Paolini v. Western Mill & Lumber Corp.

• Decision Date: 26 May 1933
• Docket Number: 13.
• Parties: PAOLINI v. WESTERN MILL & LUMBER CORPORATION.
• Court: Maryland Court of Appeals

166 A. 609

165 Md. 45

PAOLINI v. WESTERN MILL & LUMBER CORPORATION.

No. 13.

Court of Appeals of Maryland

May 26, 1933

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by James Paolini against the Western Mill & Lumber Corporation. From a judgment for defendant, plaintiff appeals.

Reversed and new trial awarded.

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

Paul Berman, of Baltimore (Leon Abramson, of Baltimore, on the brief), for appellant.

Edwin W. Wells, James J. Lindsay, and John Y. Offutt, all of Baltimore, for appellee.

PATTISON Judge.

This is an appeal from a judgment for the defendant in an action brought in the superior court of Baltimore city by James Paolini against the Western Mill & Lumber Corporation for personal injuries and damages to his automobile, caused by a collision of the plaintiff's automobile with the defendant's truck.

In the trial of the case, two exceptions were taken, one to the rulings of the court upon the prayers and the other to the action of the court in refusing the plaintiff time in which to read the granted prayers of the defendant before proceeding with his argument to the jury.

The plaintiff offered three prayers; his first and second were refused; his third was granted. The defendant asked for eleven instructions. Its A and B prayers asking for a directed verdict and its fifth prayer were refused; the others were granted.

In passing upon the court's rulings on the prayers, it is essential to state the evidence of the parties as to how the accident happened, or the collision occurred.

At the time of the accident, March 31, 1932, about 6:40 p. m., the plaintiff was returning to his home at No. 1505 North Bentalou street from his place of business at No. 612 Laurens street. A light rain was falling and the streets were wet. The plaintiff was going west on Laurens street in his automobile, and, as testified to by him, he approached the intersection of Stricker street, going from 8 to 10 miles an hour, and looked north to his right, saw no one coming, and continued in his course. He then looked south to his left, down Stricker street, and saw the defendant's truck coming towards Laurens street. He could not say how fast it was going. "My automobile * * * was even with the curb on Laurens Street, and it (the truck) was about sixty feet south of me coming north on Stricker Street; the streets at this intersection are thirty-nine feet wide, and are paved with asphalt. The truck * * * where I seen it about the middle of the street, when he seen me, he was swinging to the left and pretty near, close to the north-west corner of Stricker and Laurens." "As soon as I reached about the middle of the street (about five feet south of the north curb of Laurens Street if the same had been extended into Stricker Street) I was struck on the left hand side door and he * * * shoved me, thrown me right underneath the dash." The bumper of the truck was inside of plaintiff's car, and was hooked up with it. When the automobile came to a stop, "it was about ten feet from the northwest corner of Laurens Street."

On cross-examination the plaintiff testified that at the time of the accident it was getting dark; that when he first saw the truck his automobile was at the northeast corner of Laurens and Stricker streets "just about ready to pass Stricker Street," ready to go in Stricker street. "I had slowed down already, looked to my right and the street was clear, nobody coming and I continued to go and I looked to my left and the truck was sixty feet from me."

Doc G. Headspette, the driver of the defendant's truck, testified he was going north on Stricker street, and the plaintiff's automobile was coming west on Laurens street. When the witness got to the corner, the building line, he looked and saw the plaintiff's car coming at a "rapid rate of speed," about 60 or 75 feet away. At that time he started to slow down, and, as the plaintiff was coming so fast upon him, he put on his emergency brake; he thought plaintiff "would have slipped over to his right a little bit after he was coming so fast, he would pull over, he was right in the center of the street, right in the middle. I grabbed my emergency brake, and just the time I got the emergency brake down, he ran right up into me and with his left, I intended to make a left hand swing, my bumper, right hand bumper struck his front door and mud guard. Both machines came to a standstill."

Witness further testified that, when he first saw the plaintiff's automobile 60 or 75 feet away, it was in the middle of Laurens street. It was then that he applied his brakes. When asked: "What happened to the rear end of your truck?" he said: "My rear end skidded around to the right, and the front wheel sheered off the rear and skidded over to the right, trying to avoid hitting him after I saw him coming."

On cross-examination the witness testified that the sidewalk on Laurens street at its intersection with Stricker street was about 8 or 10 feet wide.

"Q. When you got to the corner of this house you saw this machine coming and it was sixty to seventy-five feet from you? A. Yes, sir.

Q. And coming down the center of the street? A. Yes, sir.

Q. Did you lower your speed? A. Yes, sir.

Q. And you were going how fast? A. Eight or ten miles an hour.

Q. In what distance can you stop going eight to ten miles an hour? A. With the brakes I can stop within six feet if it's dry.

Q. If the streets are wet, within what distance can you stop? A. You can't always tell. Depends how sudden you step on the brakes.

Q. That night, in what distance could you have stopped? A. Well, that's sort of hard for me to answer because I don't know, after the truck skidded, I could have stopped at least within ten feet.

Q. You could have stopped within ten feet on that particular night? A. Yes.

Q. And you saw him coming up here and he was sixty feet from you, sixty to seventy-five feet and you could stop in ten feet, is that right? A. I judge that's right.

Q. Did you stop in ten feet from the time you first saw him? A. Well, the time I first saw him I judge it was less than ten feet. I slowed up in less than ten feet.

Q. How far did you go before you stopped? A. We both got together right in the middle of the street.

Q. Come here and show us on the board. You mean right here (indicating)? A. Yes, sir.

Q. That is at the intersection? A. Yes, sir, right in the center.

Q. When did you attempt to stop? A. Just as I saw him coming.

Q. You put your brakes on to stop? A. I started slowing down. I didn't exactly stop. Sometimes in a case like that you figure a man going to slow up.

Q. You knew he had the right of way, didn't you? A. Yes, sir.

Q. Why didn't you give it to him? A. He had plenty of chance to speed up if he had swung over the line to the right, even if the truck had stopped.

Q. But the truck skidded around to the right, you say? A. The rear end skidded around to the right and the front skidded over to the left. I put it over to the left after he made no attempt to avoid it."

The evidence of the plaintiff and defendant's driver is conflicting. The driver of the defendant's truck said that he first saw the plaintiff's car when he was on Stricker street south of the building line at Laurens street. At that time the plaintiff's car was on Laurens street about 60 or 75 feet east of Stricker street approaching that street from the truck driver's right, going at a "rapid rate of speed." The plaintiff testified that he was on Laurens street at the east line of Stricker street, ready to pass into that street, when he first saw the defendant's truck. He was then going 8 or 10 miles an hour. The negligence charged against the plaintiff was that he was operating his car at a rapid rate of speed; while the negligence charged against the defendant's driver was his failure to yield the right of way to the plaintiff's car in accordance with the provisions of article 56, § 209, of the Code (as amended by Acts 1929, c. 224), which provides that vehicles approaching a street or road intersection from the left shall yield the right of way to those approaching from the right, subject to the exceptions or qualifications therein mentioned. The question whether the plaintiff had the right of way over the truck thus became an important one to be determined by the jury upon the facts adduced in evidence. Taxicab Co. v. Ottenritter, 151 Md. 532, 135 A. 587, 590; Hendler Creamery Co. v. Friedman, 160 Md. 526, 154 A. 93, 94; Jersey Ice Cream Co. v. Bach, 161 Md. 285, 157 A. 277.

The plaintiff's first prayer, which was refused, was offered for the purpese of presenting this question to the jury. It asked the court to instruct the jury "that under the law all vehicles shall have the right of way over other vehicles approaching at intersecting streets from the left, and shall give the right of way to those approaching from the right and if the Jury find from the evidence that the Defendant its agent, servant or employee, on the night of March 31, 1932, was driving an automobile truck approaching from the left, at intersecting streets, the car belonging to and operated by the Plaintiff, and shall further find that the said Defendant, its agent, servant or employee, on the occasion aforesaid, did not give the right of way to the Plaintiff's automobile, which was approaching from the right, if they so find, and that the Plaintiff, who was then and there driving his automobile acted with due care and caution immediately preceding the accident, if they shall so find, and that the failure of the said Defendant, its agent, servant or employee to give the right of way caused the collision in this case, then...