Pegelow v. Johnson
| Decision Date | 29 November 1939 |
| Docket Number | 51. |
| Parties | PEGELOW v. JOHNSON. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.
Action by Florence Collins Pegelow against Edward R. Johnson for injuries received in collision between motorcycle on which the plaintiff was riding and defendant's automobile. Judgment for defendant, and plaintiff appeals.
Reversed and remanded for new trial.
Hyman A. Pressman, of Baltimore (J. Wilmer Cronin, of Aberdeen, on the brief), for appellant.
Paul F Due, of Baltimore (Due & Nickerson, of Baltimore, and G Howlett Cobourn, of Bel Air, on the brief), for appellee.
Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, SHEHAN, JOHNSON and DELAPLAINE, JJ.
This is an appeal from a judgment of the Circuit Court for Harford County entered upon the verdict of a jury in favor of the appellee (defendant below). The suit was brought by Florence Collins Pegelow to recover damages for personal injuries sustained by her on November 13, 1938, when a motorcycle on which she was riding collided with appellee's automobile on North Point Road, an arterial highway within the meaning of Code Article 56, Sec. 209 at or near its intersection by the Trappe Road, a lateral highway. The only exception before us pertains to the action of the trial Court in its rulings upon the prayers, appellant contending that her No. 1 prayer should have been granted, and that the Court erred in granting defendant's third prayer.
The plaintiff's injuries, concededly of a serious nature, were sustained about one o'clock A. M. on November 13 while riding as a guest or passenger upon a motorcycle driven by one Zensen upon the North Point Road in a northerly direction, the North Point Road being an arterial highway, eighteen to twenty feet in width, and on its west side, where it is intersected by the Trappe Road, a stopsign had been erected by the State Roads Commission. The Trappe Road, or lateral highway, is of approximately equal width, and runs east and west. At the time of the collision the weather was clear and visibility was good. The evidence of the plaintiff and her witnesses was sufficient, if believed, to enable a finding by the jury that the motorcycle on which she was riding was being operated at a speed from thirty to thirty-five miles per hour before it reached the intersection; that plaintiff observed appellee's automobile east-bound on the Trappe Road when it was one and one-half blocks from the intersection, but on arrival thereat, it did not stop, but proceeded upon the boulevard highway when the motorcycle was within fifteen feet of the intersection. Zensen testified that he did not see appellant's automobile until he was quite near the intersection, and the witness, the plaintiff and Tracy L. Taylor all were positive that appellee did not stop before entering the intersection; that it entered it as the motorcycle approached, so that its driver after realizing that the car operator was not going to stop before entering the arterial highway was unable to prevent striking the automobile, although in an effort to avoid colliding with the automobile, he tried to cut to his left, but came into contact with the car just as it had almost completed the turn in front of him; that the collision occurred at the intersection of the Trappe and North Point Roads and appellee 'came right out and made the curve * * * slowed down a little to make the curve * * * and did not stop.' The evidence offered on behalf of appellee differs materially from that of appellant and her witnesses and is to the effect that while driving his automobile east on the Trappe Road at a speed of twenty-five miles per hour, he approached the arterial highway, but upon arrival at the intersection stopped his car, waited and looked to see if the road was clear, and seeing nothing nearer the intersection than five hundred feet, drove out upon the boulevard; that as he made the turn his attention was called to the fact that a driver was approaching from his rear, and upon looking he thought he saw an automobile with only one headlight and continued to make the turn but when twenty-five feet past the intersection the rear of his car was struck by the motorcycle; that his turn had been more than one-half completed when his attention was first called to what he supposed was a car with one headlight, he was driving slowly and was struck just as he put his car in high gear, and at the time of the accident he was not driving more than fifteen or twenty miles per hour.
Sufficient has been said concerning the evidence offered on behalf of both parties to demonstrate that according to appellant's contention her injuries were occasioned by the failure of appellee to stop and yield the right of way to the motorcycle on which she rode and which was being driven upon the favored highway, while according to the version of appellee he did stop upon reaching the arterial highway and did yield the right of way to all approaching traffic; that the favored highway at the time he drove upon it was free from traffic and he entered and passed through the intersection without incident and was some distance beyond it when his car was struck by the motorcycle. It is not our province to determine which of those versions is correct, for those questions were for the jury to resolve upon proper instructions of the Court and undoubtedly the jury's verdict would have depended upon whether they accepted the contention of appellant or appellee as to the circumstances under which the collision occurred.
This brings us to a consideration of the plaintiff's first prayer which was refused and defendant's third prayer which was granted. By the former, appellant sought to have the jury instructed as to the relative rights of drivers of vehicles upon lateral highways as well as upon through or arterial highways. After requiring the jury to find that the North Point Road was an arterial highway and upon approaching said road while driving his automobile, appellee failed to come to a full stop before entering thereon or crossing the North Point Road, or having stopped, failed to yield the right of way to the motorcycle upon the favored highway, it concluded as follows: 'and if the jury find that the failure of the defendant either to come to a full stop before entering or crossing the said North Point Road or to yield the right of way to the motorcycle upon which the plaintiff was riding caused or contributed to the accident complained of, and that the plaintiff was injured thereby, if the jury so find, then the verdict of the jury must be for the plaintiff.' If it be conceded that by the first part of this instruction, the rules of the road applicable to the situation under consideration were correctly...
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Shedlock v. Marshall
...intersection, to yield the right of way to such traffic, and that this duty pertained throughout his passage across the favored way'. In the Pegelow case, the plaintiff, was a passenger on a motorcycle, was on the favored highway. The plaintiff's first prayer, which had been refused, said t......