Stark v. Gripp

• Decision Date: 05 May 1926
• Docket Number: 14.
• Citation: 133 A. 338,150 Md. 655
• Parties: STARK ET AL. v. GRIPP.
• Court: Maryland Court of Appeals

133 A. 338

150 Md. 655

STARK ET AL. v. GRIPP.

No. 14.

Court of Appeals of Maryland

May 5, 1926

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

"To be officially reported."

Action by Edward Gripp against Joseph D. Stark and another copartners trading as the Snesil Dairy Company. Judgment for plaintiff, and defendants appeal. Affirmed.

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

Edwin W. Wells, of Baltimore, for appellants.

Clifton S. Brown, of Baltimore (Robert E. Kindred, of Baltimore, on the brief), for appellee.

BOND C.J.

The plaintiff, Gripp, now appellee, recovered judgment against the appellants for damages from personal injuries sustained by being thrown from their truck while it was being driven by their chauffeur. He was a bricklayer, employed by a builder and contractor to wall in a clean out door in a smokestack on property of the appellants in Baltimore city, and, the door needing repairs, he was sent with it in the appellants' truck to a blacksmith. On the return from the blacksmith's when the truck, coming south on Eden street turned to the right into Baltimore street, Gripp, with the seat on which he was sitting, was thrown out to the left, and in the fall to the street one of his legs was broken. His employer was insured by the State Accident Fund, and full compensation under the Workmen's Compensation Act (Code, art. 101) was paid to the injured man from that fund during his disability. No suit was brought by the employer or insurer over against the Snesil Dairy Company, the present appellants, within the two months after the award of compensation, and the workman himself brought this suit four months after the award, under section 58 of the act, and recovered the judgment from which the appeal has been taken.

On the appeal it is, first, contended that the trial court erred in refusing to direct the jury to find their verdict for the defendants, as requested in the appellants' first prayer, on the ground that there was no evidence in the case legally sufficient to prove negligence in the driving of the truck. It is not disputed that the plaintiff, and the seat with him, were thrown out when the truck turned into Baltimore street. In addition to that, the plaintiff himself testified that the truck came down the grade at a pretty good speed, and turned without slowing down, so that the seat was caused "to have an awful swing." He said he was thrown about 12 feet to the side. It seems to us a jury might reasonably conclude that a turning of the truck in such a way as to throw the weight of a man and the seat out from the truck so far was not ordinarily careful driving.

There was no evidence of negligence in construction or upkeep of the truck. After the accident, pins or rivets which ordinarily held hinges by which the seat was attached to the truck body were missing, and the defendants produced testimony that they were in place earlier on the day of the accident. But it cannot be said that this fact affects the possibility of negligence in driving; it seems to us it may have led the jury to believe that the force to which the seat and the passenger were subjected by the turn pulled the pins out, and that negligence in driving was all the more clearly shown by that fact. The question of negligence, we think, was one for the jury to decide.

Another contention is that in the plaintiff's prayers stating the grounds of...