Webb-Pepploe v. Cooper

The plaintiff lived on the west side of Charles Street, between Overhill and Warrenton Roads, and was driven home at about half-past twelve in the morning of October 31st, 1928. The automobile drew up to the gutter on the east side of Charles Street and stopped about opposite the entrance to plaintiff's residence. He got out of the automobile, and his place on the right front seat was then taken by the father of the young woman who was driving; the door to the automobile was closed and, after they had said goodnight, the automobile left, with the plaintiff standing in the gutter on the east side of the street. The street at this point was thirty-four feet wide, and was a macadam roadway. It was a clear moonlight night, and the street lamps were burning. The plaintiff is sixty-nine years of age, and was an active man in excellent health, with good hearing and eyesight, and in the full possession of all his faculties, at the time of the wrong alleged. According to his own testimony, after the automobile had gone ten or fifteen feet northward, he went across the street, looked both north and south, and heard no signal and saw no automobile headlight, although he continued to look to his right and left as he crossed the street at an ordinary gait, when, in his own language, "All of a sudden — I must have been almost in my gutter — I couldn't have been very far away, and something struck me an awful blow, and I grabbed something and held on until it got so hot it burned me, and I had to let go. I don't know how long it was, but it was awful hot, and then I must have lost consciousness."

The plaintiff had been struck by the right front part of the automobile of the defendant, and, when it was brought to a stop, the plaintiff was lying on the ground between the gutter and the right back wheel of the automobile. None of the three parties who were in the automobile, in which the plaintiff had ridden from a business meeting to his home, saw what happened, and no eyewitness of the tragedy testified, except the defendant, and two young women who were driving north on Charles Street and saw what occurred. The testimony of the two disinterested witnesses was to the effect that the plaintiff began to walk across the street back of the automobile in which he had arrived, as it moved away from the gutter towards the line of travel of the northbound traffic, and, emerging from the line of the defendant's obstructed vision that was caused by the diagonal movement of the receding automobile, the plaintiff, when near the center line of the street, and as the defendant's automobile, which was being driven south on its side of the road, was almost in line with him, broke into a run and went directly in front of the approaching automobile, which immediately swerved to the right to avoid the collision and struck the plaintiff while making this movement. The defendant's testimony is that he did not see the plaintiff until within five or ten feet in front of defendant's automobile, when, from behind a northbound automobile, the plaintiff suddenly appeared, midway between the headlights on defendant's car, with legs apart as if in the act of running or jumping. The defendant immediately applied his brakes, turning to the right, and almost instantly struck the plaintiff. The automobile was brought to a stop about three feet from the cement gutter on the west side of the street.

The defendant's testimony submits a coherent theory of how the collision took place, but, in considering the demurrer to the evidence, this version must be rejected; and all the testimony and rational inferences which support the plaintiff's right to recover must be accepted. There is testimony on the record legally sufficient to establish that the defendant was driving at an excessive rate of speed at the time the plaintiff was injured, and that his brakes were not working properly, and that he did not sound his horn nor give any other audible signal of his approach. So, in the absence of some imprudent act of the plaintiff which is so distinct, prominent, and decisive that the common mind of reasonable persons would unequivocally declare it to be the negligent act without which the injury would not have been inflicted, the question of the plaintiff's right of recovery would not be one of law for the court, but an issue of fact for the jury.Ottenheimer v. Molohan, 146 Md. 175, 186.

The testimony of the plaintiff is that he looked to the north and to the south after the automobile from which he had alighted had gone ten or fifteen feet, and that he neither saw nor heard any approaching automobile. He then walked across the street, and, as he proceeded, he continued to look to the north and to the south, and he neither saw nor heard the approach of the automobile which struck him. So totally unaware was he of the presence of the automobile that he was unable to testify what struck him, although his own testimony is that from where he crossed he could see a mile to the north along the highway he was traversing.

The defendant was driving a Cadillac touring car with headlights brightly burning. The street was lighted by arc lights on either side, and it was a clear moonlight night. After the plaintiff crossed the center line of the street there was no automobile to obstruct his view, whose extent is clearly shown by the photographs offered in evidence. The automobile in which plaintiff had been riding was passed by defendant's near the parked plot bound by the intersecting lines where Charles Street, Greenway and St. Paul Streets unite. This was about 173 feet from where the plaintiff got out, so that this northbound automobile had proceeded about 158 feet after the plaintiff began to go across the street, which required four seconds at the highest rate of speed the driver testified the automobile was driven. In this four seconds the plaintiff had a full view to the north of the southbound automobile travel and, if walking at the slow rate of three miles an hour, the plaintiff at the end of the four seconds would have been half-way across the street when the defendant's automobile and the one in which the plaintiff had ridden passed each other at least 173 feet from the point of the accident. The driver of the northbound car estimated the speed of the defendant's car when it passed at over forty miles an hour. An opinion of the rate at which an automobile is moving under the circumstances obtaining at the time was no more than an estimate, and may have a large factor of error, although there may be no doubt, as in the instant case, that the speed was excessive. If, however, it be accepted that forty miles an hour was the rate, and that this speed was maintained, it would have taken three seconds for the automobile to have reached the point where the accident took place, so there were seven seconds in which the defendant's automobile was in sight. When, therefore, the plaintiff testified that he looked and did not see the brightly beaming headlights of the defendant's automobile on a clear moonlight night, when if he had looked he must have seen the rapidly approaching car at excessive speed in time to avoid the accident, the court will reject the testimony as unworthy of consideration. Sullivan v. Smith, 123 Md. 546, 556; Askin v.Moulton, 149 Md. 140, 143; Gitomir v. United Rys. Co.,157 Md. 464, 467. Under the circumstances but two alternatives are possible. The one is that the plaintiff either imprudently did not look when it was his duty to look; and the second is that, looking, he saw and then rashly adventured to make his passage in the face of its obvious peril. The plaintiff's attempt was all the more culpable because the statutory rule of the road was that vehicular traffic between street crossings shall have the right of way over pedestrians. Code, Supp. 1929, art. 56, sec. 209, p. 344; Buckey v. White, 137 Md. 124, 129. While this statutory provision is not alone sufficient to establish contributory negligence, as was decided in Nelson v. Seiler, 154 Md. 76 (compare Consol. Gas etc. Co. v. Rudiger, 151 Md. 226, 236), yet it serves to give character to the plaintiff's act and is a pregnant circumstance, because the statutory rule imposed upon such pedestrians an added degree of responsibility, and so, of care, in looking for approaching automobiles on that portion of the highway of cities and towns between intersecting streets. The statute is a legislative recognition of the danger of vehicular traffic to pedestrians in passing across the streets of cities and towns, and an effort to diminish the number of injuries and fatalities from this source by giving the pedestrian the right of way at street crossings in towns and cities, and by conferring upon vehicular traffic the right of way over pedestrians crossing such streets between the public crossings.

The automobile driver had the right to expect every pedestrian to yield him the right of way, but this did not relieve him of the obligation of using due care according to the circumstances. In the instant case the imminent peril to the plaintiff was the excessive speed at which the automobile was moving. The pedestrian had a right to base his movements upon the hypothesis that the approach of the automobile was at a rate within the law, only so long as he remained ignorant of its actual excessive speed of approach. Taxicab Co. v. Ottenritter, 151 Md. 525,532. The fact that the defendant was negligent does not relieve the plaintiff of his duty to use due care and caution nor relieve him of the consequences of his failure so to do. Glick v.Cumberland W. Elec. Ry. Co., 124 Md. 308, 319. Not only was the automobile visible, but, on testimony offered by the plaintiff, its approach at an excessive speed was apparent, so, if the plaintiff had looked before moving from his place of safety east of the center of the street, he would have seen not only the approaching automobile, but also its excessive and dangerous speed, in time to have avoided the accident by simply stopping and letting the automobile pass on its side of the road.Slaysman v. Gerst, 159 Md. 292; Colgate Co. v. United Rys.Co., 156 Md. 472, 475, 476, 477; Consol. Gas etc. Co. v.Rudiger, 151 Md. 226, 239; Fulton Building Co. v. Stichel,135 Md. 542, 549, 550; Washington, B. A.R. Co. v. State,140 Md. 115, 118; Baltimore Traction Co. v. Helms, 84 Md. 515, 524-526;Maryland Elec. Ry. Co. v. Beasley, 117 Md. 270, 279; Petersonv. Ballantine Sons, 205 N.Y. 29; Swetzoff v. O'Brien,226 Mass. 438; Moran v. Smith, 114 Me. 55.

The negligence of the plaintiff supervened and actually continued to the point of the collision, and so became a concurring proximate cause of his harm. Moreover, the plaintiff's default in failing to see, or in ignoring, the impending peril of going across the west half of the street in front of an automobile approaching at a visibly excessive speed, is so distinct, prominent, and decisive an act of contributory negligence as to afford no basis for ordinary minds to differ as to its nature and effect. It follows there was an error in the trial court's refusal to grant defendant's prayer taking the case from the jury on the ground of contributory negligence.

Judgment reversed without a new trial, with costs to theappellant.