Slaysman v. Gerst

• Decision Date: 11 June 1930
• Docket Number: 42.
• Parties: SLAYSMAN v. GERST.
• Court: Maryland Court of Appeals

150 A. 728

159 Md. 292

SLAYSMAN v. GERST.

No. 42.

Court of Appeals of Maryland

June 11, 1930

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Action by Roland Slaysman, by his father and next friend, Mahlon Slaysman, against Peter J. Gerst. From a judgment for defendant, plaintiff appeals.

Affirmed.

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

T. Lyde Mason, Jr., of Baltimore (Philip V. Hendelberg, of Baltimore on the brief), for appellant.

George E. Kieffner, of Baltimore (Stewart & Pearre, of Baltimore and Jenifer & Jenifer, of Towson, on the brief), for appellee.

DIGGES J.

The accident in this case occurred on Kirk avenue in Baltimore city, between Bonaparte and Bartlett streets. Kirk avenue runs north and south. The plaintiff below (appellant here) on March 16, 1929, was injured by being struck by the automobile of the defendant (appellee) traveling south on Kirk avenue. It was a clear day; the bed of the street being dry, surfaced with asphalt, and 26 feet wide. The accident occurred on Saturday afternoon about 4 o'clock. The appellant is a boy who was twelve years and eleven months of age at the time he received the injuries for which damages are sought. At the close of the plaintiff's testimony the defendant offered three prayers asking a directed verdict in his favor, which were refused. The trial proceeded by the introduction of evidence on behalf of the defendant; and at the close of the whole case the defendant offered the following prayer, which was granted: "The Court instructs the jury that under the pleadings in this case there is no evidence legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant." Under this instruction the jury found a verdict for the defendant, upon which judgment was entered for the defendant for costs. The appeal which we are considering is from that judgment.

The evidence of the plaintiff and defendant presents entirely different theories as to how the accident occurred.

The plaintiff's testimony is that he and another boy were playing with a ball on the west side of Kirk avenue, a short distance north of an alley, which alley is 90 feet north of Bartlett street. The boys were throwing a rubber ball against the brick wall of a building on the west side of Kirk avenue at this point. They were on the sidewalk when the ball rebounded from the wall into the bed of the street and rolled across to the east side; whereupon the plaintiff left the west curb, looked to the north, ran across the street, and recovered the ball about one foot from the east curb, then without looking further, returned towards the west side of the street, and was struck by an automobile, belonging to the defendant and which he was driving, about the center of the street. He says that he did not see the defendant's automobile until he was struck on his right side by the right fender of the automobile; that the street was level, and there was a parked automobile on the west side of Kirk avenue near the point of the collision; that he heard no sounds, neither did he see the automobile, before he was hit; that he fell over on the curb on the west side.

On cross-examination he testified that when he was struck he was to the west of the center of Kirk avenue; that, when he crossed the street to get the ball, he left the west sidewalk in front of the parked machine; that he looked up Kirk avenue when he was about 3 feet from the curb, but did not look after he picked up the ball on the east side and was returning; that, if he had looked after picking up the ball, there was nothing to prevent him from seeing. Mrs. Sheehan's house is on the northwest corner of Kirk avenue and Bartlett street, and extends north from Bartlett street to the alley. Edward G. Olert testified that he lived on Bartlett street, the fifth house from Kirk avenue; that at the time of the accident he was going down the alley in back of his house leading to Kirk avenue, and was at Mrs. Sheehan's back yard; that he saw the plaintiff run across the street with the ball, and saw the machine strike him while he was returning from east to west; that witness did not hear any warning of the approach of the defendant's automobile; that the plaintiff was lying about 5 feet from the west curb when he first saw him; that he did not hear any brakes applied; and that the defendant's car proceeded between 8 and 10 feet after striking the plaintiff. This witness also said there was one machine parked on the west side of the street; that at the time he was struck the plaintiff was between the defendant's car and the west curb; that the defendant pulled his car to the side before he got out, at which time the defendant's car was "around eight feet" from where he hit the boy.

Mrs. Lula Olert testified that she was the wife of the preceding witness and an aunt of the plaintiff; that she did not see the accident, but went to the scene almost immediately and saw the defendant "setting Roland down in the alley with his eye and mouth bleeding, his shoe off and limping"; that while she was standing at the scene of the accident Mr. and Mrs. Hoffeld of Stemmers Run came over and tapped her on the shoulder and gave her their names and addresses as witnesses; that the defendant made no statement or explanation of how the accident happened, but did say the boy did not want to go to the hospital. Mrs. Frances Sheehan testified that at the time of the accident she was sitting at her kitchen window looking at the boys playing ball; that she saw the defendant's machine coming south on Kirk avenue when it was about 500 feet from the point where the accident occurred; that she does not drive an automobile herself, but has been riding in one for ten years. This witness was then asked:

"Q. Do I understand that you saw this automobile from the time you first saw it until it hit the boy? A. Absolutely.

Q. Did you see the boy hit? A. I certainly did.

Q. Between the time that you first saw the machine and the time when the boy was struck, I would like you to tell the jury whether the machine was going slow or fast or very slow or very fast?" This question was objected to, and objection sustained.

The witness then testified that she saw the defendant's machine continuously from a point 500 feet from the accident until the plaintiff was struck, and "it was going at a very excessive rate of speed; very fast;" that witness went to the scene of the accident and found the plaintiff lying about 5 feet from the west curb; that she saw the plaintiff before the accident standing on the pavement on the west side of Kirk avenue "playing with the ball up against the wall"; that "the ball bounced in the street and as it struck in the street it run to the east side and Roland after it and I saw Roland after it and he was a little more than half way over Kirk Avenue on the west side when the gentleman in the machine came down and struck the child in the side with the front fender and struck him on the side and rolled him over on the curb stone"; that she did not hear any warning sound of the approach of the automobile.

"Q. I want to ask you where was the machine of Mr. Gerst when he pulled it up to the curb, if he did that? A. His machine was across the center of the road and after he struck the child he had to skid, I guess he skid it around ten or twelve feet into the 14-feet alley.

Q. You mean he turned into the alley? A. He didn't turn in the alley, he had to come to the west side of the road to stop.

Q. Where was he with reference to the alley when he finally stopped his machine? A. How far from the alley?

Q. Yes, where was he? A. I judge a foot and a half or two feet from the alley.

Q. North or south of the alley? A. North.

Q. I want to ask you this, how many stops did his machine (make) before he got out? A. When he skid, he only had one stop to make.

Q. He didn't stop it when he hit the boy and then pull to the curb? A. Impossible, he could not, he was going too fast.

Q. After he struck the boy he went to his first stopping place and then got out? A. Absolutely.

Q. Did you notice any other cars parked around there at the time of the accident? A. Yes, one.

Q. Where was that one? A. That was parked on the west side of Kirk Avenue, belonging to the Chesapeake Construction Company or one of the foremen or bosses.

Q. Can you tell whether Gerst's machine had passed that one when he struck Roland? A. Yes, I won't say the rear of his machine cleared it but the front cleared it.

Q. So he was a little bit ahead of the parked machine? A. Yes."

This witness did not see Hoffeld at the time of the accident. She further testified that the defendant's machine went from 12 to 15 feet after hitting the plaintiff.

The defendant was driving a Dodge sedan; the other occupant of the car, George Kahl, was on the front seat, to the right of the driver. Jacob Hoffeld testified that he was within 50 feet of the accident when it occurred, was driving north on Kirk avenue, had passed Bartlett street, going in the direction of Bonaparte street, saw the defendant's machine coming south on the opposite side of the street, saw the plaintiff miss the ball that had bounded from the wall on the west side of Kirk avenue into the bed of the street whereupon the plaintiff moved backward into the bed of the street, directly in front of the defendant's machine; that the defendant stopped his machine; that, when he saw the plaintiff "duck" into the street after the ball, defendant's machine was from 7 to 10 feet away and to...