Jackson v. Forwood , 186 Md. 379 ( 1946 )

A pedestrian plaintiff, in a suit for personal injuries against the operator and the owner of a taxicab, appeals from a judgmentn.o.v., entered after a jury had disagreed. The facts in the case are fully set out in appellant's brief, and as this statement is accepted by the appellees, we quote the parts of it pertinent to the issue before us: "On the night of November 23, 1943, at about 1 o'clock, Blanche O. Jackson, the appellant, aged thirty-nine years, was returning home from work at a war plant in a public passenger bus northbound on U.S. Route 222. After alighting from it at St. Marks Road, on which she lived, near Perryville, she was hit by the oncoming taxicab driven and owned by the appellees, Richard A. Grieninger and Walter F. Forwood, respectively, after she had walked past the front of the bus toward the west side of the road. It was a clear, dark night and the road was dry. Mr. Yates, the driver, stopped the bus on U.S. Route 222, facing north, close to its right shoulder with its front near the north side of St. Marks Road. This route was a boulevard highway with a macadamized surface twenty-two feet wide, and the posted Victory Speed limit was thirty-five miles an hour. Its point of origin was U.S. Route 40 at Perryville and it ran northerly to Bainbridge Naval Station, Port Deposit, and beyond. The road was straight and there was a clear view of the intersection for 1,500 feet north of it. From that point the downgrade to within 800 feet of the intersection was 3 to 5 per cent. and for the remaining distance 1 1/2 to 2 per cent. St. Marks Road had a graveled surface and intersected Route 222 from the west at less than a right angle but did not extend beyond it. Mrs. Boyd, who was also a passenger, and the appellant, in that order, alighted at the right front door of the bus and walked five feet forward on the narrow graveled shoulder intending to cross the highway in front of the standing bus. When at its right front headlight the appellant looked to the right and saw the headlights of the appellees' car approaching about 400 feet away to the north. Because the headlights of the approaching taxicab seemed so far away the appellant thought she had sufficient time to walk to the other side, she started to cross the road westerly in front of and to the left of the bus, preceded by Mrs. Boyd by three or four feet. After the appellant had cleared the bus she looked to her left for traffic and saw none and while proceeding across looked again to her right. The car, she said, bore down on her with such speed that she could not get out of its way. She was about two-thirds across the road or at about the middle of the southbound traffic lane, having walked fifteen or sixteen feet, when she was hit by the front of the oncoming southbound taxicab."

The defendants, at the conclusion of the whole case, offered two prayers for a directed verdict. The first related to their primary negligence, and the second to the contributory negligence of the plaintiff. Both prayers were rejected, and after the jury disagreed, a motion for a judgment n.o.v. was filed under the provisions of Trial Rule 8 (a), Rules of Practice and Procedure, Pt. 3, Subd. 3. This brings up both questions, primary negligence and contributory negligence.

The driver of the taxicab was on a boulevard highway, and his lights were on; but he said that when he was just getting ready to pass the bus, the lights of the latter were so blinding that he could not see "right at that point" until he got there. He said he was about twenty or thirty feet away from the bus when it blinded him the worst, and that is when he slowed up. But he did not apply his brakes until he saw the object in front of him, which turned out to be the appellant. At that time he was about ten or twelve feet from her. The evidence was that the skid marks caused by the brakes on the taxicab extended for over sixty feet. The officer said that he stepped them off and they were between sixty and sixty-five feet. The taxi driver said that he was only going fifteen to twenty miles an hour, but the length of the skid marks indicated a greater speed than that. The driver himself said he measured the marks the morning after the accident with a tape measure, and they were then forty-five feet three inches. Under this testimony, we think there could be drawn a reasonable inference that the driver did not have his car under control when he approached the bus with its blinding lights shining directly at him. Such an inference would justify the submission of the case to the jury on the question of the primary negligence of the defendants.

The motion for judgment n.o.v. was granted by the trial court on the ground of contributory negligence. If the appellant's negligence directly contributed to the happening of the accident, the negligence of the defendant as a contributing factor is immaterial. Campbell Sons v. United Railways, 160 Md. 647,154 A. 552; National Hauling Contractors Company v. BaltimoreTransit Company, 185 Md. 158, 44 A.2d 450. It is essential, therefore, to examine the testimony as to the appellant's actions, in order to determine whether it shows that she was also guilty of negligence.

The law of contributory negligence is well settled. It is ordinarily a question for the jury, but where the facts are undisputed, and are open to but one inference, it is for the court to decide whether such facts show contributory negligence as a matter of law. National Hauling ContractorsCompany v. Baltimore Transit Company, supra, and cases there cited.

In determining whether the facts justify a holding that the plaintiff is guilty of contributory negligence as a matter of law, the test is also well settled. In the case of Campbell Sons v. United Railways, 160 Md. 647, 154 A. 552, 553, it was said: "The formula long employed in this State to test the existence of contributory negligence as a matter of law is that the act to which that quality is ascribed must present some feature of reckless inattention or indifference so prominent and decisive in character that no room is left for ordinary minds to differ as to its imprudence."

In the case before us, we have the testimony of the plaintiff as to her actions after she left the bus until the moment she was struck.

"Q. Then tell what happened? A. Mrs. Boyd got out first and I got out right behind her, and we came around the bus to the right front headlight, and when I looked up the road towards Post Deposit, I seen this car approaching.

"Q. Where were you then? A. At the right front headlight of the bus, and I looked up the road.

"Q. Where did you get off; was it on the improved section of the road or the shoulder? A. I got off on the shoulder.

"Q. How close was the bus parked to the shoulder? A. Right close.

"Q. And the shoulder was composed of what kind of material. A. Gravel.

"Q. And you got off on the gravel and walked up to the right front of the bus? A. Yes, sir.

"Q. Then you looked where? A. To the right.

"Q. Which direction would that be? A. Towards Port Deposit.

"Q. Did you see anything? A. I seen a car coming down the road, which looked to be above Torbert's Store, but I interceded (proceeded) on across.

"Q. Do you know how far it was away; Torbert's Store? A. Well, I imagine it could be about 400 feet up the road.

"Q. This car was just north of that? A. Just north of that, yes sir. I started on across the road and when I got to the left side of the bus, I looked to the left for traffic coming the other way, and seen none, and then I looked to my right. I had interceded (proceeded) across a little further, and when I did, the car was bearing down on me with such speed I couldn't get out of his road.

"Q. Then you turned and looked to the right, and the car was bearing down on you? A. Yes, sir.

"Q. Did it hit you? A. Yes, sir, it did.

"Q. You know where you were, what portion of the road you were on when you were struck? A. Right about the center of the south lane.

"Q. How far would that be across the road from where you started? A. About two-thirds of the way across the road.

"Q. After you were hit, you remember anything? A. No. sir, I do not."

This is all the testimony in the case which shows what the plaintiff did after she had reached the left front of the bus. No other witness testified to any different action by her, and therefore we must accept her testimony for the purpose of this appeal as undisputed. So considered, it shows that when she was in the right front of the bus she saw a car approaching 400 feet away, running in that part of the road which she had to cross. She then walked across the front of the bus, looked to her left, but kept on walking, and when she again looked to her right, she was in the path of the car that she had seen, and it was so close to her that she could not get out of the way. The court can reach but one conclusion from these facts. It is that her actions contributed directly to the accident. Therefore, under the law she cannot recover, unless the defendants had the last clear chance to avoid the accident, and did not utilize it.

The appellant relies strongly upon the recent case ofCrunkilton v. Hook, 185 Md. 1, 42 A.2d 517. In that case we held that the contributory negligence of the plaintiff was a question for the jury. But there the facts were quite different, and the case is easily distinguished from the one now before us. The plaintiff, in that case, was not injured on a boulevard highway. She was in a cross-walk which the police department had plainly marked and designated in the middle of a block. There was some conflict in the plaintiff's testimony whether she had crossed over the white line in the middle of the street when she was struck, although she claimed it was still in front of her. After the accident the plaintiff was found lying on the center line, and there was evidence that the driver of the car which injured the plaintiff had crossed the white line and had struck her while he was partly on the wrong side of the street. In the case before us, the driver was in his own lane on a boulevard highway, and the evidence is clear and uncontradicted that the accident took place in about the middle of that lane after the appellant had left her place of safety and walked in front of the oncoming car. A consideration of the facts in each case shows clearly the distinction between them. In the Crunkilton case the evidence was such that rational minds might differ whether the plaintiff had been guilty of negligence directly contributing to the accident. In the case before us, no other reasonable inference can be drawn except that the appellant's actions did contribute to the unfortunate result.

We are unable to find, in the case, any evidence to warrant the application of the last clear chance doctrine. The driver of the taxicab said that he did not see the appellant until he was within ten or twelve feet from her. Then, from all the testimony in the case, he applied his brakes with great force, but this did not stop the car. No evidence was offered to show that the driver could have swerved to either side in the narrow road after he saw the appellant, and could thereby have avoided hitting her. What, if anything, he could have done, is, in view of the evidence, mere speculation. There is no particle of proof to indicate that the driver of the taxicab was negligent in anything he did after he saw the plaintiff in front of his car. And the doctrine of last clear chance can never be invoked when the plaintiff's own act is the last negligent act. McNabb v. United Railways, 94 Md. 719,51 A. 421; United Railways v. Sherwood Bros., 161 Md. 304,157 A. 280; National Hauling Contractors Co. v. Baltimore TransitCompany, supra.

As we find no error in the ruling of the majority of the trial court, the judgment will be affirmed.

Judgment affirmed, with costs.