Robert v. Wells

• Decision Date: 18 May 1936
• Docket Number: 15.
• Parties: ROBERT v. WELLS.
• Court: Maryland Court of Appeals

184 A. 923

170 Md. 367

ROBERT v. WELLS.

No. 15.

Court of Appeals of Maryland

May 18, 1936

Appeal from Circuit Court, Carroll County; Wm. Henry Forsythe, Jr. Judge.

Action by Elizabeth Wells against Joseph H. Robert. Judgment for plaintiff, and defendant appeals.

Affirmed.

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

W Clinton McSherry, of Frederick (Robert E. Clapp, Jr., of Frederick, and D. Eugene Walsh, of Westminster, on the brief), for appellant.

F. Waters Trapnell, of Baltimore, and James E. Boylan, Jr., of Westminster, for appellee.

JOHNSON Judge.

The appeal in this case is taken by Joseph H. Robert from a judgment entered against him by the circuit court for Carroll county upon the verdict of a jury in an action of tort in favor of Elizabeth Wells. In her declaration, it is alleged "that, on the night of December 27, 1934, at or about 9:00 p. m., while the plaintiff was riding as a passenger in an automobile being operated westerly on Frederick avenue, near the intersection of Glenwood avenue, both public highways in Catonsville, Baltimore county, state of Maryland, she sustained serious injuries when the automobile in which she was riding collided with the defendant's truck, which the defendant had left standing on the traveled portion of Frederick avenue, so as to obstruct traffic, without displaying any lights or any warning whatsoever; as the result thereof the said plaintiff sustained injuries to her head, body and limbs, suffered great pain and mental anguish and other great and permanent wrongs."

The sole exception in the record was taken by appellant to the action of the trial court in its rulings upon the prayers, the first and fourth of which were granted as offered by the plaintiff, while appellant's first and second were rejected. Both of these rejected prayers sought an instructed verdict in his favor, the first upon the ground that no legally sufficient evidence had been offered to entitle the plaintiff to recover, and the second, because of an alleged nonexistence of evidence legally sufficient to establish any negligence on the part of the defendant directly contributing to the accident.

The injuries for which appellee sought recovery occurred on December 27, 1934, between 8 and 9 o'clock p. m. on Frederick avenue at Catonsville, in newly annexed territory of Baltimore City. Frederick avenue runs approximately east and west, and its width, from north to south curb, is 44.1 feet. On the southerly side thereof is a space 14.3 feet wide used for vehicular traffic, while the northerly side, 14.4 feet in width, is devoted to a similar purpose, the remaining or center portion being taken up by two railway tracks of the Baltimore Transit Company.

Appellee's injuries occurred in the northerly lane above described at a point from 25 to 60 feet west of the intersection of the north line of Frederick avenue with the east line of Glenwood avenue, when an automobile in which she and others were riding in a westerly direction came in contact with a parked truck, also facing west.

Appellee offered testimony which, if accepted by the jury as true, justified a finding that at the time and place mentioned she was riding in her husband's automobile, accompanied by the husband, who was its driver, a friend of his and five children, the latter of whom occupied the rear seat, while the three adults remained upon the front seat. It was dark and although not raining the condition of the weather was hazy, and according to some of her witnesses, slightly misty. They had passed through Catonsville, and while proceeding at a rate of speed from 20 to 25 miles an hour, they suddenly saw in their path a parked truck, upon which there was at least no rear light, nor at that time were there any other lights which they observed. This truck, which was loaded, had a covering of dark canvas, and was not parked parallel to the north curb of Frederick avenue, for while its right front wheel was within 1 or 2 feet of the curb, its right rear wheel was as much as 4 feet from the curb, making the rear of the truck extend considerably in the northerly traffic lane down which the Wells car was being driven. Just before seeing the truck, plaintiff and her companions met an automobile which was being driven easterly and equipped with very bright headlights that for the moment prevented the driver of the Wells car from having a clear view ahead, but he immediately slowed down (Williams v. State, 161 Md. 39, 155 A. 339), and those occupying the front seat did not observe the parked truck until within from 5 to 10 feet of it. Concerning this, the witness Woodland, who, with Mr. and Mrs. Wells, occupied the front seat of the Wells car, testified: "There was some cars coming, they were coming east on Frederick avenue. All of a sudden I seen a shadow, I seen this truck parked there with a canvas, and when I seen it it was about ten feet, I imagine, somewheres around there--about as far as from here to the end of the table (indicating), about ten feet; and then I didn't know nothing else. Then I seen Mr. Wells, he turned his wheel, but he couldn't miss it because he was too close, and then I didn't know anything until after he hit. When he hit I got out some way, I don't know how I got out because I was right at the door and that got mashed to pieces, and the radio came up against my legs. I don't see how I ever--so, I got out and I asked this man, I said, 'who was driving the truck?' I didn't know what I was doing because I was bleeding here and here and my hand and I didn't know what I was doing; and that is when I asked this man who was driving the truck, and I didn't know hardly what I was doing, evidently, because that was bleeding so bad. I was kind of scared, you see; and that is all I know about it. There was cars coming east, you see, and it was bright; you couldn't see very good.

Q. Did Mr. Wells change his speed any when he saw those cars blinding him? A. Sure. He was going out there a little faster, and he got to the speed limit and then he slowed down, as anybody should.

Q. He slowed down when he saw the cars? A. As soon as he got to the Catonsville limit he slowed down.

Q. These cars approaching, were they on their own side of the road? Did they cross the center line of Frederick road at all? A. Around the center of the road, coming east.

Q. Did they force Mr. Wells over any, or was he continuing as usual? A. He was driving the way anybody should, about--I imagine about two foot from the right hand side. I mean, on the north side of the road from the car track. That is the way I think anybody should drive.

Q. When you saw this truck did you get a good view of it? Could you see as well as the lighting conditions permitted? A. Yes, sir; I could see it was something dark, but we were too close; and I could see it didn't have any light on it. If it had a light on it the canvas must have been over it or the tail gate. You could not see no light nowhere on it.

Q. Was it parked close in against the curb? A. No, sir. The front wheel was about a foot--it wasn't--about a foot from the front wheel, I guess, but the rear wheel was about four feet off. It was on an angle, you see. The truck was parked like that and he was going in--he was going west on Frederick avenue, and when I seen it he swung the car and we was right into--the front sticking out across the car track when I got out."

The north side of Frederick avenue where the accident occurred was unlighted, but when the driver realized the presence of the parked truck, he cut to his left in an effort to avoid contacting it, but was too near it to accomplish this purpose and his car struck the left rear corner of the tailboard of the truck, which board was so adjusted as to form an extension of the truck floor. As a result of this contact, the plaintiff sustained serious and painful injuries, from some of which, even at the date of trial, she was still suffering.

The defendant offered testimony from which the jury could have found that on the day of the accident he had been to Baltimore on business and was accompanied by Ira G. Nuss. After there loading his truck, he met his companion on South Schroeder street about 8 p. m., and they started out Frederick avenue intending to return to their homes in Frederick. They stopped at Irvington where appellant got refreshments and inspected the lights on his truck and found them all working. This was but a few minutes drive from the scene of the accident, and about the time they were passing through Catonsville his engine failed to function properly, causing him to park the truck near the north curb of Frederick avenue to ascertain the trouble. Although his right front wheel was near the curb, his left rear wheel was 2 feet to the south of it. He again inspected his lights and found all properly working, but discovered his vacuum tank was empty, and started across Frederick avenue for gasoline, but before reaching the station, and while within the beam of his own headlights, he heard a crash and discovered his truck had been struck by the Wells car. He immediately returned to the truck, examined the rear light, which had been "smashed up" by the collision, yet the filaments, until recently within its bulb, were still red hot.

Much of the testimony offered by the defendant was in direct conflict with that of the plaintiff, but...