Sline & Sons, Inc. v. Hooper

• Citation: 164 A. 548,164 Md. 244
• Decision Date: 16 February 1933
• Docket Number: 86.
• Parties: SLINE & SONS, INC., ET AL. v. HOOPER.
• Court: Court of Appeals of Maryland

164 A. 548

164 Md. 244

SLINE & SONS, INC., ET AL. v. HOOPER.

No. 86.

Court of Appeals of Maryland

February 16, 1933

Appeal from Baltimore City Court; Albert S. J. Owens, Judge.

Action by Charles M. Hooper against Sline & Sons, Inc., Cornelius Sline, and others. From judgment for plaintiff, the named defendants appeal.

Affirmed.

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

Foster H. Fanseen and Hilary W. Gans, of Baltimore (Herbert M Brune, Jr., of Baltimore, on the brief), for appellants.

John Y Offutt, of Baltimore (James J. Lindsay, Jr., L. Wethered Barroll, and Levin & Hendelberg, all of Baltimore, on the brief), for appellee.

PATTISON J.

In this case the appellee, Charles M. Hooper, in the afternoon of May 4, 1931, was struck and knocked down at the intersection of Gay and Eden streets in the city of Baltimore by an automobile owned by Henry A. Arnold and operated by his son William F. V. Arnold. The accident was caused by a collision between Arnold's automobile and a Ford truck belonging to Sline & Sons, Inc., and driven by Cornelius Sline. The appellee was walking northeast upon the pavement on the westward side of Gay street, and had reached the northwest corner of Gay and Eden streets. Gay street, a narrow street with single car tracks in the middle, crosses Eden street at an angle of about forty-five degrees. Arnold was driving his automobile on the northwest side of Gay street, between the curb and the car tracks, going southwest. The appellant Cornelius Sline was either going north on Eden street, or northeast on Gay street. The evidence thereon is conflicting. Sline testified that he was traveling on Gay street, going northeast, and, upon reaching Eden street, he attempted to cross the car tracks and go north into Eden street. The other witnesses in the case testified that Sline was traveling on Eden street, and that upon reaching Gay street he attempted to cross that street when the collision occurred. In any event, the collision of the automobile and the truck was at the intersection of the two streets.

To recover for the injuries sustained by him by reason of the accident, Hooper, the appellee, sued Sline & Sons, Inc., Cornelius Sline, Henry A. Arnold, and William F. V. Arnold, jointly. The jury returned a verdict for Hooper as against Sline & Sons, Inc., and Cornelius Sline, and a verdict in favor of Henry A. Arnold and William F. V. Arnold. A judgment was accordingly entered upon the verdict against Sline & Sons, Inc., and Cornelius Sline. It is from that judgment that the appeal in this case was taken.

In the trial of the case, ten exceptions were taken to the rulings of the court on evidence, and one to its rulings on the prayers. The plaintiff asked for one instruction only, which was granted; while the defendants, Sline & Sons, Inc., and Cornelius Sline, asked for six. The first of these was granted; the third, fifth, and sixth were granted as modified; and their A, second, and fourth prayers were refused. The exceptions of the defendants to the rulings of the court on the prayers were confined to its refusal to grant the defendants' A, second, and fourth prayers, "both as originally offered and as amended."

The defendants' A prayer is a demurrer to the evidence, and it thus becomes necessary for us to state somewhat in detail the evidence in the case.

The appellee, Hooper, testified that he was about sixty-two years of age, and unmarried; and at the time of his injury he was employed by the Atlas Toy Company on Charles street near Pratt, as a foot power press operator, using his right foot to work the press. His wages while with that company were fourteen or fifteen dollars a week. Previous to this, he had been in the employ of a Mr. Phelps for about thirty years. He was on his way home from work, on the north corner of Gay and Eden streets, and in the act of crossing Eden street, when struck by the automobile. One foot was upon Eden street and the other was on the curb, and he saw the automobile coming down Gay street "awful fast, so fast I could hardly see it." He did not see the appellants' truck, he only saw the car coming down Gay street from the northeast; nor did he see any automobiles going up Gay street--"everything was clear when I tried to step off until that crash came." He did not see the collision between the automobile and the truck, but heard a crash and was hit.

Paul E. Burke, a truck salesman, testified' that he knew none of the parties to the suit. At the time of the accident, he was with his wife in the automobile on their way home. He was driving northeast on Gay street, following a line of traffic which included a street car and four or five automobiles which were moving very slowly. As the automobile immediately ahead of him was crossing the center of Eden street, he saw a truck belonging to Sline & Sons, Inc., approach from his right, traveling north on Eden street, "at a pretty good rate of speed, I would say between thirty and thirty-five miles an hour, I am not sure about that, I don't know the speed, he had the right of way over me." Witness stopped his car to let the Ford truck go through between it and the automobile immediately in front of him, and "as far as he could tell the Ford car (truck) did not slacken its speed as it approached Gay Street, continued the same speed." About this time he saw a Franklin car, the one driven by Arnold, coming southwest on Gay street. He could not say whether the Franklin car was going fast or not. When the witness stopped his automobile, a gap opened between him and the automobile immediately ahead of him. "The driver of the Ford swung to the left to get through the gap and then swung to the right after he got through." The collision occurred at a point in Gay street north of the car tracks, and, as a result of the impact, the Franklin car was knocked to the right towards the appellee, and struck him as he was about to cross Eden street. He was struck by the automobile's right fender, but the witness could not say where the appellee was hit, as the automobile was between the witness and Hooper; nor could he state the exact positions of the car and the truck after the collision.

William F. V. Arnold, the driver of the automobile which collided with the truck, testified that on the occasion of the accident he was driving southwest on Gay street, and until he reached Ashland avenue, which crosses Gay street running east and west, he was following a street car which turned up Ashland avenue. The intersection of Gay street and Ashland avenue is only a short distance from the intersection of Gay and Eden streets, there being but five business houses on the west side of Gay street between these intersections. Arnold testified that, after going about half the distance between the intersections mentioned, he practically came to a standstill to allow three colored children to cross the street, and before starting his car he put it in second gear and continued by the solid line of traffic behind the street car; and, when near Eden and Gay streets, he put his gear in high and was then going between fifteen and eighteen miles an hour. When he reached Eden street he slowed up to look to the right on that street, and then looked to the left and saw Mr. Sline "coming through the gap. He was not coming north on Gay Street either, he was coming right straight through Eden Street * * * He was about in the center of Eden Street going north on Eden Street * * * coming through (the gap) at a slight angle, and before I had a chance to get the brake on to the full extent, I was hit * * * He was coming plenty fast." Because of the solid line of traffic "I could not seen anything on the other side of the traffic until right on top of it * * * as I got to the gap he was just entering the gap at an angle eight feet distant from me." The witness was then going about fifteen miles an hour. He had assumed nothing would come from the north because of the traffic following the street car. It had been raining and the streets were wet and the accident left very definite skid marks where the front wheels had been shoved across. "He lost control of the car from the hit on the front wheels and fender, and the car spun around * * * he ended up at an angle about two and a half feet from the curb where the sewer hole was. He first saw Mr. Hooper when he was four feet from him." Mr. Hooper did not look up. Witness stated that, when the Ford truck struck him, he had no control over his car. When Hooper was hit by his car, he was off the curb completely, about four feet from the curb. Witness further testified that the truck, after the collision, was parallel with his car in the middle of Eden street.

Cornelius Sline testified that he was driving the truck owned by Sline & Sons, Inc., and was going north on Gay street and "stopped right in the middle of the car track there, not going over the other track."...