State, for Use of Parks, v. Insley

• Decision Date: 27 January 1943
• Docket Number: 46.
• Citation: 29 A.2d 904,181 Md. 347
• Parties: STATE, for the Use of PARKS, v. INSLEY.
• Court: Maryland Court of Appeals

29 A.2d 904

181 Md. 347

STATE, for the Use of PARKS, v. INSLEY.

No. 46.

Court of Appeals of Maryland

January 27, 1943

Appeal from Superior Court of Baltimore City; J. Craig McLanahan Judge.

Suit by the State of Maryland, for the use of Sadie M. Parks, widow of Roland C. Parks, deceased, and for the use of Oxford Cabinet Company, a corporation, deceased's employer against Charles W. Insley to recover for deceased's death resulting from injuries sustained when struck by defendant's automobile. The employer seeks recovery to the extent of workmen's compensation award against it. From a judgment for defendant on a directed verdict, the equitable plaintiffs appeal.

Affirmed.

Paul F. Due, of Baltimore (Charles P. Coady, Jr. Due, Nickerson & Whiteford, and Rignal W. Baldwin, Jr., all of Baltimore, on the brief), for appellants.

Roszel C. Thomsen and Clater W. Smith, both of Baltimore (Clark Thomsen & Smith, of Baltimore, on the brief), for appellee.

Before SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

SLOAN Judge.

This is a suit brought under the Lord Campbell Act, for the use of Sadie M. Parks, widow of Roland C. Parks, deceased, and for the use of Oxford Cabinet Company (a Pennsylvania corporation), his employer, appellants, against Charles W. Insley, appellee, the owner and operator, of the automobile by which Roland C. Parks, was killed. From a judgment for the defendant, on a directed verdict, the equitable plaintiffs appeal.

At the time of his death, Mr. Parks was in the employ of the Oxford Cabinet Company (of Pennsylvania), and his widow was awarded compensation, after the decision in Oxford Cabinet Company v. Parks, 179 Md. 680, 22 A.2d 481, and the equitable plaintiffs sue over under section 72, Article 101, Code (1939).

At the conclusion of the plaintiff's case, the defendant offered a motion for a directed verdict because:

'1. There is no evidence in the case legally sufficient to entitle the Plaintiff to recover against him.

'2. He has not been shown to have been guilty of any negligence.

'3. The uncontradicted evidence shows that the deceased was guilty of negligence directly contributing to his death.

'4. The sole proximate cause of the accident was negligence on the part of the deceased.

'5. It appears from the evidence offered by the plaintiff that the injury to and death of the deceased may have been the result of his own negligence or of defendant's negligence, and the plaintiff has therefore not met the burden of proof.'

The trial judge, in passing on the motion, said that in his opinion there was legally sufficient evidence of the defendant's, negligence, but that the evidence also showed such lack of care and caution on the part of the deceased as to hold him guilty of contributory negligence.

The only contention of the equitable plaintiffs on the appeal is the ruling of the court with respect to contributory negligence; nothing else is discussed by them or decided by this court.

The accident occurred on September 25, 1940, about 7:15 in the morning, on Harford Road in Baltimore City, about midway between Markley and Grindon Avenues in front of Knecht's Filling Station. A misty rain was falling. The appellee's car was north bound on Harford Avenue; the deceased, Parks, was evidently crossing from the east to the west side of Harford Road. Harford Road, at the place of the accident, is 63.5 feet between curbs. Two car tracks occupy 15.5 feet in the center of the road, and it is 24 feet from the curb on each side to the nearest rail. The defendant is the only witness who saw the accident happen, and his evidence is in the record by deposition taken under the pre-trial rule of the General Rules of Practice and Procedure effective September 1, 1941.

The defendant's car was running in the northbound railway track, and hit the deceased when the latter had reached the first or east rail, the right front part of the car striking him. He was thrown toward the car, hitting and crashing into the right side of the right windshield and the right corner post of the windshield frame, which was dented; the man landed on the right front fender, and was carried there a short distance until thrown off in the street.

There were two other witnesses who testified, but they did not see the impact; they couldn't have known anything until they heard the crash of the victim with the defendant's windshield; neither of them saw the defendant's car, nor the deceased until after the impact of the defendant's car and the deceased. Their testimony is nothing but conclusions as to what had happened, so that they were making themselves jurors instead of witnesses to facts.

What happened was this: The motorist, defendant, was going north on the right of the center of the Harford Road on the...