Oberfeld v. Eilers, 58.

• Decision Date: 13 January 1937
• Docket Number: No. 58.,58.
• Citation: 189 A. 203
• Parties: OBERFELD et al. v. EILERS, for Himself and to Use of CALIFORNIA INS. CO.
• Court: Maryland Court of Appeals

189 A. 203

OBERFELD et al.

v. EILERS, for Himself and to Use of CALIFORNIA INS. CO.

No. 58.

Court of Appeals of Maryland.

Jan. 13, 1937.

Appeal from Superior Court of Baltimore City; Rowland K. Adams, Judge.

Action by Christopher P. Eilers, for himself and to the use of the California Insurance Company, against Louis Oberfeld and Oscar Oberfeld, partners trading as the Overnight Transportation Company. From a judgment in favor of the plaintiff, the defendants appeal.

Reversed without a new trial.

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

Walter L. Clark and Clater W. Smith, both of Baltimore (J. Gilbert Prendergast, of Baltimore, on the brief), for appellants.

W. Hamilton Whiteford, of Baltimore, for appellee.

SLOAN, Judge.

This case is the result of a collision of the trucks of the respective parties on the Philadelphia road, near Bradshaw, in Baltimore county) on the night of June 9, 1934. From a judgment for the plaintiff, the defendants appeal.

The plaintiff, Christopher P. Eilers, was proceeding northward, driving a Ford one and a halfton truck, converted by the addition of what is known as a "high-low equipment" into a threeton truck. It was loaded with seven and a half tons of sheet iron destined for Philadelphia. The truck of the defendants, Louis and Oscar P. Oberfeld, partners trading as Overnight Transportation Company, a Mack trailer truck, was being driven south towards Baltimore by Samuel Patti. The trucks came together about fifty feet south of the bridge over the Gunpowder river. The road is 21 feet wide and curves slightly to the left as it approaches the bridge from the south. The headlights of each truck were visible to the driver of the other for a considerable distance from the point of the collision. The plaintiff's truck was a complete wreck. The trailer part of the defendant's truck only was damaged, the two left rear tires blown out, with some damage to the left front of the body. Both trucks were going at a moderate rate of speed, about thirty miles an hour.

There were two witnesses to the accident, the plaintiff and the driver of tlie defendants' truck. The defendants' contention is that there was no legally sufficient evidence of the defendant's negligence and that even if it was sufficient, the plaintiff Was guilty of contributory negligence as a matter of law, and that one of its demurrer prayers for a directed verdict, submitting both theories to the court, should have been granted. It is necessary, therefore, to review the plaintiff's testimony and such of the defendants' driver's as may tend to support it.

The plaintiff testified: "The road is down grade toward the bridge going north. As you cross the Gunpowder Falls there is also a hill that comes down. As I started down this hill and before I got in the curve I saw lights coming. I kept well to the center of the road, and when I approached this slight curve I was hit. I lost control of the truck and it turned over and burned. As I was approaching this curve in the road I was well to the right side of the road. * * * I saw the truck that later collided with me as I was part of the way down the hill. At that time it was coming across the bridge." If he had looked, he would have seen it a considerable distance north of the bridge. Webb-Pepploe v. Cooper, 159 Md. 426, 151 A. 235; Gitomir v. United Railways & Electric Co., 157 Md. 464, 146 A. 279. "I saw it coming toward me and it swayed out toward the center of the road at the curve. I came about the same time and it hit me. I could tell it swayed out toward the center of the road by knowing I was on the right side of the road. It swayed out toward me. I kept as far to the right as possible. The bodies of the two cars struck one another. The first point of collision on my truck was the left front fender on the top. It collided with the left part of the trailer on the left side." At the time of the collision he said the Mack truck was "Well over the center of the road."

"Q. Well over the center of the road? A. Yes. * * * It was in the middle of the road I am quite sure. * * * it was a good ten feet in the road, ten and a half. About that point I was jack-knifed; the front end was turned to the right. The tractor was to the right farther than the corner of the body. It (the trailer) would hang over the center of the road at that rate.

"Q. To the left of the center? A. Yes, sir."

Plaintiff testified that after the accident he saw "marks on the road that led up to the left front wheel of the (Mack) truck on the right side of the road. A short distance below where the wreckage was it led up to the center of the road and then to the right hand side of the road where they parked."

"Q. In other words, they started the right of the center of the road and lead up to the center of the road where the wreckage was in the road? A. Yes, sir."

The uncontradicted evidence was that the Mack truck had its two left rear tires blown out, so that, in being run off its right of the road they did about as much dragging as revolving and were more calculated to leave marks than any other wheels. The plaintiff has testified to "marks," plural, not a "mark," singular, so that we are left in a quandary as to whether the marks were made by the left front or left rear tires of defendants' truck and this evidence has little, if any, probative force.

On cross-examination, the plaintiff, asked, "How far down the hill were you then when you saw the (Mack) truck coming across the bridge?" answered, "Partly down to the scene of the accident; part way down." The collision occurred "possibly fifty feet" south of the bridge. When he saw it sway towards him it was "not very far away"; "Possibly twenty-five feet."

"Q. What did you do when you saw it sway out towards you? A. Kept well to my right.

"Q. You mean you continued on the same course you were going? A. I kept well to the right."

His answer to the next question was, "I kept on the course I was on."

"Q. You held to your course? A. Yes."

He said the defendants' truck was "ten and a half feet from the right hand edge of the road," and "that would bring it up to the center of the road" and would "mean that the left side of the truck was ten and a half feet from the right hand edge of the road," and "that was its position at the time of the accident." Regarding the marks in the road he was asked:

"Q. That...