John W. HENDERSON v. Ralph Ernest BROWN and Charles Seymour Clark.

No. 25.

Court of Appeals of Maryland.

Nov. 14, 1957.

Paul Berman and Melvin J. Sykes, Baltimore (William G. Kemp and Edward D. E. Rollins, Elkton, A. Freeborn Brown and T. Carroll Brown, Belair, on the brief), for appellant.

Frederick J. Green, Jr., Baltimore (James J. Lindsay, Baltimore, and J. Gifford Scarborough, Elkton, on the brief), for appellees.

Before BRUNE, C. J. and HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

Chief Petty Officer Henderson was struck at night by a taxicab as he crossed the street in Port Deposit on the way back to Bainbridge Naval Training Center. The jury gave him a substantial verdict against both the driver and the owner of the taxicab, the trial court granted a motion for judgment n. o. v., and Henderson appealed.

The accident happened on Route 222, the main street of Port Deposit, in a residential area near the entrance to the Navy boat docks on the Susquehanna River. Henderson had dinner in Port Deposit and then spent the evening with friends. When he was ready to return to the naval base, shortly after eleven o'clock, he had someone call a cab for him and when it did not come promptly, decided to walk. He walked on the west or river side of the street in a southerly direction until the sidewalk ended at a point where a large hedge or bush grew. Then he walked around the bush and continued on some 80 feet on a hard shoulder about two or two and a half feet wide, which began at the bush, until he came to a striped light pole at the north side of the entrance to the boat docks. He crossed the boat dock entrance to a second light pole which marked the south side of the dock entrance 50 feet south of the first pole. At this point he decided to cross the street to reach the sidewalk on the other side. He says that this was a most logical place to cross because the Navy often marched sailors up from the docks across the street and on a Bainbridge and that other sailors often used it as an informal crosswalk, all of which was known to the Port Deposit taxi drivers, including the driver of the cab that hit him. He says further that the light on the pole was burning and illumined the area, as did light reflected from a white gasoline station several hundred feet to the south. The testimony of others indicates that the area was quite dark. Henderson testified that as he stood on the edge of the shoulder, he looked to his left and to his right, first looking to his left, from which the taxicab came, but he saw nothing because 'there is a hedge up there; you can't see beyond that.' He estimated that he was then some 130 feet from the bush which stood, according to him, at the edge of the road and projected 'at least a couple feet' beyond the shoulder and obstructed his view of almost half of the street to the north. He says that after he had looked both ways, 'I stepped out and walked across at a fast gait across the street, and I got near the middle of the street I looked again to the south, again to the north, and by that time the car hit me.' He was asked whether it had not occurred to him that there might be traffic behind the bush which he could not see, and his answer was that if there were, he thought he was far enough down the street to get away from it. He says: 'I didn't hear nothing, didn't hear no horns, no motor running and no lights, and didn't see no lights.' On cross-examination, he was asked whether it was his testimony that there were no lights on the cab or that he didn't see any, and he said: 'I didn't see any lights.' Once more he was asked whether he gave that answer because the cab had no lights or because it was so close to him, and everything happened so fast when he did see it, that he didn't know whether its lights were on or not. Again his answer was: 'I didn't see a light.'

Henderson thought that he had just about reached the tarred strip marking the center of the road when he was struck. The evidence makes is clear that he was struck by the right front fender of the cab. The driver says that he never saw Henderson at all before the impact. Two friends of the driver sitting with him in the front seat (there were two passengers in the back) testified that Henderson staggered or ran out of the darkness at the side of the road into the path of the cab so suddenly and so fast that although the driver immediately swerved to the left, it was impossible to avoid hitting him. There is nothing to show that the cab was on the wrong side of the street (except when it swerved immediately before the impact) or that Henderson was on the far half when he was struck. The driver and his two companions testified that the headlights were on low beam for city driving, that the advertising light on top of the cab (indicating that it was a cab and its ownership) was lighted, and that this could have been true only if the headlights were lighted, as the two operated simultaneously.

The record offers no evidence or permissible inference that the cab was speeding. The driver testified that he was going about 20 or 25 miles an hour. There were no skid marks. A State trooper testified that the cab went twenty-eight paces from the point of impact to where it stopped.

After the most careful consideration, we have come to the conclusion that Henderson, by his own reckless inattention or indifference, contributed directly to his own injury in a manner so prominent and decisive as to leave no room for ordinary minds to differ as to its imprudence and, therefore, that the trial court was right in granting the judgment n.o.v. Although the record does not show the reason for the court's action, it is agreed that it was on the ground of contributory negligence. Assuming, then, for the consideration of the case that the cab driver was negligent, we pass to the reasons for our finding of contributory negligence.

The appellees says that the cab had the right of way at the place of the accident, whereas the appellant argues, as the court instructed the jury, that under the circumstances pedestrian and driver had 'mutual, reciprocal and equal' traffic rights The accident took place in a residential area of a town. Code, 1951, Art. 66 1/2, Sec. 201, provides that: 'All pedestrians shall have the right-of-way at street crossings in the towns and cities of this State * * *. Between street crossings in such towns and cities, vehicles shall have the right-of-way.' There is no statutory definition of street crossings other than that given in Code, 1951, Art. 66 1/2, Sec. 2(9) of a crosswalk as 'Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other marking on the surface or that portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.' This statute makes no exception of areas where crosswalks are few. We think the cab had the right of way. In Block v. Miller, 199 Md. 521, 526, 87 A.2d 401, 403, the pedestrian was injured in Baltimore while crossing Light Street from the entrance to a passenger pier, prominently marked 'Entrance' and which vehicles were not allowed to block. Opposite the entrance, in the middle of car tracks in the middle of the street, were six or seven metal buttons to mark the point where the streetcars stopped. It was held that the buttons did not make the area a marked crosswalk and that the fact that passengers and visitors entering and leaving the pier customarily crossed Light Street at that point did not make it an unmarked crosswalk. It was argued that if it were not held to be a crosswalk there would be no safe crossing for pedestrians. The opinion noted that there were officially marked crosswalks nearby but said that even if there had not been, their absence would not entitle pedestrians '* * * by custom or habit to establish a crosswalk which then gives them the right of way.' In Johnny's Cabs, Inc., v. Miller, 199 Md. 16, 85 A.2d 439, the accident happened at the juncture of a street and a heavily traveled alley, commonly accepted as a recognized intersection. There were no official crosswalk markings on the street, and the alley had no sidewalks of which there could be a prolongation. It was held that the taxi which struck the child coming from the alley into the street had the right-of-way.

A pedestrian who crosses a street between intersections is not negligent per se, but he must use the greatest care for his own protection. While both the pedestrian and the driver have an equal right to use the street, the amount of diligence and care needed on the part of each is shifted from one to the other according to where the accident happens. When a pedestrian crosses between intersections, the law requires him to know that he must accommodate himself to vehicles on the road, that he cannot dispute their right-of-way but...