Thursby v. O'Rourke

• Citation: 23 A.2d 656,180 Md. 223
• Decision Date: 13 January 1942
• Docket Number: 67.
• Parties: THURSBY v. O'ROURKE.
• Court: Court of Appeals of Maryland

23 A.2d 656

180 Md. 223

THURSBY v. O'ROURKE.

No. 67.

Court of Appeals of Maryland

January 13, 1942

Appeal from Superior Court, of Baltimore City; W. Conwell Smith Judge.

Action by George L. O'Rourke against G. Roberta Thursby and George A. Thursby for injuries sustained in automobile accident. From a judgment on a verdict for the plaintiff against George A. Thursby, he appeals.

Affirmed.

William L. Marbury, Jr., and Jesse Slingluff, Jr., both of Baltimore (L. Wethered Barroll and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellant.

Michael J. Manley, of Baltimore (David J. Markoff, of Baltimore, on the brief), for appellee.

Before SLOAN, JOHNSON, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY JJ.

FORSYTHE Judge.

On December 6, 1940, the appellee, George L. O'Rourke, filed a suit in the Superior Court of Baltimore City against G. Roberta Thursby and her son, George A. Thursby, for the recovery of damages as the result of having been struck, and injured by an automobile, owned by the said G. Roberta Thursby, and being driven by the said George A. Thursby. At the trial of the case, the Court granted a prayer directing a verdict for the said G. Roberta Thursby. A verdict for thirteen thousand five hundred dollars was awarded the appellee, the said George L. O'Rourke, against the appellant George A. Thursby. From the judgment on that verdict, this appeal was taken.

According to the declaration, and the proof, on October 4, 1940, about 8:30 P. M., the appellee approached a taxi-cab which had stopped near the east sidewalk of York Road, a short distance from the intersection of York Road and Arlington Avenue, and attempted to engage the taxi-cab to take him to another part of the City. The taxi-cab was engaged, but just about that time another taxi-cab came out of Arlington Avenue and turned South on York Road, and stopped on the West side of York Road opposite the appellee who was standing on the east side of York Road. The appellee testified: 'I then walked around in front of the Yellow Cab. I looked up and down the York Road to see if there wasn't any traffic coming up Northbound and then when I got over in between the two car tracks traffic started to come down South and I had to stop, so I stood there and there were about eight or ten cars passed me on the way down and this car, that is, the defendant's car came out and hit me, and after he hit me I did not know anything. He came out of line. He was going down South on the York Road. The other cars that were going South--some of them went by two together, alongside of one another and that would put one over near the car track. I was standing in front of the beauty parlor. I had crossed the two Northbound rails and I stopped between the Southbound and Northbound rails. Before I started across the street I looked up and down and there was no Northbound traffic. At the time I was struck the defendant's automobile was Southbound and he pulled out behind another car and came over and hit me. I couldn't get out of the way it was right on top of me.' On cross examination the appellee said: 'when I first saw the automobile it was about five or six feet away from me. At least that is when I knew I was going to get hit, that is how close it was to me, I knew I wasn't going to get out of the way. It was right in front of me on the side of the Southbound track, you are about as far away as when I seen it heading over.' It was agreed that the distance was fifteen feet. Further testifying the appellee said: 'when I got out between the two car tracks I had to stop. I stood right there I didn't go any further. Traffic was moving right swift. It, (the Appellant's car) was close to the car track, it was on the other side of the Southbound track. It wasn't in the track, it was on the outside. It was right close to the rail and there was another car on the right hand side of that one. They were coming two abreast and this car pulled out from behind it and came over in the car track.'

The witness Sullivan testified he saw the appellee standing between the north and south bound tracks, but was not looking at him when he was hit. Bowinkelman, the driver of the cab to which the appellee intended to go, saw him standing between the tracks, with traffic passing in both directions, but did not see him when he was hit, because of traffic passing in double line between the witness and the appellee.

The only witnesses who saw the accident, testifying for the appellant, were the appellant George A. Thursby and the two young ladies who were in the car. Thursby who is nineteen years of age, testified he was driving the car, 'not going any place in particular. I was going South on York Road averaging about thirty miles an hour. * * * I was straddling the outer rail of the Southbound track. Just after I passed Arlington Avenue this gentleman stepped out from behind this cab and walked--darted right into the side of my car. I jammed the brakes and swerved away from him, and stopped and pulled over to the curb on the West side * * * the only car that was on my side going down was the one that had passed me. My automobile was in good condition as to brakes and headlights. After I saw Mr. O' Rourke for the first time my car went about fifteen feet before it stopped because when I saw him I jammed on my brakes and swerved to the right. He was about five feet away from me when I first saw him.' On cross examination Thursby testified: 'when I first saw Mr. O' Rourke he was moving faster than walking but he wasn't running. He was going about a trot. He was in the middle of the Easternmost, (Northbound) car tracks. I was straddling the Westernmost rail of the Southbound car track. My left wheels were between the rails of the Southbound car track and my right wheels were West of the rails between the rails and the curb. I didn't go into him, he went into me. I saw him about five feet away from me.' The two young girls, each seventeen years of age, gave almost an identical version of the accident as did Thursby, except that both made contradictory statements in direct and cross examination, in reference to the distance the appellee was away from the appellant's car just before he was struck, and as to whether he was walking, trotting or running.

The proof is that York Road at the scene of the accident is well lighted from street lamps, and shop lights. At the point of the accident it is fifty-four feet nine and one half inches between curbs. That space is divided, twenty-seven feet five inches between the west curb and the westernmost car track running south; five feet four and one half inches between the two Southbound car tracks; four feet eight and one half inches between the north and south bound car tracks; five feet four and one half inches between the northbound tracks, and eleven feet eleven inches between the northbound tracks and the East curb.

The exceptions are to the granting of the appellee's first, second, fourth and fifth prayers, and in refusing appellant's B. C. fourth, fifth and sixth prayers.

The appellant's C. prayer was a demurrer to the evidence, and the B. prayer would have instructed the jury that the appellee was guilty of negligence directly contributing to his injury, and direct a verdict for the appellant.

Both of those prayers were properly refused. The evidence on the...