Jackson v. Forwood

• Decision Date: 18 June 1946
• Docket Number: No. 113.,113.
• Citation: 47 A.2d 81
• Parties: JACKSON v. FORWOOD et al.
• Court: Maryland Court of Appeals

47 A.2d 81

JACKSON

v.FORWOOD et al.

No. 113.

Court of Appeals of Maryland.

May 14, 1946.

Motion for Modification or Reargument Denied June 18, 1946.

Appeal from Circuit Court, Kent County; J. Owen Knotts, Chief Judge, and Albert Constable and William R. Horney, Judges.

Suit by Blanche O. Jackson against Walter F. Forwood and Richard A. Grieninger to recover for injuries sustained by the plaintiff when she was struck by a taxicab owned and operated by defendants. From a judgment granting defendants' motion for judgment notwithstanding verdict, the plaintiff appeals.

Judgment affirmed.

DELAPLAINE, J., dissenting.

William Pepper Constable and John D. Alexander, both of Baltimore (Harry D. Barnes, of Elkton, and Harrison W. Vickers and Beck & Carvell, all of Chestertown, on the brief), for appellant.

Edward D. E. Rollins, of Elkton, and Robert H. Archer, of Belair (Stanley R. Bossard, of Baltimore, and R. Hynson Rogers, of Chestertown, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON and HENDERSON, JJ.

MARBURY, Chief Judge.

A pedestrian plaintiff, in a suit for personal injuries against the operator and the owner of a taxicab, appeals from a judgment n. o. v., entered after a jury had disagreed. The facts in the case are fully set out in appellant's brief, and as this statement is accepted by the appellees, we quote the parts of it pertinent to the issue before us: ‘On the night of November 23, 1943, at about 1 o'clock, Blanche O. Jackson, the appellant, aged 39 years, was returning home from work at a war plant in a public passenger bus northbound on U. S. Route 222. After alighting from it at St. Marks Road, on which she lived, near Perryville, she was hit by the oncoming taxicab driven and owned by the appellee, Richard A. Grieninger and Walter F. Forwood, respectively, after she had walked past the front of the bus toward the west side of the road. It was a clear, dark night and the road was dry. Mr. Yates, the driver, stopped the bus on U. S. Route 222, facing north, close to its right shoulder with its front near the north side of St. Marks Road. This Route was a boulevard highway with a macadamized surface 22 feet wide, and the posted Victory Speed limit was 35 miles an hour. Its point of origin was U. S. Route 40 at Parryville and it ran northerly to Bainbridge Naval Station, Port Deposit, and beyond. The road was straight and there was a clear view of the intersection for 1500 feet north of it. From that point the downgrade to within 800 feet of the intersection was 3 to 5% and for the remaining distance 1 1/2 to 2%. St. Marks Road had a graveled surface and intersected Route 222 from the west at less than a right angle but did not extend beyond it. Mrs. Boyd, who was also a passenger, and the appellant, in that order, alighted at the right front door of the bus and walked five feet forward on the narrow graveled shoulder intending to cross the highway in front of the standing bus. When at its right front headlight the appellant looked to the right and saw the headlights of the appellees' car approaching about 400 feet away to the north. Because the headlights of the approaching taxicab seemed so far away the appellant thought she had sufficient time to walk to the other side, she started to cross the road westerly in front of and to the left of the bus, preceded by Mrs. Boyd by three or four feet. After the appellant had cleared the bus she looked to her left for traffic and saw none and while proceeding across looked again to her right. The car, she said, bore down on her with such speed that she could not get out of its way. She was about tow-thirds across the road or at about the middle of the southbound traffic lane, having walked 15 or 16 feet, when she was hit by the front of the oncoming southbound taxicab.’

The defendants, at the conclusion of the whole case, offered two prayers for a directed verdict. The first related to their primary negligence, and the second to the contributory negligence of the plaintiff. Both prayers were rejected, and after the jury disagreed, a motion for a judgment n. o. v. was filed under the provisions of Trial Rule 8(a), Rules of Practice and Procedure, pt. 3, subd. 3. This brings up both questions, primary negligence and contributory negligence.

The driver of the taxicab was on a boulevard highway, and his lights were on; but he said that when he was just getting ready to pass the bus, the lights of the latter were so blinding that he could not see ‘right at that point’ until he got there. He said he was about 20 or 30 feet away from the bus when it blinded him the worst, and that is when he slowed up. But he did not apply his brakes until he saw the object in front of him, which turned out to be the appellant. At that time he was about 10 or 12 feet from her. The evidence was that the skid marks caused by the brakes on the taxicab extended for over 60 feet. The officer said that he stepped them off and they were between 60 and 65 feet. The taxi driver said that he was only going 15 to 20 miles an hour, but the length of the skid marks indicated a greater speed than that. The driver himself said he measured the marks the morning after the accident with a tape measure, and they were then 45 feet 3 inches. Under this testimony, we think there could be drawn a reasonable inference that the driver did not have his car under control when he approached the bus with its blinding lights shining directly at him. Such an inference would justify the submission of the case to the jury on the question of the primary negligence of the defendants.

The motion for judgment n. o. v. was granted by the trial court on the ground of contributory negligence. If the appellant's negligence directly contributed to the happening of the accident, the negligence of the defendant as a contributing factor is immaterial. Campbell & Sons v. United Railways, 160 Md. 647, 154 A. 552; National Hauling Contractors Company v. Baltimore Transit Company, Md., 44 A.2d 450. It is essential, therefore, to examine the testimony as to the appellant's actions, in order to determine whether it shows that she was also guilty of negligence.

The law of contributory negligence is well settled. It is ordinarily a question for the jury, but where the facts are undisputed, and are open to but one inference, it is for the court to decide whether such facts show contributory negligence as a matter of law. National Hauling Contractors Company v. Baltimore Transit Company, supra, and cases there cited.

In determining whether the facts justify a holding that the plaintiff is guilty of contributory negligence as a matter of law, the test is also well settled. In the case of Campbell & Sons v. United Railways, 160 Md. 647, 154 A. 552, 553, it was said: ‘The formula long employed in this state to test the existence of contributory negligence as a matter of law is that the act to which that quality is ascribed must present some feature of reckless inattention or indifference so prominant and decisive in character that no room is left for ordinary minds to differ as to its imprudence.’

In the case before us, we have the testimony of the plaintiff as to her actions after she left the bus until the moment she was struck.

‘Q. Then tell what happened? A. Mrs. Boyd got out first and I got out right behind her, and we came around the bus to the right front headlight, and when I looked up the road towards Port Deposit, I seen this car approaching.

‘Q. Where were you then? A. At the right front headlight of the bus, and I looked up the road.

‘Q. Where did you get off; was it on the improved section of the road or the shoulder? A. I got off on the shoulder.

‘Q. How close was the bus parked to the shoulder? A. Right close.

‘Q. And the shoulder was composed of what kind of material? A. Gravel.

‘Q. And you got off on the gravel and walked up to the right front of the bus? A. Yes, sir.

Q. Then you looked where? A. To the right.

‘Q. Then you looked where? A. To Towards Port Deposit.

‘Q. Did you see anything? A. I seen a car coming down the road, which looked to be above Torbert's Store, but I interceded (proceeded) on across.

‘Q. Do you know how far it was away; Torbert's Store? A. Well, I imagine it could be about 400 feet up the road.

‘Q. This car was just north of that? A. Just north of that, yes sir. I started on across the road and when I got to the left side of the bus, I looked to the left for traffic coming the other way, and seen none, and then I looked to my right. I had interceded (proceeded) across a little further, and when I did, the car was bearing down on me with such speed I couldn't get out of his road.

‘Q. Then you turned and looked to the right, and the car was bearing down on you? A. Yes, sir.

‘Q. Did it hit you? A. Yes, sir, it did.

‘Q. You know where you were, what portion or the road you were on when you were struck? A. Right about the center of the south lane.

‘Q. How far would that be across the road from where you started? A. About two-thirds of the way across the road.

‘Q. After you were hit, you remember anything? A. No, sir, I do not.’

This is all the testimony in the case which shows what the plaintiff did after she had reached the left front of the bus. No other witness testified to any different action by her, and therefore we must accept her testimony for the purpose of this appeal as undisputed. So considered, it shows that when she was in the right front of the bus she saw a car approaching 400 feet away, running in that part of the road which she had to cross. She then walked across the front of the bus, looked to her left, but kept on walking, and when she again looked to her right, she was in the path of the car that she had seen, and it was so close to her that she could not get out of the way. The Court can reach but one conclusion from these facts. It is that her actions contributed directly to the accident. Therefore, under the law she...