York Ice Machinery Corp. v. Sachs

• Decision Date: 12 June 1934
• Docket Number: 23.
• Parties: YORK ICE MACHINERY CORPORATION v. SACHS.
• Court: Maryland Court of Appeals

173 A. 240

167 Md. 113

YORK ICE MACHINERY CORPORATION v. SACHS.

No. 23.

Court of Appeals of Maryland

June 12, 1934

Appeal from Baltimore City Court; Samuel K. Dennis, Judge.

Action by Lydia Sachs, a minor, by Louis Sachs, her father and next friend, against the York Ice Machinery Corporation. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Where child is so young as not to be able to take care of itself parental neglect, resulting in injury to child, may be imputed to child. The prayers directed to be reported are as follows:

"First Instruction as Amended by the Court.

The Court instructs the Jury that under the laws of this State pedestrians have the right of way at street crossings or intersections not controlled by traffic signals or officers, and if the Jury shall find from the evidence in this case that at the time and place of the accident complained of, traffic was not controlled by traffic signals or traffic officers, and that the Plaintiff was crossing the intersection of Frederick Avenue and Longwood Street from the south to the north corner thereof at the usual pedestrian crossing, if the jury so find, and that the automobile of the Defendant was being driven by the Defendant's agent and chauffeur in an easterly direction on Frederick Avenue approaching the said intersection or crossing thereof with Longwood Street, if the Jury so find; and if the Jury further find that the Defendant's automobile struck and injured the infant Plaintiff while she was crossing the said Frederick Avenue at said intersection of Longwood Street, at the usual pedestrian crossing, and if the Jury further find that the infant Plaintiff was using ordinary care and prudence, and that the failure of the agent and chauffeur of the Defendant in operating the Defendant's automobile to give the right of way to the infant Plaintiff was the sole, direct and proximate cause of the infant Plaintiff's injury, then the verdict of the Jury must be for the Plaintiff."

"Court's Second Instruction.

The Court instructs the Jury that if they find from the evidence that the infant Plaintiff was injured as a result of being struck and knocked down by the automobile of the Defendant, and if the Jury further find that such injury might have been avoided by the exercise of ordinary care and prudence in the management and operation of Defendant's automobile, then, unless they find that the injury complained of resulted from want of such care and prudence on the part of the infant Plaintiff as ought, under all the circumstances, to have been reasonably expected from one of her age and intelligence, the verdict of the Jury must be for the infant Plaintiff."

"Defendant's Eighth Prayer.

The Court instructs the Jury that if they find from the evidence that the injuries complained of resulted from an unavoidable accident unmixed with negligence on the part of either the Equitable Plaintiff or the agent and servant of the Defendant, then the verdict must be for the Defendant; and by unavoidable accident is meant an accident which could not have been foreseen by vigilance, care and attention."

"Defendant's Sixth Prayer as Amended by the Court.

The Jury are instructed that under the automobile laws of Maryland, all motor vehicles have the right of way over pedestrians between street intersections, (but the aforegoing statement does not mean that pedestrians are necessarily negligent in crossing streets diagonally or between intersections, but it means that they must merely be more careful to avoid being injured) and if the Jury believe from the evidence in this case that at the time of the accident complained of, the agent and servant of the Defendant was operating the Defendant's automobile in an Easterly direction on Frederick Avenue, between Longwood Street and Parksley Avenue, all public highways of Baltimore City, if the Jury so find, and that the Equitable Plaintiff was crossing Frederick Avenue from the South side to the North side thereof and between said Longwood Street and Parksley Avenue, if they so find; and if the Jury shall further find that immediately prior thereto and at the time of the accident complained of the agent and servant of the Defendant was driving the Defendant's automobile with ordinary care and caution and that the failure of the Equitable Plaintiff to yield the right of way to the Defendant's automobile caused the accident in this case, then the verdict must be for the Defendant."

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

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

Harry J. Green and Zanvyl Krieger, both of Baltimore (Weinberg & Sweeten, of Baltimore, on the brief), for appellee.

SLOAN Judge.

The appellee, Lydia Sachs (plaintiff), who sues by her father, and next friend, obtained a judgment against the appellant, defendant, the York Ice Machinery Corporation, for injuries sustained by her as a result of her having been struck by an automobile of the defendant.

There are three exceptions in the record, the first to the admission of a photograph of the scene of the accident, the second on the denial of a motion for a mistrial, and the third to the rulings adverse to the defendant on the prayers. As two of the rulings on the prayers were for an instructed verdict, one to the legal sufficiency of the plaintiff's evidence and the other on the conclusiveness of the plaintiff's contributory negligence, and these involve a consideration of all of the evidence, the rulings on the prayers will be first considered.

On November 11, 1932, the plaintiff was crossing from the south side of Frederick road, from the southeast corner of Longwood street and Frederick road, when she was struck by or collided with a car of the defendant, which was being driven by John J. Chiappy, an employee of the defendant, who was on his way from Washington to Baltimore. The collision happened at or near the center of the Frederick road, opposite or nearly opposite the intersection of Longwood street with the southerly side of Frederick road. Longwood street is not a through street, running into a dead end at Mount Olivet Cemetery, which binds on the northerly side of Frederick road for several blocks. According to the decision in Buckey v. White, 137 Md. 124, 111 A. 777, it is an intersection within the meaning of the rule as to the respective rights of pedestrians and vehicles at street or road crossings. The accident happened about 6:30 in the evening. It was dark, but it was a clear night. The automobile lights were on and the street lighted. The defendant's employee testified that he had a clear view in front of him. But that suggests one of the difficulties or dangers of night driving and that is, that a clear view is limited to the path of the rays of the headlights. From either side, even on well lighted streets, the view is more or less obscured and there is always the danger of pedestrians, unobserved, coming into the path of an automobile, and, because of the limited range of a driver's view at night, it behooves him to be more careful, especially as he approaches street intersections. The advantage at night is with the pedestrian, for he can see the headlights easier than the driver can see him.

The plaintiff, a child of six at the time of the accident, was accompanied by a girl of ten. They started across the Frederick road from the south side at its intersection with Longwood street, to meet the older girl's mother, who was coming home on a westbound street car. The companion, Eleanor Chaillou, testified that she had just put her "foot on the curb" on the north side of the street when she "heard the screeching of brakes," when she "turned around and seen the left front bumper throw Lydia forward, side forward." When struck by the automobile, she was "in the middle of the two car tracks." On cross-examination she said that when she (plaintiff) was picked up by "the man that hit her" she was "over in the other car track," "closer to" her than to the automobile. On redirect examination, asked what she meant by the other car track, she said the one "closer to the cemetery." She said before she started across the street she went "to the end of the curb" and started to cross the street "on the corner." The plaintiff herself was not at all clear or certain how far she had progressed across the street when she collided with the automobile, leaving her companion's testimony as the only evidence presented by her of the location, except that when Eleanor Chaillou asked the plaintiff to cross the street to meet Eleanor's mother she was "right on the corner." The plaintiff, asked on cross-examination whether she came from behind any car or any automobile, said, "No, I went across on the corner." "Q. Went across right on the corner? A. Yes."

The plaintiff testified that she looked to her right and left before crossing the street and saw a street car "down by the bend" coming from her right and an automobile "at the end of the cemetery wall," at which there is a gasoline station, said by Eleanor Chaillou to be "a block away." Eleanor also said she looked both ways and saw the automobile to her left at the gasoline station but did not see a street car. The street car did not figure in the accident and the other girl was probably right when she said she looked to the right and did not see a street car. The children were, according to their testimony, exercising the degree of care required before attempting to cross Frederick road. Merrifield v. C. Hoffberger Co., 147 Md. 134, 140, 127 A. 500; Taxicab Co. v. Ottenritter, 151 Md. 525, 530, 135 A. 587.

John J Chiappy, employed by the defendant as a...