Waltring v. James

• Decision Date: 16 June 1920
• Docket Number: 5.
• Citation: Waltring v. James, 136 Md. 406, 111 A. 125 (Md. 1920)
• Parties: WALTRING v. JAMES.
• Court: Maryland Court of Appeals

111 A. 125

136 Md. 406

WALTRING v. JAMES.

No. 5.

Court of Appeals of Maryland

June 16, 1920

Appeal from Circuit Court, Baltimore County; Allan McLane, Judge.

"To be officially reported."

Suit by Charles T. Waltring against Harry B. James. Judgment for defendant and plaintiff appeals. Reversed and remanded for new trial.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

A. F Brown, of Havre de Grace, and James J. Archer, of Bel Air (Elmer J. Cook, of Towson, on the brief), for appellant.

Philip H. Close, of Bel Air (T. Scott Offutt, of Towson, and S. A Williams, of Bel Air, on the brief), for appellee.

BRISCOE J.

The record in this case contains 16 bills of exceptions to the action of the court in its rulings upon the admissibility of testimony and upon the prayers reserved by the plaintiff at the trial in the court below.

The suit was brought by the appellant, the plaintiff below against the appellee, the defendant, in the circuit court for Harford county, but removed to the circuit court for Baltimore county, where, upon trial, a verdict was rendered in favor of the defendant, and from a judgment on this verdict the plaintiff has taken this appeal.

The plaintiff's declaration sets out the cause of action, and is as follows:

For that the defendant was the owner of an automobile which was so carelessly and negligently used and operated by the defendant, his agent or servant, on one of the public streets in the city of Havre de Grace, in said Harford county Maryland, at a highly excessive and unlawful rate of speed, and on the left of the center of the said public street, on or about the 18th day of April, 1918, so that in consequence thereof the said automobile of the defendant struck and seriously injured the plaintiff, who was lawfully crossing said street in the exercise of ordinary care, in consequence of which the plaintiff was thrown down and run over by said automobile, his right shoulder broken, his left shoulder blade broken, his nose smashed, his lung punctured, his face torn open and a portion of his scalp torn loose, and other parts of his body bruised and lacerated, so that he was seriously and permanently injured by reason of said physical injuries and shock caused thereby to his nervous system.

And the plaintiff claims therefor $30,000 damages; and hence brings this suit.

At the close of the testimony on the part of the plaintiff and the defendant the court below withdrew the case from the jury by granting the defendant's second prayer, which directed a verdict for the defendant upon the ground "that under the pleadings it appears from the uncontradicted evidence in the case that the negligence of the plaintiff directly contributed to the happening of the accident complained of and their verdict must be for the defendant."

The defendant's special exception to the plaintiff's first prayer was granted upon the ground there was no evidence in the case legally sufficient to support the hypothesis of the prayer, to wit, that the injury referred to in this prayer resulted directly from the want of ordinary care and prudence on the part of the driver of the defendant's automobile.

The rules of law bearing upon negligence and contributory negligence have so often and recently been announced by this court in similar cases to the one now before us that a mere reference to a few of the cases should be sufficient to establish the general rule by which questions of this character must be determined. Burke v. Baltimore City, 127 Md. 560, 96 A. 693; Hempel v. Hall, 136 Md. 174, 110 A. 210; Central Railroad v. Coleman, 80 Md. 337, 30 A. 918; Mayor & City Council of Baltimore v. Mattern, 133 Md. 16, 104 A. 478.

In McNab v. United Rys. Co., 94 Md. 724, 51 A. 421, this court said:

"Contributory negligence is simply negligence, and is, like primary negligence, relative, and not absolute, and, being relative, it is dependent on the peculiar circumstances of each particular case. There are many acts which would not be negligent when done under some conditions, though the same acts if done under different conditions might be highly negligent. And this is equally true of contributory negligence. So, ultimately, in every case of this character it becomes necessary to view the entire surroundings to determine whether either primary or contributory negligence has been established."

As the action and ruling of the court in this case in granting the defendant's prayer, directing a verdict for the defendant, presents the principal and important question in the case, it will be considered by us before passing upon the questions raised by the exceptions to the rulings of the court upon evidence.

The material facts of the case are these: The plaintiff was a resident of Louisville, Ky., and on the day of the accident was attending the races at Havre de Grace, Harford county. He was returning from the race track to the station of the Pennsylvania Railroad at Havre de Grace, a distance of about a mile and a quarter, to take the train to Baltimore, and while crossing the driveway leading up to the station was struck by the defendant's automobile, before reaching the station, which was engaged in transporting passengers between the race track and the station. The automobile was a seven-passenger Studebaker, owned by the defendant and in charge of a chauffeur, hauling passengers for hire between the race track and the railroad station, and was approaching the station at the time of the accident with a load of passengers.

The location of the station, the driveway, and the streets is shown upon a drawing set out in the record, and it appears therefrom that the plaintiff was struck while proceeding to cross the road or driveway, which was about 25 feet in width and leading up to the station.

The plaintiff testified that on the day of the accident he walked from the race track toward the Pennsylvania Railroad station in Havre de Grace, after the races, and that he walked down this path "A and B," toward the railroad station.

"Q. When you got to the point 'B' tell us what you did? A. When I came down this pathway I was speaking with a friend of mine. When we came here (indicating the intersection of the path with the roadway) I looked down this way for automobiles, as I always do, and looked this way (indicating). I didn't stop, however; I walked slowly and looked down, looking this way. I looked down the street this way, the full length of the street, to this turn here (indicating). I looked down to it; I was looking right down at it; and I looked down the street like that (indicating), straight ahead like that (indicating). There was no machine, diagonally across, looking to my right. I don't remember ever getting over that road; I don't remember any impact of any machine, or anything. When I came to at the hospital I didn't know what had happened to me. They told me I had an automobile accident. I said where and how. I didn't know I was in the hospital; I knew nothing." He also testified that he did not see the machine at the time of the accident, nor hear any horn blown or any warning given by the automobile that hit him.

The witness Hayes, who walked with the plaintiff up the path across the lawn towards the station, and crossed the driveway in front of the station. testified in part as follows:

That as they approached the driveway he looked very carefully down the road to the intersection of Juniata street, and saw no automobiles on the road, and then proceeded to cross the driveway. Q. What happened, if anything? A. Well, as we got to the other side, I stepped off the road and turned quickly, and this car was going over Mr. Waltring. I could just see the front wheel falling off his body, and the back wheel proceeding to go over. It slowed up and went over, and as it went over it went on further down the road. Q. You were walking in front of him, but close enough to carry on a conversation? A. Exactly. Q. Had you or not seen the automobile before it struck him? A. I never saw it. Q. Can you say about how long it took you to walk across that driveway from where you say you looked when you stepped off the path until you saw Mr. Waltring under the machine? Can you state how long it took you and how wide that driveway is? A. Well, I should say the driveway would be 25 feet, according to the plat, and it took between five and six seconds to walk across, that he heard no horn blown, and he would have heard it if it had been blown, and that he did not see the automobile until after it had struck the plaintiff and was passing over his body.

The witness Cosgrove, a special officer of the Pennsylvania Railroad, who was at the station and saw the accident, testified in part:

"As I was standing there I saw these machines coming from this course here up the road and turn into the driveway to the station, and under my range of view there were three machines coming up here, and one shot out from the back of the other two and came up here (indicating), and struck this man and knocked him about six feet from the machine, and fell opposite from the machine on the left side, and the machine struck him on this side (indicating), the left front wheel, and rolled him down on his face, and he laid there with both hands out that way (indicating), and the blood gushing from his face, and I ran after the machine right here and six or seven men jumped out, and when I got up to the machine the man who

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