State Ex Rel. Stehley v. Belle Isle Cab Co.

71 A.2d 435, 194 Md. 550

• Court: Court of Appeals of Maryland
• Decided: October 1, 1989
• Docket: [No. 89, October Term, 1949.]
• Status: Published

Opinions

Marbury, C. J.,

delivered the opinion of the Court.

The accident, from which this case arose, took place on the morning of September 24, 1948, about 6:15 a.m., at the intersection of North and Pennsylvania Avenues in the City of Baltimore. The deceased, Alexander Stehley, was a 59 year old employee of the Baltimore & Ohio Railroad. He lived in Forest Park and worked at the Mt. Clare Shops. To reach his place of work it was his custom to leave home at 5:50 a.m., take a street car at Belle and Garrison Avenues and then, at North and Pennsylvania Avenues, transfer to a street car going south on Pennsylvania Avenue. On the morning of his death he left for work at his usual time. He alighted from a street car on the safety zone at the southwest corner of North and Pennsylvania Avenues and then started to cross towards the northwest corner of North and Pennsylvania Avenues on a green traffic signal. He was apparently struck by an ice truck when he was about at the northernmost rail of the west bound car tracks on North Avenue, and then, subsequently, was run over by a taxi cab, and was found by a police officer under the latter at 6:24 a.m. He was, at that time, apparently dead. He had wounds and fractures of five ribs, compound fractures of the fibula and tibia on the right leg and fracture of the left leg just above the knee. At the time of the accident it was dark and the street lights were on. The suit was brought under the provisions of Article 67 of the Code, by the widow and sole dependant of the deceased against the operator, Abels, and the owner, Keim, of the ice truck, and against Belle Isle Cab Co., Inc. and its driver, Hopper. At the end of all of the testimony the court directed a verdict in favor of all defendants, and from the judgment entered on this verdict, this appeal comes here.

It is now agreed by the appellant that the ice truck was loaned by Keim to Abels for use solely on the business of the latter, and, therefore, the appeal from the judgment in favor of Keim is abandoned.

Pennsylvania Avenue does not cross North Avenue at right angles. The acute angle made by the crossing is at the southwest. The safety zone located near the corner, but not at it, is placed there in order to permit passengers from the street cars to alight in safety from cars passing along the street between this zone and the south sidewalk of North Avenue. There are no marked cross walks at the intersection, and in the absence of such marks, the pedestrian’s right of way across North Avenue is the space between the extension of the building line of Pennsylvania Avenue on the west and the extension of the curb line of that avenue on the east. Code, Article 66%, Section 2, sub-section (a) (9). Within this space pedestrians have the right of way, and outside of this space, vehicles have the right of way. Code, Article 66%, Section 181. When a pédestrian starts to cross a street, in such cross walk, with a green light, hé has the right to continue, even though the light changes during his progress (providing he is proceeding in the normal manner), and vehicles must give him the right of way. Shaivitz v. Etmanski, 164 Md. 125, 164 A. 169; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 29, 190 A. 768; Caryl v. Baltimore Transit Company, 190 Md. 162, 58 A. 2d 239. These questions become important in this case because, apparently, the light did change, and both the ice truck and the cab, which were going west on North Avenue, had the green light when they reached the intersection and started across.

There is some confusion in the testimony of the only person who saw the deceased start across the street. The safety platform is long enough to permit two or three cars to stop beside it. The deceased got off the first car, which was there, and a seventeen year old colored newsboy who was occupied in disposing of his papers, got off the second car. , This newsboy testified that the deceased left the safety platform, and, in one place in his testimony, there would seem to be an indication that he started across the street between the two street cars. However, in other parts of his testimony the witness said the deceased started across in front of the first car. As this is the testimony most favorable to the plaintiff, we take that testimony as the basis for our consideration of the case. This witness also made a mark on the blackboard to show the place where the deceased left the safety platform. This mark is not at the east end of the platform, but even if we assume that the deceased went to the east end, and from there started across the street to go to the northwest corner, where he would have to take his street car, he would still be several feet from the projection of the sidewalk when he reached the place where the evidence shows he was struck. There is, therefore, no evidence whatever that he was within the space where he would have the right of way with a green light. Billmeyer v. State, use of Whiteman, 192 Md. 419, 426, 64 A. 2d 755, 758.

The driver of the truck testified that he was driving west in the west-bound car tracks at a speed of about 25 to 80 miles an hour. The light was green when he reached Pennsylvania Avenue, remained green as he crossed it, and about 40 or 45 feet west of Pennsylvania Avenue a man darted out from the south side of North Avenue, running north. He was about three yards in from of him when he first saw him. He tried to avoid hitting him, and applied his brakes, but the man, according to him, tripped on the north rail and fell. The driver of the truck said he did not think he hit him, but the officer, who examined the truck, said there was a fresh rub mark on its right front wheel and also, on the top of the radiator, there was a fresh rub mark. The taxi cab was at the right and to the rear of the truck, proceeding in the same direction. The driver was looking ahead, and to the right to see if there were any passengers. He said that when he got into North Avenue, after crossing Pennsylvania Avenue, his headlights picked up the body of a man lying across the road. He was then 20 or 25 feet away. He put on his brakes, but skidded over to him and ran over him with the wheels of the cab. The truck at this time was about eight feet in front of him. The officer testified that there was a 42 foot skid mark beginning six feet west of the west curb line of Pennsylvania Avenue, and running up to the front wheels of the taxi cab, and underneath the taxi cab was the deceased. The right skid mark was thirteen feet eight inches south of the north curb line of North Avenue.

Assuming, as we must, that the truck did hit this man at or about the north rail of the west bound car tracks, which is the testimony most favorable to the plaintiff, the truck at that time had the right of way, as it was proceeding on a green light. There was, as we have stated, an obligation on the truck driver to give that right of way to any person who had already started to cross in the pedestrian cross walk, but that obligation only extends to those pedestrians who are using the defined right of way to cross the street. Chasanow v. Smouse, 168 Md. 629, 632, 178 A. 846; Legum v. State, Use of Moran, 167 Md. 339, 173 A. 565. The deceased had not yet reached the cross walk, and there is no evidence that the truck driver saw or could have seen him until he was about three yards ahead of the truck. The truck driver was not bound to anticipate that a pedestrian would cross the street between cross walks, and whether or not the deceased had the green light when he started, if the truck driver did not see him until too late to stop, we are unable to find that the truck driver was guilty of any negligence. If he could have seen him, even though he was not in the cross walk, and had time to avoid him, that would raise another question. But there is no such evidence, and under the circumstances we think a verdict in favor of the driver was properly directed.

When we come to the consideration of the case against the taxi, we find a different situation exists, because here we have a possible application of the doctrine of last clear chance. In Jendrzejewski v. Baker, 182 Md. 41, 31 A. 2d 611, we held that a pedestrian who left a safety zone, similar to the one in the case before us, and wrongly guessed the side of the zone on which an automobile was passing, was guilty of contributory negligence. A passenger who alights from a street car on a safety zone, has a right, of course, to leave that zone in any direction he sees fit. Unlike other jurisdictions (See Nisley v. Sawyer Service, Inc. 123 Or. 293, 261 P. 890) there is here no prohibition against a pedestrian walking anywhere in the street he desires. But if he steps from a safety zone in front of an oncoming automobile or street car, he is just as guilty of contributory negligence as if he stepped off a sidewalk in the middle of a block under similar circumstances. There is evidence in this case that Stehley left the safety zone and crossed the car tracks in front of the truck, which at that place and time had the right of way. If he was struck by the truck under such circumstances and thrown in the path of the taxi, his negligence continued at least until the end of that particular impact when he was recumbent. That was when the taxi driver said he first saw him, and it is from that moment that we must determine whether the taxi driver had no chance to avoid running over him as a matter of law.

He was driving (he said) between fifteen and twenty miles an hour. He put on his brakes, both hand and foot, thus affecting all four wheels of the cab. He skidded straight over the figure he saw lying in the roadway in front of him, and, apparently, from the marks on the road, pushed Stehley three or four feet before the cab stopped with Stehley under it, behind the front wheels which had passed over him. The cab driver said Stehley was twenty or twenty-five feet away when he first saw him lying in front of him, but the officer who measured the skid marks leading to his front wheels said they were forty-two feet long. If we deduct the four feet Stehley was pushed, and, even if we assume the beginning of the skid mark was made by the rear wheel and the end by the front wheel (of which there is no evidence), and deduct the distance between the wheels and assume this to be ten feet (without any evidence) the brakes must have been applied when the man on the street was twenty-eight feet away. In order to determine when the taxi driver first saw him, we must add to this distance, the space travelled by the taxi after the driver saw the figure, and before the braked wheels began to mark the pavement — in other words during the time required to transmit to the pavement the result of the driver’s impulse. It is obvious that, no matter how quick might have been the reflexes of the driver, the car did travel some distance while the driver was putting on his brakes and while the brakes were taking hold with sufficient grip to skid the wheels. There is no evidence how far this was but it is a frequent occurrence to put on brakes and it is a matter of common and ordinary knowledge that some time elapses before the impulse to apply them is transmitted into their application. If we add some space to that already shown by the skid marks it becomes apparent that the driver saw Stehley when he was at least several car lengths away. He had thirteen feet to his right in which he might have turned to avoid the recumbent figure. When he was asked whether he could have done so, he said he did not know. He said he did all he could, but the physical facts do not bear this out, at least to an extent that we can say he did not have the last chance to avoid the accident after he saw Stehley in his path.

■ Of course when a driver is confronted with an emergency, even if he does the wrong thing, he is not necessarily held liable, but whether his actions under such circumstances are negligent, unless the facts are undisputed, is not a question of law for the court, but is a question for the jury. Newman v. Stocker, 161 Md. 552, 157 A. 761; Consolidated Gas etc. Co. v. O’Neill, 175 Md. 47, 200 A. 359; Fogle v. Phillips, 191 Md. 114, 60 A. 2d 198. In view of the mute evidence of the skid marks, and in view of the wide space to the right to which the taxi might have been turned, we think there was a jury question presented whether or not the driver of the taxi was negligent. We think therefore, that a verdict should not have been directed in favor of the taxi cab company and the driver, but that the case against them should have been submitted to the jury.

Judgment affirmed as to Orem Richard Abels and Louis C. Keim, with costs. Judgment reversed with costs as to Belle Isle Cab Co., Inc. and Philip Hopper, and case remanded for a new trial against these defendants.