Jones v. Wayman

• Decision Date: 16 January 1936
• Parties: JONES v. WAYMAN.
• Court: Maryland Court of Appeals

182 A. 417

169 Md. 670

JONES v. WAYMAN.

Court of Appeals of Maryland

January 16, 1936

Appeal from Circuit Court, Talbot County; Wm. Mason Shehan, Judge.

Action by John T. Wayman against Herbert M. Jones. From a judgment for plaintiff, defendant appeals.

Affirmed.

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

John H Hessey, of Baltimore (Musgrave, Bowling & Hessey, of Baltimore and T. Hughlett Henry, of Easton, on the brief) for appellant.

James E. Ingram, Jr., of Easton, for appellee.

MITCHELL Judge.

The single exception in the record on this appeal relates to the action of the lower court in rejecting the A, B, and fifth prayers of the appellant (defendant below); the first of said prayers being a general demurrer to the evidence, and the last-mentioned prayers being predicated upon the theory of contributory negligence.

John T Wayman, the plaintiff, who was 50 years of age, at the time of the injury complained of, was walking on a state highway leading from Claiborne to St. Michaels in Talbot county, on Sunday, September 17, 1933, at about 2 o'clock a. m., when he was struck by a Chevrolet coupé owned and driven at the time by the defendant, Herbert M. Jones. There were no witnesses to the accident causing the injury, other than the plaintiff and defendant, and Rebecca Bartlett Price, a passenger in the defendant's car.

The plaintiff testified that around 5 o'clock on the previous evening, in company with his nephew, he visited the town of St. Michaels, where he procured one pint of whisky, treated four of his friends from its contents, took two drinks himself, and threw the balance away. About 9 o'clock on the same evening he had two or three drinks of beer; and after 11 o'clock he got in a friend's car and went to a place called Fisherman's Inn, which was located near a canning house at McDaniel Station. He did not drink anything at Fisherman's Inn, and later started to walk towards his home. When he reached a point in front of the canning house, he saw two automobiles parked on the road. He was asked by one of the occupants of the cars for a match, told his inquirer that he did not have one, and proceeded to walk with the traffic along the shoulder of the road 40 or 50 feet. He then testified as follows: "The first thing something flew over the top of me. I never seen no lights or nothing. I looked up and there was a car. There wasn't a word said. I could see the faces in the car. Nobody said nothing to me, so I walked off. After I walked off a little ways the car drove off. They ran over me. I wasn't in the center of the road. I was on the right hand side, off on the dirt. The car ran off the road three feet and struck me." A short time afterwards the plaintiff hailed a passing car driven by Arthur L. Blake, who was accompanied by Dorothy A. Blake, his wife, and another passenger. Mr. and Mrs. Blake took the plaintiff immediately to the home of a neighboring physician, Dr. J. H. Hope, who administered first aid and advised that the patient be taken to a hospital. The doctor testified that the plaintiff appeared to be very drunk, but that he had also been very badly injured. He, however, qualified the statement as to drunkenness, to the extent that he could not say how drunk the patient was, but that he certainly had been drinking; that he was bleeding badly; his teeth were knocked out; and that it was possible for a man in that condition to be dazed. Mrs. Blake testified that Mr. Wayman was drunk; and her husband testified that "he had a strong smell of drink."

Harry G. Sewell testified that he saw the plaintiff around 12 o'clock on the night of the accident, at which time he appeared to have had a drink or two, but walked and talked all right, and did not seem to be drunk. To the same effect Camper Newman testified, stating that he saw the plaintiff at about 12:05 a. m. on the night of the accident. Samuel G. Carroll, then sheriff of Talbot county, testified that he saw Mr. Wayman at about 12:05 o'clock, and that he was not drunk, but walked and talked straight. Similar testimony was also adduced from Roman Le Compte, an officer of the town of St. Michaels, who stated that he was with Sheriff Carroll, saw the plaintiff around 12 o'clock, and that he walked and talked all right. All four of the next above witnesses saw the plaintiff at Fisherman's Inn, and it is testified by the plaintiff that he did not drink anything at the latter place, or at any time after leaving St. Michaels.

Miss Price, the passenger in the defendant's car at the time of the accident, testified that the accident occurred around 2 o'clock a. m. on the 17th of September, 1933, when, in company with the defendant, she was returning from a roadside house known as "Conway's"; that it had been very stormy during the night, but was clear when the collision took place; that the defendant was sober, and was driving upon the Claiborne-St. Michaels highway, in the direction of St. Michaels, when she noticed a car parked on the opposite side of the road, headed in the direction of Claiborne, and a man standing upon the road engaged in conversation with an occupant of the car; that as the car driven by the defendant reached a point 25 or 30 feet distant from a point opposite the front of the parked car, the man "staggered back" in front of the defendant's car; and that he wore a white shirt and white trousers, and she could plainly see him at the instant he was struck. She further testified that the defendant swerved to his right and put on his brakes; that she saw the plaintiff thrown up in the air, and she recognized his face. She then became unconscious, and did not recover from the shock until she was near her home at Newcomb, to which destination the defendant was then driving.

Herbert M. Jones, the defendant, testified that he had three drinks of liquor between 7 and 11 o'clock on the evening before the accident; that he visited Conway's between 11 and 12 o'clock, where he drank a highball. He left Conway's around 1 o'clock a. m., stopped at another place for 15 or 20 minutes, and proceeded on his journey to take Miss Price to her home at Newcomb. He reached the state highway at McDaniel Station, and the accident occurred between the station and the canning house. According to this witness, the highway at the point at which the accident happened is perfectly straight and so continues for one-half to three-quarters of a mile; the road is 15 feet wide, with a 3-foot shoulder. He was driving at a speed of from 30 to 35 miles an hour, when he noted a parked car headed in the opposite direction from which he was traveling. His testimony as to how the accident happened is similar, in detail, to that of Miss Price. In direct conflict with the testimony of the plaintiff, he asserts that the plaintiff did not get up after the accident and look in the car, nor did he walk away while the defendant was on the scene. He examined the plaintiff, who rolled off the fender of the car to the edge of a ditch, and concluding that he was not seriously injured, decided to take his guest to her home, and return to the scene of the accident later. This he did, but when he returned the plaintiff had disappeared.

As is usual in such cases, the testimony of the contending parties is conflicting; and especially do we find a conspicuous lack of harmony as to all vital issues involved in the instant...