Thompson v. Sun Cab Co., Inc.

• Decision Date: 09 April 1936
• Docket Number: 53.
• Citation: 184 A. 576,170 Md. 299
• Parties: THOMPSON v. SUN CAB CO., INC., ET AL.
• Court: Maryland Court of Appeals

184 A. 576

170 Md. 299

THOMPSON v. SUN CAB CO., INC., ET AL.

No. 53.

Court of Appeals of Maryland

April 9, 1936

Appeal from Baltimore City Court; Rowland K. Adams, Judge.

Action by Raymond Thompson against the Sun Cab Company Incorporated, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Benjamin Unger and Joseph Loeffler, both of Baltimore, for appellant.

Charles E. Kaufman, of Baltimore (James J. Lindsay, of Baltimore, on the brief), for appellees. PARKE, Judge.

The action in this case was brought by Raymond Thompson forty-seven years old, against the Sun Cab Company, a corporation, and Joseph D'Assenze, its agent, as joint tort-feasors, for injuries sustained by the plaintiff as a result of his being struck by a taxicab while negligently driven by Joseph D'Assenze as the agent of its owner, the Sun Cab Company. The accident occurred, about a quarter after 9, on the rainy night of April 8, 1935, at the intersection of Bank and Boulden streets in Baltimore City. The defendants were laid under rule to state the particulars of their general issue plea, and replied by setting up as their defence that neither the defendants jointly, nor did either of them, either own or operate the taxicab which hit the plaintiff. The parties went to trial, and the single question is the propriety of the court's action in granting, at the close of the plaintiff's case, a prayer instructing the jury that the plaintiff had offered no evidence legally sufficient to entitle him to recover against the defendants. The jury rendered its verdict for the defendants in conformity with this instruction, and the plaintiff appealed.

There were but two witnesses who testified. The plaintiff was one and the other was the doctor at the hospital where the plaintiff was taken immediately after the accident. Giving to this evidence all the force of which it is susceptible in either directly or inferentially establishing the facts, the plaintiff failed affirmatively to prove a cause of action against the defendants. In the first place, the plaintiff was bound to produce testimony which would show or from which it could be inferred that the two defendants were jointly liable for the wrong alleged. There is not a scintilla of evidence that the defendant Joseph D'Assenze was the agent of the Sun Cab Company. The plaintiff did not identify him as the driver, nor is there any proof whatsoever that this defendant was, at the time of the accident, either the driver of the vehicle or responsible for its operation; or in the vehicle or in the service of the company. If it be conceded that there was testimony tending to establish negligence on the part of the operator of the taxicab and that it was owned by the defendant corporation, the plaintiff, in his action against the two defendants, failed to prove his averment that the two defendants, whom he had united as jointly responsible wrongdoers, were the two wrongdoers who had committed or were responsible for the wrong alleged, and, so, he was not entitled to go to the jury as his action continued against the two defendants. Buckey v. White, 137 Md. 124 131, 111 A. 777; Louis v. Johnson, 146 Md. 115, 119, 125 A. 895. See State v. Boyce, 72 Md. 140, 142, 19 A. 366, 7 L.R.A. 272, 20 Am.St.Rep. 458; Hambleton v. McGee, 19 Md. 43, 47; Barker v. Ayers, 5 Md. 202.

Since the action was ex delicto and a joint liability need not be proved, the variance on the proof in its failing to show the liability of one of the alleged defendants was not necessarily fatal to the plaintiff's right of action, which could have been sustained against one or more or all of the alleged joint tort-feasors as the plaintiff might elect or the evidence establish. So, the verdict and judgment could have been against one joint tort-feasor and for the other. The nonliability of one of the joint tort-feasors did not appear until the close of the plaintiff's case, and objection could then be made as a variance. The prayer offered put the plaintiff to his election. He could have amended his declaration by asking leave of the court to strike out the defendant against whom his proof had failed, and the cause would then have proceeded against the remaining defendant. Code, art. 75, §§ 39, 43, 44, 45. See article 50, § 12; Poe's Pleading (Tiffany Ed.) §§ 384, 385, 385A, infra; see Atkinson v. Railway Co., 137 Md. 632, 636, 113 A. 110. Here the plaintiff did not amend, and, so, a judgment of non pros would have been properly entered by the court in favor of the defendant whom the evidence had not shown to be liable, if the prayer submitted by the defendants had not gone to any right of recovery by the plaintiff. Powell v. Bradlee & Co., 9 Gill & J. 220, 275; Pendergast v. Reed, 29 Md. 398, 402, 403, 96 Am. Dec. 539; Herzberg v. Sachse, 60 Md. 426, 433, 434; 1 Chitty on Pleading, 97 (star).

The remaining and principal inquiry is whether or not the plaintiff has a right of action against the other defendant, the owner of the taxicab. On the night of the accident, the plaintiff, who lived on the east side of Bouldin street, went south on that street to buy cigarettes. Although it was raining when he set out, he had neither umbrella nor raincoat. After he bought the cigarettes, he started to go back. It was then raining hard, and he was walking rapidly north on the east side of Bouldin street, which is intersected, at right angles, by Bank street one-half of a block south of the plaintiff's home. When he reached Bank street, the plaintiff stopped and looked to the right and to the left, and, not hearing a thing, started across the street. He "got near halfway cross the intersection" and a taxicab going west, struck the plaintiff below the kneecap of his right leg with the left side of the bumper and knocked him back to the left, about five feet, with both bones of his right leg broken. He testified that he saw the taxicab, which had stopped, when he got up, but he does not tell where it stopped. Two men approached him from the taxicab and said that they had hit the plaintiff and that they would take him to the hospital, and they did. One of these men gave his name, which was not that of the defendant, and the name of the other is not known. The plaintiff testified that he was unconscious from the time he was taken into the taxicab until after he was in the hospital.

It does not appear from the record that the traffic at the intersection of the two city streets was controlled by traffic officers, so by the terms of the statute all pedestrians had the right of way at the street crossings, ^[1] but they did not have this right of way between street crossings, ^[2] nor did pedestrians have this right of way over the space within the inner lines of the defined or customary street crossings of the intersecting streets, ^[3] although the failure of a pedestrian to cross a street otherwise than upon the street crossing does not make the pedestrian prima facie guilty of negligence, although he has thereby forfeited his right of way. ^[4]

The plaintiff in the case at bar does not put himself on the street crossing over Bank street, but merely said that he walked up to the street, started to cross, and was hit when he got halfway across the intersection of the streets by a taxicab coming from his right. There is no testimony by which it appears that the accident occurred on the street crossing, and therefore the plaintiff's evidence establishes the accident was in the intersection of the two streets where the plaintiff had no right of way and where the defendants were not bound to anticipate his presence. Supra, Brune's Motor Vehicle Law, § 22, pp. 65, 66. So, the happening of the accident in the intersection of the two streets was not of itself sufficient to charge the defendants with negligence. Neither was there any testimony to warrant a finding that, at the time of the accident, the taxicab did not have its lights lit, nor that it was moving at too great a speed, nor that it was incompetently or carelessly driven, or out of proper control. There is no primary negligence shown, unless the meager testimony on this record is legally sufficient for a jury to find that the taxicab was to the left of the center of the street when the plaintiff was struck, and that this deviation was the proximate cause of the injury.

It is true that it would have been negligence on the part of the defendant to have been operating, at the time of the accident, ^[5] his motor vehicle on the wrong side of the center line of the highway either at street crossings ^[6] or intersections, ^[7] or elsewhere, ^[8] unless conditions for which the defendant was not negligently responsible had made it necessary for the defendant's motor vehicle, in the exercise of reasonable care under the circumstances, to have been temporarily driven to the left of the center line. ^[9] With these rules in mind, the testimony may be considered with reference to the position of the taxicab when the plaintiff was hit. There is no direct evidence where the taxicab was. Its position must be inferred from the point in the intersection of the streets to which the plaintiff had walked at the time of the accident. His testimony on that point is simply: "I started across the street, and I got near half way cross the intersection, and this cab struck me coming west and knocked me back about five feet, I judge, back to the left." He does not state that he was nearly halfway across Bank street, but halfway across the intersection of Bank and Bouldin streets, whose respective widths are unknown. It follows that halfway across the intersection may put the pedestrian over the center line and on the right of way of...