Vacek v. State

• Decision Date: 20 June 1928
• Docket Number: 31.
• Citation: 142 A. 491,155 Md. 400
• Parties: VACEK v. STATE, FOR USE OF ROKOS ET AL.
• Court: Maryland Court of Appeals

142 A. 491

155 Md. 400

VACEK v. STATE, FOR USE OF ROKOS ET AL.

No. 31.

Court of Appeals of Maryland

June 20, 1928

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

"To be officially reported."

Action by the State, for the use of Mamie Rokos and others, against Emil Vacek. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before PATTISON, ADKINS, DIGGES, PARKE, and SLOAN, JJ.

William L. Marbury and Fendall Marbury, both of Baltimore, for appellant.

Daniel S. Sullivan, of Baltimore (S. Scott Kirkley, of Baltimore, on the brief), for appellee.

DIGGES J.

The accident for which damages were recovered in this suit occurred while one William C. Vojik was driving an automobile belonging to Emil Vacek, the defendant. The occupants of the automobile were five in number, the driver and Havelick occupying the front seat, and Rokos, Lehicko, and Vacek the rear seat. The accident resulted in the death of Rokos, and the suit is by the state of Maryland, for the use of his widow and two infant children, against Vacek. It occurred while the party were returning from a shore owned by Vacek on Middle river between 12:30 and 2 o'clock in the morning of November 29, 1926. The day before the accident, being Sunday, the occupants of the car had gone (but not together) to Dundalk, a shore resort, Vacek having gone there in his own machine with some other guests, but, except for Havelick not those who were in the machine at the time of the accident. About 7 o'clock that evening one Hoska borrowed the defendant's machine to go back to Baltimore, and Vojik, although he had no operator's license, accompanied Hoska to Baltimore and brought the machine back to Dundalk. About 11 o'clock p. m. the defendant decided to go to his own shore. In the examination of the defendant he was asked:

"Q. Just tell the jury in your own way what happened after Mr. Rokos got in your machine, whether you had any conversation about driving these gentlemen out to the trolley line or taking them down to your shore on Middle river. A. Well, they called for me, and I was sitting at the table there, with the rest of the fellows sitting down, and they said, 'Emil, let's go,' and they went out, and they were all in the machine. I did not know he was in there. I got in the car, and Willie was at the wheel. I said 'Willie, let me get there and drive out.' He said 'I can drive.' I said, 'I know; but go ahead and let me get there.'

Q. What conversation did you have with these gentlemen who were in the car in reference to how they could get back to Baltimore? A. Well, I mentioned it to them some time before, 'I am going to make a trip down to my shore at Middle river for some stuff I have down there,' and I suggested, 'I am going down, and if you fellows don't want to go down, I will take you to the trolley line and you get off.' I said, 'I am going down; if them tools lay out and open to the rain they will get ruined, and besides somebody may take them away from me.' And then they suggested, 'Well; we will go along.' I said, 'All right, and I bring them back.' My shore is about almost an hour's ride from the Dundalk shore. * * *

Q. Well, tell about that conversation, especially what Mr. Rokos said, if anything? A. They asked, 'Where are you going? and I said, 'I am going down to the shore,' and I said, 'If you fellows want to get off,' I said, 'All right, here is the car.' And they said, 'Oh, we will take the trip for curiosity to see how you are building at your place.' It was more curiosity than anything else. We got to my shore about 12 o'clock.

Q. And after you got there what did you do? A. I went there to look my tools over, gather up things, and they went around the place, and looked it over, and talked about the cheapness of lumber, and stuff that I bought--I bought a lot of stuff and they talked about it, and took a little time, and one said, 'Let's go.' I said, 'All right.' By the time I locked the doors, why they was gone out to the machine, and I got to the machine, and there was Willie and Havelick in the car. I gets in. I said, 'Willie, let me drive that machine.' 'Oh,' he said, 'I can drive; it will be all right.' Mr. Havelick said, 'Oh, let him alone; he is safe there.' And then, as he said that, Mr. Lehicka and Mr. Rokos came right along and sat down, and had to move back to let get back. They said, 'What is the trouble?' I said, 'Willie wants to drive.' They said, 'All right; let him drive.'

Q. Who said that? A. Mr. Rokos and Lehicka said, 'All right, let him go ahead.' We had to wedge together when they pushed over my feet. It was cramped; the car--the Ford sedan--was cramped, and you had to jerk over; the car is so small. I said, 'All right, but I don't feel that way.' They said, 'Oh, you drive plenty; he is all right, let him drive.' That was the whole situation of it."

On cross-examination the defendant said:

"When I got out to my machine to drive it from Dundalk shore to my shore Willie was at the wheel, and I told him to get away from it, and he let me drive. On the way back from my shore Willie got the wheel again, and that time I let him stay there. My only knowledge from personal observation of his experience was that one trip that he made that Sunday afternoon when he drove my machine from town down to the Dundalk shore, and I have heard him tell me many a time that he drive for a man at St. Helena. Before I left the Vacek shore to come home I did not ascertain from Vojik whether or not he had a license to drive a machine. I was figuring he is a competent driver and he should carry one. I didn't ask no questions. I was sitting on the right of Mr. Rokos in the back. Mr. Lehicka was sitting on my left side in the corner. * * * When I got in the machine Havelick was sitting beside Vojik, who was driving. I was the third one. I was talking to them about driving, and then Mr. Lehicka and Mr. Rokos got in right at one time, came right in the side. I do not know whether Rokos got in before Lehicka or not. They were both coming at one time, one right after the other. When I actually got to the machine, before I got in Rokos and Lehicka were coming from the shore end from the front around the construction. After I got in I had to wait. I don't think about a minute and a half or two.

Q. And the conversation you had was before Rokos and Lehicka got up there, wasn't it? You had your conversation about driving just as soon as you got there? A. When I was standing in the car they happened to come in, and had the conversation, and they said, 'What is the trouble?' and I told them, and they said, 'All right; let him drive.'

Q. Who said that? A. Mr. Rokos and Mr. Lehicka. Rokos first, and Lehicka with him.

Q. You mean to say you would not let Vojik drive the machine if your guests had not said so; is that so? A. I trusted my friends, because they knew he could drive as well as I did.

Q. Who trusted who? A. The guests trusted that he will drive, he will drive all right all right; they trusted him as well as I did, and thought he was a competent driver. That is what they said, 'Let him go ahead, he is all right,' because they knew he drove that evening, that afternoon.

Q. Didn't I understand you to say that when you got in the back of the machine and sat down it took Mr. Rokos and Mr. Lehicka about a minute and a half to come up? A. I was not sitting there; I was standing up inside the machine, talking to Willie, and when they just came in, then I had to move back and sit down.

Q. Why did you go in the back of the machine at all before you decided who was to drive the machine? A. He was in the machine.

Q. Who was in the machine? A. Mr. Willie and Havelick was in front. I said, 'Willie; let me get in there.' You have to crawl out that seat, and it is all cramped. And I said, 'Willie, let me get in there and drive.' Havelick said, 'It is all right; let him drive.'

Q. Who said that? A. Mr. Havelick.

Q. Rokos was not there at all? A. And then come Mr. Lehicka and Rokos in, and I had to move back and sit down. That is what I did. I had to sit back. And that is where they said, 'Oh, let him drive; you drive plenty,' and Lehicka said, and Mr. Rokos said, 'Now let him drive,' he said, 'You drive plenty; sit here with me.' Lehicka said, 'He is all right; he is pretty good driver.' And that was the whole situation.

Q. What did Rokos know about his driving? A. He knew he came back that afternoon."

The testimony of Vojik was that:

He went down to Dundalk shore about 1:30 or 2 o'clock in the afternoon on a street car; he did not go with Vacek or Rokos; he came back to town that afternoon in Vacek's automobile and drove it back to the shore. He knew Vacek well at that time; also knew Rokos. He was not a licensed chauffeur and never had a license. He had started the trip which ended in the accident from Vacek's shore; he did not know how far it was from the Dundalk shore; it would take about an hour to go there from Dundalk shore. When he left the Dundalk shore to go to Vacek's shore, he went in Vacek's machine, together with Vacek, Havelick, Rokos and Lehicka. Vacek drove the machine from Dundalk shore to his own shore, and during that trip he was sitting in front with Vacek, and the other three men were in the rear. They left Vacek's shore to come home about 12:30 or 1 o'clock in the morning; Rokos was in the back; the witness was behind the wheel. The brakes on the Ford sedan held all right; he had driven the car enough to know whether it was running all right or not, and it was in running condition; he did not know how old a Ford it was. When they started back from Vacek's shore, witness got in the car first and sat behind the wheel, the rest got in the back, Havelick in the front, and no more was said about it. "They let me

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