Smith v. Barnhart, 255

• Decision Date: 18 May 1961
• Docket Number: No. 255,255
• Parties: Nellie SMITH v. Ellwood BARNHART et al.
• Court: Maryland Court of Appeals

Page 391

225 Md. 391

170 A.2d 766

Nellie SMITH v. Ellwood BARNHART et al.

No. 255.

Court of Appeals of Maryland.

May 18, 1961.

Sheldon A. Rubenstein, Baltimore (Carl W. Bacharach, Baltimore, on the brief), for appellant.

Milton I. Vogelhut, Baltimore, for Charles B. Caperton, one of appellees (submitted on brief by J. Kemp Bartlett, III, and Bartlett, Poe & Claggett, Baltimore, for Ellwood Barnhart and C. V. Transport Co., other appellees).

Before BRUNE, C. J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.

PER CURIAM.

Nellie Smith was injured while riding as a passenger in an automobile driven by Charles B. Caperton in a westerly direction on Pratt Street, in Baltimore City, when it collided at the intersection of Pratt and Monroe Streets with a tractor trailer operated in a southerly direction by Ellwood Barnhart, and owned by the C. V. Transport Company. Traffic at the intersection was controlled by a conventional automatic traffic light, which was operating in good working order at the time of the accident. She brought suit against the operators of both vehicles and the owner of the tractor trailer, the appellees here. In response to a demand for admission or denial filed by the appellee Caperton, the appellant answered admitting that at the time the automobile in which she was a passenger entered the intersection the automatic traffic signal was green in favor of Caperton.

On May 9, 1960, Caperton moved the court to enter a dismissal in his favor under the pleadings and admissions. This motion was heard in chambers by Judge Allen who, on that date, granted the motion and entered judgment absolute in favor of Caperton for costs of suit. Later, on the same day, a jury was impaneled and the case was tried as to the remaining defendants. The jury, on May 10, returned their verdict in favor of the defendants Barnhart and C. V. Transport Company. On May 10, 1960, judgment nisi on the verdict was entered and on that date plaintiff filed a motion for judgment N.O.V. and in the alternative for a new trial as to all defendants. On June 6, 1960, the judge denied the motion for new trial, and judgment on the verdict was made absolute in favor of the defendants Barnhart and the Company for costs of suit. On June 29, 1960, the appellant noted an appeal to this Court from both judgments.

On this appeal the appellant seeks reversal, contending (1) that Judge Allen's ruling on the motion to dismiss by Caperton was in error and, (2) that the verdict of the jury with regard to Barnhart and the C. V. Transport Company was against the weight of the evidence.

Appellee Caperton in this Court filed a motion to dismiss the appeal as to him because the order for appeal was not filed within thirty days after the entry of judgment in his favor. Maryland Rule 812 a provides that an order for appeal shall be filed within thirty days from the date of the judgment appealed from. The order for appeal was filed June 29, 1960, more than thirty days after the judgment in favor of Caperton on May 9. The judgment of May 9, 1960, in favor of Caperton was rendered by the trial judge on the...