Rinehart v. Risling

• Decision Date: 26 May 1942
• Docket Number: 24.
• Parties: RINEHART v. RISLING.
• Court: Maryland Court of Appeals

26 A.2d 411

180 Md. 668

RINEHART v. RISLING.

No. 24.

Court of Appeals of Maryland

May 26, 1942

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Personal injury action by Nellie M. Risling against D. Eldred Rinehart. From an adverse judgment, defendant appeals.

Reversed.

William P. Lane, Jr., of Hagerstown (E. Stuart Bushong, of Hagerstown, and Elmer B. Gower, of Cumberland, on the brief), for appellant.

John Wagaman, of Hagerstown (Charles F. Wagaman, of Hagerstown and Estel C. Kelley, of Cumberland, on the brief), for appellee.

Before DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

COLLINS Judge.

This is an appeal by D. Eldred Rinehart the owner of a truck appellant, from a judgment rendered against him in favor of Nellie Risling, appellee, as a result of a verdict by a jury in the Circuit Court for Allegany County.

On September 4, 1939, the appellee , together with four other persons, visited the Fair at Timonium. They left there between seven and eight o'clock in the evening to go back to Westminster. Having lost their way, they stopped at an eating place to get lunch and inquired about the road. After receiving directions from a man at the lunch room they proceeded southerly on the Gamber Road. It was raining hard as they approached the stop sign at the intersection of the Gamber Road and Route 140. As they approached that intersection on Gamber Road, there is a bank of earth which obstructs the vision of a car approaching the intersection on the State Highway Route 140 coming from the right. At the intersection the State Highway is 19.8 feet wide including the concrete shoulders and there is an up grade of approximately 4.6 per cent. The width of Gamber Road at the intersection is 19.4 feet and the down grade is about 4 per cent. The appellee was seated on the right hand side of the rear seat at the time of the accident and was asleep and did not know anything until the collision when she was severely injured. Seated next to her in the center of the back seat was a Mrs. Yates. A Mr. Bell was on the left of the rear seat and was also asleep at the time of the accident. The driver of the car was Mr. Kenneth Bowers and seated on the front seat to his right was his wife, Mrs. Nora Bowers.

The driver of the car in which the appellee was riding testified that as he approached the intersection he was driving about twelve or fifteen miles an hour. It was raining hard and he observed the stop sign on the right side of the road. He stopped between the bank and the road. He could see down the road one hundred yards as he was out past the bank and there was no obstruction to his view. His windshield was clear and both windshield wipers were working perfectly, and the windows in the right and left front doors and the rear windows were clear. From time to time on the trip home his wife wiped off the glasses on her side very often because the vision was obstructed through the side windows on the right. He thinks that his wife wiped off the glass after they stopped at the intersection. As he approached the intersection he did not know where he was. His lights were lighted and showed a garage on the other side of the road and a direction sign. He pulled up to the boulevard sign and stopped and looked both ways as did also his wife and Mrs. Yates. He didn't see any lights at all, put his car in low gear and went across at the rate of about four or five miles an hour. Just at the time of the crash he saw a light flash and shine in the right side of the car and that is all he saw. The hind wheels of his car were passing right over the shoulder of the opposite side of the road as his car was struck from the rear axle back to the end by the truck. There was enough room behind his car at the time of the crash for another vehicle to have gone through the intersection without striking him. He crossed the road with the intention of stopping over there and looking at the direction sign to find the way to Westminster.

Mrs. Maude Yates corroborates the testimony of Mr. Bowers but says that the car was approximately one-half way or two-thirds of the way across and she saw a flash of light and the instant she saw it the crash came. She also stated that the rain interfered with her seeing out to a certain extent but that she could see and at the time they arrived at the intersection it was raining very hard.

Mrs. Nora Bowers, the wife of the driver of the car, also corroborates the testimony of her husband. She says that the windows on her right and front were clear except for the rain which was beating in on her. She had a rag in her hand with which she was wiping the water off as the rain was beating against the right hand side of the car in hard dashes. As they kept going across the intersection the rain was dashing against her side of the car pretty hard.

For the defendant, the driver of the truck, William B. Wiles testified that he was driving a ton and a half truck loaded with peaches and lima beans, the weight of the load being around three and one-half He left Smithsburg around 9 P.M. and was accompanied by Mr. Johnny Blickenstaff on their way to Baltimore for the purpose of taking produce to market. It was raining when they started on the trip and raining at the time of the accident. The truck was equipped with one windshield wiper on the driver's side which was operating. As he approached the intersection where the accident happened, the truck was traveling easterly approximately twenty miles an hour in fourth gear and he was getting ready to change it into third gear. The truck was equipped with two headlights, two fog lights and five little clearance lights in front. The clearance lights are green, the five lights amber, and the headlights are white. The headlights were on high beam. As he approached the intersection the headlights, the fog lights and the clearance lights were all lighted and the beam of his lights extended nearly to the top of the hill ahead of him past the intersection. The first notice he had that there was a car coming from the intersection from the Gamber Road was when the headlights shone out from behind a bank right in front of him to his left. At that time he was right on top of it. The car came out of the Gamber Road at a pretty lively rate. He applied the brakes right away. The car ran directly in front of him and he hit it from the center of the front door back to the hind end. Both he and Blickenstaff saw the car about the same time and Blickenstaff hollered, 'Look out, Bill,' or something like that. The car was thrown against the bank on the right hand side down the Gamber Road. The truck turned crosswise and came to a stop ten or twelve feet past the intersection. After the collision the headlights on the truck were still burning, the fog lights were broken off. As he approached the intersection he doesn't think that he sounded his horn. He did not have time to sound the horn between the time he saw the automobile and the time he hit it. He was looking straight ahead as he approached the intersection to see if any automobiles were coming at the cross road and he could see down the highway...