Yockel v. Gerstadt

• Decision Date: 11 January 1928
• Docket Number: 60.
• Citation: 140 A. 40,154 Md. 188
• Parties: YOCKEL v. GERSTADT.
• Court: Maryland Court of Appeals

140 A. 40

154 Md. 188

YOCKEL v. GERSTADT.

No. 60.

Court of Appeals of Maryland

January 11, 1928

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Action by Howard Yockel, an infant, by John Yockel, his father and next friend, against Nels Gerstadt. Judgment for defendant and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

J. Paul Schmidt, of Baltimore (Isaac Lobe Straus and Avrum K. Rifman both of Baltimore, on the brief), for appellant.

Walter V. Harrison, of Baltimore, for appellee.

DIGGES J.

The plaintiff below (appellant here) sued the defendant (appellee) for damages arising from injuries sustained by him alleged to have been caused by the negligence of the defendant. At the close of the plaintiff's case the defendant offered a number of prayers which the court granted, the effect of granting any one of which was to direct a verdict for the defendant. Under these instructions the jury rendered a verdict for the defendant, upon which verdict judgment was entered in favor of the defendant for costs. From that judgment the appeal here was taken.

In the view we take of the case, it is unnecessary to discuss the action of the court in respect to each one of these prayers, for the reason that, in our opinion, the defendant's prayer which instructed a verdict in his favor because of the contributory negligence of the plaintiff was properly granted. No absolute rule as to what constitutes contributory negligence can be promulgated which would be applicable to all cases, because it, like primary negligence, is relative and not absolute, and being relative, it necessarily depends upon the particular circumstances of each case. Siejak v. United Rys. Co., 135 Md. 367, 109 A. 107; Ches. & Pot. Tel. Co. v. Merriken, 147 Md. 572, 128 A. 277, 41 A. L. R. 763. While this is true, this court has repeatedly and uniformly held that to constitute contributory negligence as a matter of law, the negligent act of the plaintiff relied on must be prominent, decisive, and one about which ordinary minds would not differ in declaring it to be negligence. The act must present such features of negligence as to leave no opportunity for difference of opinion in the minds of ordinarily prudent men as to its imprudence. Merrifield v. Hoffberger, 147 Md. 134, 127 A. 500; B. & O. R. R. Co. v. Hendricks, 104 Md. 84, 64 A. 304; Cooke v. Traction Co., 80 Md. 558, 31 A. 327; Taxicab Co. v. Emanuel, 125 Md. 246, 93 A. 807; Delmar v. Venables, 125 Md. 471, 94 A. 89; Balt. Asphalt Block & Tile Co. v. Klopper (Jan. term, 1927) 137 A. 347; Md. Ice Cream Co. v. Woodburn, 133 Md. 295, 105 A. 269, and many others which might be cited. The evidence on behalf of the plaintiff in this case as to this point consists of his own testimony and that of one other witness, Klotz, a workman on the state road.

In determining this question, as was said in the case of Merrifield v. Hoffberger, supra, "we are bound to take that evidence as being true, to assume all legitimate inferences deducible therefrom, and place upon it that construction which is most favorable to the plaintiff's right of recovery." Considering the testimony in this case in the light of that rule, the question is, Does it show such a distinct, prominent, and decisive act of negligence on the part of the plaintiff, upon which there could be no difference of opinion in the minds of ordinarily prudent and intelligent men? We think it does. The testimony discloses that the appellee was the owner of a 1-ton truck, which on March 23, 1925, was loaded beyond its capacity and was being driven by Parkes, an employee of and accompanied by the appellee, along the state highway, in Anne Arundel County. While proceeding south and going down hill, the brakes failed to hold, resulting in the truck running into a stump along the side of the road and overturning, so that the body of the truck rested upon the contents, with the wheels in the air. From some cause not clearly shown, a fire started in the truck, either before or immediately after its upset, and the upsetting of the truck and the attendant fire were responsible for the gathering of a crowd consisting of from 20 to 30 persons. After the truck had been in this position and on fire for about 15 minutes, the plaintiff, driving an automobile and traveling north, approached the point along the road where the truck lay. When he got about opposite the burning truck, according to his testimony, he was hailed by several persons, two of whom were the appellee and Klotz; he stopped his automobile about 50 feet north of the truck, and got out to give assistance, joining the crowd in the vicinity of the truck. He further testified that he was asked by Klotz to get the license number, and while standing 24 feet away, calling off the license numbers, the gasoline tank on the truck exploded, causing the injury for which he seeks damages; that nothing was said to him by the owner or driver of the machine about its dangerous condition; that he saw fire on the truck, but not at the gasoline tank; that some of the crowd were standing farther away and some closer than himself. The plaintiff's other witness, Klotz, testified that the plaintiff passed the burning truck, stopped his automobile 30 or 40 feet beyond, got out and ran back to the crowd; that he did not hear any warning given by the driver or owner of the truck; that there were lots of people around; that "it was pretty the way the truck was burning; for Benfield, that was something new and interesting." This witness, on cross-examination, testified:

"Q. When the boy drove up there were about 20 or 30 people around? A. Yes.

Q. And there was a big fire on the truck? A. Certainly, yes.

Q. Did you see the fire? A. Wasn't I there?

Q. And these 20 or 30 people were standing there watching the fire? A. Yes; they were standing around looking on.

Q. And the boy drove up past the truck? A. No; he stopped just short on the other side. Yes; he passed the truck, but the truck wasn't burning yet. The explosion hadn't taken place yet.

Q. But the truck was burning when he passed by in his automobile? A. Yes; why, of course, it was burning then, but the explosion had not taken place.

Q. How high were the flames?

The Court: That is when the boy passed. A. Oh, quite low. The flames were quite low, say, about a yard from the ground, when the boy passed by, but after the explosion then they burned well.

Q. And the boy passed by and stopped his automobile? A. At the bridge.

Q. Then he walked back to look at the fire? A. Yes; he ran back.

Q. How long was he standing near the truck before the explosion took place? A. Why, about 15 or 20 minutes.

Q. He was standing there about 15 or 20 minutes? A. Yes; he was standing there about 15 or 20 minutes on the cement--on the gangway.

Q. The truck was burning all the time? A. Yes, sir."

In the recent case of Texas Co. v. W. B. & A. R. R., 147 Md. 167, 127 A. 752, 40 A. L. R. 495, in passing upon a prayer withdrawing the case from the consideration of the jury on the ground of contributory negligence, ...