Lusk v. Lambert

• Decision Date: 30 November 1932
• Docket Number: 11.
• Parties: LUSK v. LAMBERT ET AL.
• Court: Maryland Court of Appeals

163 A. 188

163 Md. 335

LUSK v. LAMBERT ET AL.

No. 11.

Court of Appeals of Maryland

November 30, 1932

Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.

Action by Gertrude Lusk against Lee Edgar Lambert and Annie E Lambert. From judgments for defendants, plaintiff appeals.

Judgment for defendant Annie E. Lambert affirmed, judgment for defendant Lee Edgar Lambert reversed, and case remanded for a new trial against him.

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

Leonard Weinberg and Harry J. Green, both of Baltimore (Weinberg & Sweeten and David Friedman, all of Baltimore, on the brief) for appellant.

William D. Macmillan, of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellees.

SLOAN J.

While crossing a street in Baltimore between intersections, the appellant, Mrs. Gertrude Lusk, was struck and severely injured by an automobile. The automobile belonged to Mrs. Annie E. Lambert, one of the appellees, and was driven by her son, Lee Edgar Lambert, the other appellee, whose testimony that he was not using it for any purpose or business of his mother was not disputed.

At the close of the evidence, Mrs. Lambert presented a prayer that there was not legally sufficient evidence of negligence offered against her which, under the authority of Wells v. Hecht Bros. & Co., 155 Md. 618, 142 A. 258, was properly granted, and removes her from further consideration in this opinion.

Both defendants submitted two prayers, A and B, for a directed verdict, the first for want of legally sufficient evidence of negligence, the second on the ground of contributory negligence of the appellant as a matter of law, both of which were granted and which are the subjects of this appeal.

According to section 209, article 56, of the Code (Act of 1929, c. 224), "All pedestrians shall have the right of way at street crossings in the towns and cities of this State, except where traffic is controlled at such crossings by traffic officers. Between street crossings in such towns and cities, vehicles shall have the right of way"; but, while the mere fact that a pedestrian is injured when crossing a city street between crossings "is one of the facts to be considered on the question of his negligence, is not sufficient, standing alone, to establish negligence prima facie; to establish it, that is, in the absence of any other facts. No statute gives the fact that effect, and it would not logically follow, for a pedestrian has a right to cross the streets between crossings, and it is conceivable that a man might be injured while crossing with care and without contesting the right of way there." Nelson v. Seiler, 154 Md. 63, 76, 139 A. 564, 569.

The appellant, Mrs. Gertrude Lusk, on the evening of November 9, 1929, about 7:30 o'clock, was taken by her son, William L. Lusk, in his automobile to do some shopping. On their return they stopped on the west side of Monroe street, Baltimore, between Baker street on the south and Presbury street on the north, across the street from the appellant's house, No. 1641, located on the east side of Monroe street. The block is 420 feet long, the appellant's house being about two-thirds of the distance from Baker street. The son had taken the goods his mother had bought into her house, intending to return and go with her to a show. After the son had gone toward the house, his mother got out of the car and started across the street.

She said she walked around to the back of the car and stopped to see if there were any automobiles coming. No street cars on that street. "I got off the curb and walked to the edge of the back of the car so that I could see." "I looked north and south. I looked both ways." Saw one automobile; thought it was near Baker street, on her right, and going north; "didn't notice any other automobiles." If there had been any, she would have seen them. "I walked out to the center of the street and stopped to leave the car go by, and the car went by" (the one going north). "I stopped in the center of the street to leave this car go by that was going north and after it passed me I started to make two or three steps to continue to my home, and just then I was struck by a car going south." As stated in the record, "When she was standing there in the middle of the street, she could see into her own front door. Her son was in the house. She thinks her daughter, Anna, was standing in the door. * * * When she was standing in the middle of the street * * * it was light where she was standing. She knows that because there is a light in front of the door and she was nearer to her pavement than any place else. She was near to her side of the street while she was standing there. She was nearer to the east side than the west side." On cross-examination, she said: "She could see at least a block away up to Westwood Avenue, which was north of Presbury Street, and saw no automobile within the space. Then she walked across and she got to the centre line of Monroe Street." Did not remember how far away the north-bound automobile was at the time, and after it passed she made "one or two or three steps." When it passed, she was "right about where the center line would be." As the car passed, "it was closer to the curb" than to her.

"Q. Now then, you were right on the center line, about on the center line of Monroe Street when this car passed you by and you took two or three steps and you were struck? Is that correct? A. That is correct.

Q. By the automobile that was coming south? A. Yes, sir.

Q. Mrs. Lusk, while you were walking across to the center line of the street didn't you look to your left again at any time up to the time you got to the center? A. Of course I looked as I walked across the street.

Q. As you were walking across the street then, from where you got out, back of your son's car, you were looking both ways, then, to your left and to your right? A. Of course. * * * And didn't see any automobile approaching."

The daughter, Anna, testified that she came to the door to admit her brother. As stated in the record, "She saw her mother before she closed the door. She saw her mother coming across the street and did not close the door." "After my brother passed, my mother was standing in the middle of the street; she was just about in the center of the street, coming towards the center and then she stopped." "My mother was standing in the center of the street and I stood at the door waiting for her and I saw a car go past her going towards North Avenue, going north, and then after the car has gone past she took a few steps toward the house. She had taken two or three steps and then suddenly, just like a flash I saw a car strike her, and I didn't see her just as soon as it hit her she was gone. I saw the car strike her." "The car was going south"; "I don't know what I done for the minute. I went back in the house. I was very frightened." "She started to go out, then realized she was not dressed and ran back into the house. She ran to the second floor and told her brother and sister what had happened. Her brother was then coming down the hall from the bathroom and her sister was just coming out of her room. They ran out while she slipped a dress on * * * and went downstairs. She did not see her mother. Her mother had gone." The...