State, for Use of Whitaker v. Greaves

• Court: Maryland Supreme Court
• Writing for the Court: MARBURY Chief Judge.
• Citation: State, for Use of Whitaker v. Greaves, 62 A.2d 630, 191 Md. 712 (Md. 1948)
• Decision Date: 15 December 1948
• Docket Number: 41.
• Parties: STATE for Use of WHITAKER et al. v. GREAVES.

62 A.2d 630

191 Md. 712

STATE for Use of WHITAKER et al.
v.
GREAVES.

No. 41.

Court of Appeals of Maryland

December 15, 1948

Appeal from Circuit Court, Allegany County; William A. Huster and George Henderson, Judges.

Action by the State, for the use of Edna Whitaker and Phylis Whitaker, against Robert J. Greaves to recover damages for the death of Clarence Whitaker. From a judgment on a verdict for defendant after the filing of an amended declaration omitting Phylis Whitaker as an equitable plaintiff, the State, for the use of Edna Whitaker, appeals.

Reversed and remanded for a now trial. [62 A.2d 631]

Edward J. Ryan and William L. Wilson, Jr., both of Cumberland, for appellant.

Leslie J. Clark, of Cumberland, and Evan McC. Crossley, of Hagerstown, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY Chief Judge.

This is an appeal from a judgment on verdict in favor of defendant for costs in a case brought in the Circuit Court for Allegany County under the Maryland Lord Campbell's Act, Code Article 67. As originally filed, the suit was for the use of Edna Whitaker and Phylis [191 Md. 715] Whitaker, daughter and granddaughter of Clarence Whitaker, the deceased. Phylis Whitaker is the illegitimate daughter of Edna Whitaker. The defendant demurred to the declaration, the demurrer was sustained, and, thereafter, an amended declaration was filed leaving out Phylis Whitaker as an equitable plaintiff. A plea was filed to this declaration, and the case was tried on these pleadings.

The facts show that the deceased, Clarence Whitaker, was walking on a public highway near the foot of Big Savage Mountain, facing traffic coming down the mountain. The defendant, who was a resident of Columbus, Ohio, was coming from that town to the City of Washington, and drove east over the top of Big Savage Mountain, and in response to a sign there stating that there was a mile and a half down-grade, to descend in second gear when the road was wet, and to use brakes only to save speed, he put his car in second gear, but about half way down the mountain, he took it out of second gear and put it in high. The road was snowy, but had been cindered. He saw the deceased walking along the edge of the road and close to the bottom of the hill. The car started to slide sideways just before he reached Whitaker, and although the appellee tried [62 A.2d 632] to straighten it out, it turned completely around and went sideways off the highway and hit a telephone pole. In the course of so doing it hit Mr. Whitaker, who was thrown in a ditch on the side of the road. He was taken to a hospital, but died shortly afterwards. There was one witness who saw the accident. He was in front of a shop about three or four hundred feet from the place where it occurred. He heard a noise, looked up, and said he saw Mr. Whitaker flying through the air about six feet off the ground. He said he thought he was thrown about twenty feet. He said the road was 'pretty slick'. A man who was passed by the defendant at the top of the mountain, said that the road was slippery, and he had on chains, which the defendant did not. He noticed that the defendant was driving, he thought, a little fast for the condition of the road. He did not see the accident. The highway was [191 Md. 716] 47 feet wide at the place of the accident with an additional four foot shoulder. The telephone pole where the appellee's car came to rest was about four feet to the right, and the ditch in which the deceased was thrown was back of the telephone pole which would be about 15 feet from the edge of the shoulder.

The case was tried by the old method of ruling on prayers without an oral cha ge. We cannot refrain from the comment that we think much of the difficulty in this record would have been avoided had the judges used the more modern method, now generally in use. The defendant's eighth prayer, granted by the court, was a contributory negligence prayer, and his twelfth prayer, also granted, was an unavoidable accident...