Lange v. Affleck

• Citation: 155 A. 150,160 Md. 695
• Decision Date: 10 June 1931
• Docket Number: 16.
• Parties: LANGE v. AFFLECK.
• Court: Maryland Court of Appeals

155 A. 150

160 Md. 695

LANGE v. AFFLECK.

No. 16.

Court of Appeals of Maryland

June 10, 1931

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by H. D. Affleck against Fred Lange. Judgment for plaintiff and defendant appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

L Wethered Barroll and Fendall Marbury, both of Baltimore (William L. Marbury, of Baltimore, on the brief), for appellant.

Paul F. Due and Palmer R. Nickerson, both of Baltimore, for appellee.

SLOAN J.

On January 10, 1930, H. D. Affleck, plaintiff and appellee, was riding as a guest in an automobile owned and driven by Fred Lange, defendant and appellant, on the Reisterstown Road, at or near its intersection with Milford avenue, when it collided with an automobile driven by Lester See, resulting in serious injuries to the appellee, for which he sued and recovered a judgment from which this appeal is taken.

The appellant, on the day of the accident, had gone to Westminster on business and had asked the appellee to go with him "for company's sake." On their return to Baltimore, as they approached Milford avenue which breaks off from the westerly side of the Reisterstown Road south of Pikesville, they saw a car coming north on their left, or east side of the road, with which they collided at the junction of the two roads. The See car, as it approached Milford avenue, had slowed down, the driver intending to cut across the Reisterstown Road and turn into Milford avenue. Lange said he did not notice the other car until he was within twenty or twenty-five feet of it. He "might have seen him further down but didn't pay no attention to that individual car." The road was straight, with no evidence that there was anything on it to obstruct his view.

The questions submitted by the appellant for decision are the refusal of the trial court to instruct for the defendant for want of legally sufficient evidence, and two exceptions to rulings on evidence.

The appellant's sole reliance for the contention that his prayer for an instructed verdict should have been granted is the decision in Burhans v. Burhans, 159 Md. 370, 150 A. 795, 797, in which the evidence was that the defendant, in suddenly turning her car to avoid hitting a dog, ran the car into a culvert, resulting in the injuries there complained of. In the opinion in that case, written by Judge Pattison, it was said: "Because of the peril of the position in which she was placed by the presence of the dog in the road so near to her car, and the possible consequence resulting from a collision with it, she is not held to the same accuracy of judgment as is required of her under ordinary circumstances. And though a course of action other than that which she pursued might have been more judicious, she is not to be held liable for her error of judgment in pursuing the course she did, if in so doing, she acted with such care and caution as ordinarily prudent persons would have exercised under the stress of like circumstances. 42 C.J. page 890, § 592; Massie v. Barker, 224 Mass. 420, 113 N.E. 199; Leslie v. Catanzaro, 272 Pa. 419, 116 A. 504." In the instant case, however, the evidence fails to disclose any such emergency as the driver faced in the Burhans Case. The paved or improved portion of the Reisterstown Road at the point of the accident was twenty-one feet wide, so that there was a distance of ten and a half feet on each side of the center line. In addition, there was a space of several feet of solid dirt road on each side of the pavement. The appellant's testimony was that See "was cutting over, angling over to get over to make that turn he wanted to make, I presume, a left hand turn there." See's car was "I judge several feet past the dividing line, that is, when we came together." But he also testified: "If I would have turned possibly a little more to the right it might be possible that the accident could have been avoided." In other words, if he had done what he could and should have done there might not have been a collision, regardless of his charge of negligence against the driver of the other car. If the defendant was negligent and that negligence caused or contributed to the passenger's injuries, the defendant is responsible, even though another, and a stranger to the suit, did contribute to the injury. Gordon v. Opalecky, 152 Md. 536, 550, 137 A. 299; Cumberland & W. Transit Co. v. Metz, 158 Md. 424, 149 A. 4, 565.

Edward M. Evans, Jr., whose sister owned the car driven by See, testified: "We had gotten about * * * four feet off of the center of the road to the left of the center of the road when the car coming south (appellant's) I didn't see it * * * until it was about fifteen feet away from me." Asked whether the See car was "moving or had it stopped," he said, "I know if it was moving it was going very slow." Not sure whether it was moving at all.

David I. Morris, who had charge of a gas station at the intersection of the Reisterstown Road and Milford avenue and who was the...