Winner v. Linton
| Decision Date | 09 April 1913 |
| Citation | 87 A. 674,120 Md. 276 |
| Parties | WINNER v. LINTON. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.
Action by Marie Louise Linton, by Samuel T. Linton, her father and next friend, against Jacob L. Winner. Judgment for plaintiff and defendant appeals. Affirmed.
Robert R. Carman and Walter L. Clark, both of Baltimore, for appellant. William Colton, of Baltimore, for appellee.
The plaintiff, an infant, by her father and next friend, Samuel T. Linton, brought this suit in the court of common pleas of Baltimore against the defendant to recover for personal injuries sustained by her on the 23d day of October, 1910 while in the act of crossing North avenue at or about its intersection with Park avenue, public thoroughfares of Baltimore city, by reason of the negligence and want of care of the defendant in operating and running an automobile near the intersection of these avenues. At the trial of the case the court below, at the close of the plaintiff's testimony, there being no testimony offered upon the part of the defendant, granted the plaintiff's three prayers as offered and also granted the defendant's fifth and sixth prayers, but refused the defendant's first, second third, fourth, seventh, and eighth prayers.
The only exception presented by the record is to the ruling of the court upon the prayers and to the overruling of the defendant's special exceptions to the granting of the plaintiff's first and second prayers. The plaintiff recovered a verdict of $3,500, and, from the judgment entered on the verdict, this appeal has been taken.
The undisputed facts as testified to by the plaintiff's witnesses and upon which the decision of the case must turn are these:
The plaintiff testified that on the 23d of October, 1910, she returned to her home from the cemetery in Baltimore city on a car of the United Railways, and the car stopped at Park and North avenues; that it stopped on the far side of the crossing, and she got off the rear platform of the car; and that after she got off and down to the pavement she looked up the street to the right, to the west on North avenue, and saw no automobile and heard no horn or whistle, and as "I took two or three steps, I don't know whether I screamed or somebody else, I saw brass in front of me, and that is all I know." She did not remember what part of the car struck her, but it was her intention to make the pavement and go up the street. She testified on cross-examination that she had on a thin veil but her vision and hearing were good and had always been good; that she looked to her right, up to where the automobile came from, and did not see or hear a machine, and then she started for the pavement.
The witness Mapp, who had an uninterrupted view of the accident testified that at the time of the collision he was standing in Campbell's drug store on the corner, in the window, looking out; while sitting there, he saw the street car come down and stop on the far side; as the car stopped, the plaintiff got off and took two steps (that is, two steps after she reached the pavement). He saw the machine strike her, knocked her down, and threw her under the car, and she was jammed in between the front wheel on the left-hand side of the automobile going east. She was edged in between the front wheel, the lower part, and the engine on the front part of the car. The automobile dragged her at least half the length of a street car. The machine was then lifted, and she was taken up and carried into the drug store. He further testified that North avenue runs northwest and southeast and Park avenue runs pretty near north and south; and from the position that he occupied in the window he could easily see up North avenue to the west side of the street where the car stopped and where the accident occurred. Park avenue at that point is the average width of Baltimore street, but not as wide as North avenue; that the automobile was going east in the same direction with the street car, and when he first saw the machine it was "just a little above the west side of Park avenue," and it was at this time that the plaintiff alighted from the car. He saw the plaintiff look toward the machine when she got off the car and then started for the curb. When she got off she took one step and then made a look and then started to go forward because she could not go anywhere else, and the left wheel of the car hit her. This is the north side of the machine, the machine going east. He also testified that the machine was going much faster than the car, but even at that time, when the plaintiff was getting off on the far side of the street, the chauffeur, if he did not have time to stop his car, the width of Park avenue, he had ample means, as that street does not turn on an angle, to have swerved his car up Park avenue, which is an upgrade; that it could have been stopped the width of the street; and that would have been in time...
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