Wagner v. Page
| Decision Date | 20 May 1941 |
| Docket Number | 22,23. |
| Parties | WAGNER et al. v. PAGE. FRANKLIN v. SAME. |
| Court | Maryland Court of Appeals |
Appeals from Superior Court of Baltimore City; Emory H. Niles, Judge.
Action by Nathaniel B. Page, Jr., against Harry M. Wagner and another, partners, doing business as Kuhfuss Bakeries, and against Morris W. Franklin, individually and doing business as Admiral Taxi Service, for personal injuries. Judgment for plaintiff, and defendants appeal.
Reversed without new trial as to defendant partners, and reversed and remanded for new trial as to defendant Franklin.
Wendell D. Allen, of Baltimore (Armstrong, Machen & Allen Alexander Gordon, III, and G. Dudley Iverson, all of Baltimore, on the brief), for appellants in No. 22.
Argued together by Joseph Sherbow, of Baltimore (S. Herbert Harris and Solomon Liss, both of Baltimore, on the brief), for appellant in No. 23.
William Page Dame, Jr., of Baltimore, for appellee in both cases.
Argued before BOND, C.J., and SLOAN, JOHNSON, DELAPLAINE, COLLINS and FORSYTHE, JJ.
This record contains two appeals from a judgment obtained by Nathaniel B. Page, Jr., in the Superior Court of Baltimore City. No. 22 is that of Harry M. Wagner and Carl H. Kuhfuss, partners trading as Kuhfuss Bakeries, while No. 23 is an appeal by Morris W. Franklin, individually and trading as Admiral Taxi Service.
Appellants were sued jointly by appellee, a passenger in the taxicab of the appellant in No. 23, for personal injuries sustained by him June 30, 1940, at which time while riding in an Admiral Taxicab that vehicle collided with the bakery truck of Wagner and Kuhfuss at the intersection of Linden Avenue with Dolphin Street in Baltimore City. The only exception contained in the record relates to the Court's action with reference to its rulings upon the prayers, but before discussing them, it is necessary to refer to the evidence.
Immediately prior to his injuries appellee, 27 years of age, resided at Chevy Chase, Maryland, but for some time had been employed by an automobile concern at Ardmore, Pennsylvania. From Ardmore on the day preceding his injuries he went to Washington, met Edward M. Smith, a friend of long standing, who lived in Arlington, Virginia, and together they proceeded to Annapolis shortly before midnight in the automobile of Page, stopped at Carvel Hall and stayed with friends for an hour or so, next driving to Baltimore, arriving after midnight. They went to Childs Restaurant for food and being absorbed in the company of each other decided to ride around Baltimore and talk. Inasmuch as they did not known much about the city they parked the automobile, hailed a taxicab and requested to be driven around the city, preferably around some park. Smith occupied the rear seat of the cab, while Page sat on the front seat with the operator, half-way facing the rear seat where his friend sat. While the cab was proceeding northerly on Linden Avenue, and according to Page and Smith, after it had entered the intersection of Linden Avenue and Dolphin Street, which intersects Linden Avenue at approximately right angles, it was struck by a truck of appellants' in No. 22, which was proceeding westerly. The impact was of such force as to throw appellee through the cab window, and shortly thereafter he was found unconscious beneath the runing board of one of the vehicles. For several days he remained in the hospital to which he was taken, suffered from concussion of the brain, a discated clavicle and injuries to his ribs, and after being discharged from the hospital he was for some time unable to resume his regular employment.
According to many witnesses the collision took place at the center of the intersection, and near that point Dolphin Street is twenty-seven feet in width between curbs, while Linden Avenue is an equal distance in width.
The driver of the cab testified that when he arrived at Dolphin Street, the bakery truck was so far down Dolphin Street to his right as to convince him that he had plenty of opportunity to cross the intersection, proceeding to cross which, however, he found the bakery truck upon him, and in an effort to avoid a collision swerved the taxicab to the left, but nevertheless collided with the bakery truck, while for the driver of the latter, it is contended, and was testified below, that as he approached Linden Avenue the cab was so far to the left as to cause him no apprehension whatever of a collision, but in trying to cross Linden Avenue he realized a collision was inevitable, and at that time did all within his power to prevent one. In addition appellants in No. 22 rely upon the provision of Code, Article 56, Section 235, that 'all vehicles shall * * * give right of way to those approaching from the right.'
It was stipulated at the trial that the accident took place in the early morning and at the intersection of Linden Avenue with Dolphin Street there was no automatic traffic signal in operation, nor was there any traffic officer on duty controlling traffic; that the weather was clear and the streets were dry; that immediately prior to the accident the bakery truck was being driven in a westerly direction on Dolphin Street by Martin C. Suter; further, that appellee was a passenger in the taxicab which was proceeding in a northerly direction on Linden Avenue and being driven by the agent and servant of its owner, Morris W. Franklin, trading as Admiral Taxi Service, and that both Linden Avenue and Dolphin Street were public highways of Baltimore City.
It thus appears from what has already been said that if the jurors believed the testimony of the taxi driver they could conceivably have found that he was not negligent, but that the collision was caused, not by his failure to estimate the distance from the intersection of the bakery truck approaching from his right, but by an incredible increase in speed on the part of that vehicle, while had they believed the testimony of the bakery truck driver they could have found that the collision was occasioned by the negligence of the taxi driver in failing to have his car under control at the intersection and yield the statutory right-of-way to the bakery truck coming from the right. The jurors also could have not illogically concluded that the negligence of both drivers contributed to cause the accident resulting in appellee's injuries, assuming agency on the part of the two drivers. It is undisputed that McGowan, driver of the taxicab, was at the time of the collision acting within the scope of his employment by Franklin, but strenuously urged by Kuhfuss Bakeries that Suter, operator of the bakery truck, was at that time in no way connected with their business, but was upon a venture of his own.
This contention was raised by Wagner and Kuhfuss, trading as Kuhfuss Bakeries, by three prayers offered at the close of the entire case. The first prayer sought an instructed verdict in their behalf, because of the absence of legally sufficient evidence entitling appellee to recover against them. The second concluded with a similar instruction upon the ground that the uncontradicted evidence in the case showed that while they owned the bakery truck, it also showed that the truck was at the time of the accident being operated by Suter for his sole use and not upon any business for them, while the third prayer, likewise seeking an instructed verdict for Kuhfuss Bakeries, was predicated upon the ground that the uncontradicted evidence showed the truck was being operated for the use and purpose of Suter and not under the control or jurisdiction of Kuhfuss Bakeries, the truck owners.
From related cases considered by this Court, it may be stated as a general rule that the operator of a motor vehicle is prima facie the agent and servant of is prima facie the agent and servant of its owner, but the presumption is a rebuttable one, and when uncontradicted and conclusive evidence is presented which shows that the driver was not in the service of the owner, it becomes the function of the trial court to declare the owner not liable. Phipps v. Milligan, 174 Md. 438, 199 A. 498; Pennsylvania R. R. Co. v. Lord, 159 Md. 518, 526, 527, 151 A. 400; Wells v. Hecht Bros. & Co., 155 Md. 618, 142 A. 258; Pollock v. Watts, 142 Md. 403, 406, 121 A. 238; Dearholt Co. v. Merritt, 133 Md. 323, 329, 330, 105 A. 316; Debelius v. Benson & Co., 129 Md. 693, 100 A. 505; Symington v. Sipes, 121 Md. 313, 88 A. 134, 47 L.R.A.,N.S., 662; Myers v. Shipley, 140 Md. 380, 116 A. 645, 20 A.L.R. 1460; Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406, 56 A. 833.
The rule above announced finds support by the great weight of authority in this country, for as said in 5 Blashfield, Permanent Edition, § 3025:
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