Mitchell v. Dowdy

• Decision Date: 16 May 1945
• Docket Number: 29.
• Citation: 42 A.2d 717,184 Md. 634
• Parties: MITCHELL et al. v. DOWDY.
• Court: Maryland Court of Appeals

42 A.2d 717

184 Md. 634

MITCHELL et al. v. DOWDY.

No. 29.

Court of Appeals of Maryland

May 16, 1945

Appeals from Superior Court of Baltimore City; Edwin T. Dickerson Judge.

Actions by Albert Mitchell and John R. Wagus against Henry D. Dowdy trading as Black & White Taxicab Company to recover for personal injuries in automobile collision. Verdict and judgment for defendant in both cases, and plaintiffs appeal.

Affirmed.

Paul Berman and Eugene A. Alexander, III, both of Baltimore (Theodore B. Berman, of Baltimore, on the brief) for appellant John R. Wagus.

Leon Abramson, of Baltimore, for appellant Albert Mitchell.

James J. Lindsay, of Baltimore, for appellee.

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

COLLINS Judge.

Here considered are two appeals in one record from the Superior Court of Baltimore City. The case comes to this Court on the refusal of the trial Judge to grant the third prayer of each plaintiff, and on an exception to part of the oral instruction given the jury.

Between the hours of 3:00 and 3:30 a.m. in the early morning of July 14, 1943, a bright moonlight night, the road dry and the weather favorable, appellant, John R. Wagus, was operating his automobile, a 1937 Oldsmobile sedan, in an easterly direction on the Philadelphia or Pulaski Highway, Route 40, going from Baltimore to Middle River. Accompanying Wagus and sitting on the front seat beside him was the other plaintiff, Albert Mitchell, both employees of the Eastern Aircraft Company. The road traversed by the plaintiffs in the vicinity of the accident is a dual highway with a grass plot thirty feet wide in the center and has two lanes for traffic going east and two lanes for traffic proceeding west. The concrete slabs on the north and south sides of the center grass plot are each twenty feet wide. The lanes are not marked by yellow or white lines, but merely by a separation in the concrete filled with tar to allow for expansion and contraction, making the division line a ribbon of tar. There is a gravel shoulder about eight feet wide on the right or outside of the east and west bound lanes. It is agreed that the accident occurred east of a crossover known as Todd's Lane which intersects the Philadelphia Highway.

The testimony of the plaintiff Wagus substantially follows: About a mile and one-half west of where the accident happened his automobile passed an intersection, and there was a tractor and trailer on the right-hand lane and a cab both traveling east. He admitted that as he entered the Philadelphia Highway, he saw the sign 'Keep to the Right.' After the cab had passed the tractor and trailer and was about seventy-five feet ahead of Wagus' automobile traveling at about thirty-five miles an hour, the plaintiffs passed the tractor and trailer and kept in the left-hand lane following the cab. Wagus blew his horn and blinked his lights, but the cab would not go over. Both the automobile and the cab were gaining momentum, and both kept in the left-hand lane about twenty-five feet apart for about a mile after they passed the tractor and trailer. The cab driver put on his tail light several times and as he did so, he pulsated and slowed up a little bit. As he did this the plaintiff Wagus, thinking the cab was going to make a left-hand turn and there being several cut-offs there, pulled to the right and after traveling for about one quarter of a mile, still about twenty-five feet behind the cab, the cab driver suddenly pulled over to the right when the automobile was twenty to twenty-five feet behind the cab. At one time Wagus said that the cab was over on the right-hand side of the road and on cross examination he testified that the back of the cab was not all the way over. In order to avoid hitting the cab because it had gone over about thirty degress diagonally on the road, he pulled his car to the right and put on his brakes. His left front fender hit the right rear fender of the cab, and he swung on over to the gravel and on the grass. He did not put on his brakes after he hit the cab, because he wanted to keep away from it. He lost control of the car which started to shimmy and then he put on the gas and tried to swing it out and 'gun' it to get centrifugal force back again. Then the car turned over.

The testimony of Albert Mitchell, the other plaintiff, was essentially the same as that of Wagus.

Officer Charles Knoerlein, for the defendant, said that the distance between the place of accident and the next cross roads to the east was about five hundred feet.

Joseph E. Peyton, the cab driver, called for the defendant, testified that he was traveling out the Philadelphia road and passed the tractor and trailer, and after he had gotten twenty-five or thirty feet ahead and giving himself plenty of time, maybe a minute after he had passed and without slowing down, he cut all the way over in the right-hand lane. After he had gotten all the way over in the right-hand lane and straightened out, he felt a jar. He looked and the next thing he saw was an automobile shoot right in front of him, coming from the right-hand side off the shoulder, on the grass plot and turn over twice. Then he stopped his cab and went over to the car, and there were four men in that car, two on the front seat and two on the rear seat. Both of the plaintiffs testified that there were only two men in the car. He said he did not see any lights blinking on or off behind him nor did he hear a horn blow, and before he pulled to the right, he looked in the mirror and looked over his shoulder, and there were no lights behind him except those of the tractor and trailer, and he thought that he was far enough ahead to pull in with safety. He did not see the automobile until he was hit by it.

Mrs. Virginia Marteney, called as a witness by the defendant, testified that she, her sister, and her sister's two children, one one year old and the other three years old, were traveling in the cab driven by Peyton. She said that they were driving along at a very moderate rate of speed, not over thirty-five miles an hour. Immediately after they passed the tractor and trailer she felt an impact on the rear of the cab as they were going on back from the left side to the right-hand lane of traffic. She had no warning of what was behind her. The cab was about twenty-five or thirty feet beyond the tractor and trailer before the cab driver started to pull to the right. The car that hit the cab went across on the gravel. When she saw the other automobile it was moving fast. It his the gravel, skidded, and turned back across the road in front of the cab and passed about eight feet in front of it and turned over in the center of the road. She said that before the impact, although she was in a position to observe, she did not hear any horn blowing or notice any lights flashing on or off. She did not get out of the cab after the accident.

The jury brought in a verdict for the defendant in both cases and from the judgments entered on those verdicts, the appellants appeal to this Court.

The third prayer of each plaintiff was to the effect that there was no evidence in the case legally sufficient to prove that either of the plaintiffs was guilty of any negligence which directly contributed to his injuries.

In order to rule that there was no contributory negligence on the part of either plaintiff, it would be necessary for the Court to find that as to contributory negligence the facts were undisputed and that only one reasonable inference could be drawn and that was that there was no contributory negligence on the part of the plaintiff. Where a reasonable inference can be drawn that there was contributory negligence on the part of the plaintiffs, it is the duty of the trial Judge to leave this question to the jury. It was said by this Court in the case of Ziehm v. United Electric Light & Power Co., 104 Md. 48, at page 60, 64 A. 61, 62, in speaking of contributory negligence: 'The law controlling this class of cases has been settled by numerous decisions of this court. It is this, where the facts are undisputed or where but one reasonable inference can be drawn from them, the question is one of law for the court; but where the facts are left by the evidence in dispute or where fair minds might draw different conclusions, the case should go to the jury.'

Without repeating in detail the evidence hereinbefore recited, it is enough to say that there was sufficient conflict as to the pertinent facts between the testimony of the plaintiffs on the one hand and the testimony of the witnesses for the defendant on the other, to submit to the jury the question as to whether there was any contributory negligence on the part of John R. Wagus, the driver of the Oldsmobile.

As to contributory negligence of the guest Albert Mitchell, one of the plaintiffs, the passenger seated in the front...