Vizzini v. Dopkin

• Decision Date: 06 June 1939
• Docket Number: 32.
• Citation: 6 A.2d 637,176 Md. 639
• Parties: VIZZINI v. DOPKIN.
• Court: Maryland Court of Appeals

6 A.2d 637

176 Md. 639

VIZZINI v. DOPKIN.

No. 32.

Court of Appeals of Maryland

June 6, 1939

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by Salvatore Vizzini against Lee L. Dopkin for injuries sustained by plaintiff, when he was struck by or collided with automobile driven by the defendant, while attempting to cross street. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

J Calvin Carney, of Baltimore (Preston A. Pairo, of Baltimore on the brief), for appellant.

G. C. A. Anderson, of Baltimore (Keech, Carman, Tucker & Anderson, of Baltimore, on the brief), for appellee.

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

SLOAN Judge.

On February 11th, 1938, the plaintiff, Salvatore Vizzini, then 77 years of age, about eight o'clock P.M., was walking across Park Heights Avenue from Ingleside Avenue, which intersects the easterly side of Park Heights Avenue, but does not cross it. He was on the west side of Park Heights Avenue when he was struck by or collided with the defendant Lee L. Dopkin's automobile. There is no clear statement from any of the witnesses as to how the accident happened. The plaintiff resided with a daughter on Ingleside Avenue, and when injured was going to visit a son, who lived on Park Heights Avenue. He said, 'When I arrived at the crossing, I turned to the left and to the right and saw a machine at Rogers Avenue stopped. I passed Park Heights Avenue, and I put my left foot on the sidewalk of Park Heights Avenue, and then I saw a machine right on top of me, and I fell on my face. * * * I didn't see it, because as soon as I was hit, I fell on my face.' At Rogers Avenue, which intersects Park Heights Avenue about 300 feet north of Ingleside Avenue, there is a traffic light which the plaintiff said he did not notice. There is a street light on the west side of Park Heights Avenue opposite the south end of Ingleside Avenue. This was the only testimony as to the accident offered by the plaintiff.

The defendant, Lee L. Dopkin, testified that he was driving south on Park Heights Avenue; with him were his wife, daughter, and three friends. He stopped at Rogers Avenue for the traffic light to turn to green. He said: 'After we had the right of way at Rogers Avenue, we proceeded south, slowly, and I would say it was approximately 300 feet from Rogers Avenue going due south, when I heard a noise in the back of my car, back of where I was driving, I immediately--in the car they said, 'I wonder what happened'. I pulled to the curb and at approximately three or four lengths, at the most, we stopped completely, and I went back to look, and when I got there, I found the man lying on his back * * * Parallel with the curb,' and possibly six inches from it. He was looking straight ahead, and did not see the man cross in front of him. The other occupants of the car corroborated the defendant. They all said they had just passed Ingleside Avenue when they heard the sound or thump on the right rear side of the car. The plaintiff testified that he was 'straight on Ingleside Avenue, crossing Park Heights Avenue', so that there was evidence that the accident occurred at an intersection within the decisions of this court, at which the pedestrian has the right of way. Code, Article 56, section 209, Act of 1929, ch. 224; York Ice Machinery Co. v. Sachs, 167 Md. 113, 173 A. 240; Brown v. Patterson, 141 Md. 293, 294, 118 A. 653; Buckey v. White, 137 Md. 124, 111 A. 777.

The witnesses all agree that it was raining, sleeting and freezing, and there was snow and ice on the ground, and one witness said 'Visibility not very good.'

The judgment being for the defendant, the plaintiff appeals.

The plaintiff's contentions are that the trial court erred in granting the defendant's second and fifth prayers. The second prayer is the common form of unavoidable accident prayer. While it has been approved in sone cases, it was said by this court in Paolini v. Western Mill & Lumber Corp., 165 Md. 45, 55, 166 A. 609, 613, where it was disapproved: 'Whether it should be granted in any case depends upon the facts of that case'. In Schapiro v Meyers, 160 Md. 208, 210, 153 A. 27, 28, which was a suit by a pedestrian for a crossing accident, we said, 'as such a coming together of a pedestrian and an automobile could under the circumstances, clearly have been avoided by care on one side or the other, plaintiff or defendant, the description of unavoidable accident appears to be inapplicable,...