Webb-Pepploe v. Cooper , 159 Md. 426 ( 1930 )

Charles Street in Baltimore City, running north and south, continues in a northerly direction as Charles Street Avenue until it intersects the Joppa Road in Baltimore County. From the University Parkway north, the adjacent development is suburban in character, such buildings as there are, are located on lots of considerable area, and as one continues to go north the surrounding country becomes more and more rural. A few blocks north of the University Parkway, Charles Street Avenue at Charlecote Street bends sharply in a northwesterly direction for a few hundred yards, and then it curves again and proceeds in a northerly direction for several hundred yards to a point where it intersects, first, Greenway Street on the east, and then St. Paul Street, coming into it at an angle on the east and Overhill Road on the west. Two hundred and sixty-one feet south of Overhill Road on the west side of Charles Street is the entrance to the residence of Isaac N. Cooper. Charles Street at that point from building line to building line is about fifty-six feet wide. On either side next to the roadway, which is thirty-four feet wide, is a strip of green sward six feet wide on the west and seven feet wide on the east side of the avenue, and adjacent to it, and lying between it and the respective building lines, are two cement sidewalks, each four and one-half feet wide. On either side of the roadway is a line of street lights, extending north beyond the Cold Spring Lane, which itself is considerably more than a city block north of Overhill Road. At Cold Spring Lane there is a sharp dip in the road, which hides vehicles coming south on Charles Street Avenue from the sight of one standing south of Overhill Road.

On the evening of October 13th, 1928, Isaac N. Cooper, aged about sixty-nine years, a builder by occupation, attended a building association meeting. After the meeting, John Gablein, who with his wife and daughter were present, offered to take Mr. Cooper to his home in his, Gablein's, car. Mr. Cooper accepted, and went as far as his home on Charles Street Avenue in the Gablein car. His home, as stated, was located on the west side of the avenue, and the car, which was driven by Mrs. Henry H. Helmbright, Mr. Gablein's daughter, stopped on the east side of the avenue, opposite Cooper's residence. It remained there long enough for Mr. Gablein to change his place in the car from the rear to the front seat. Mr. Cooper stood in the gutter on the east side of the street until the Gablein car had started off and reached a point at or about Greenway Street, one hundred and fifty-seven feet north of where he was standing. He then looked to his right and left and, seeing no automobile approaching, attempted to cross the street, and reached the extreme west side of it, when he was struck by an automobile operated by H.W. Webb-Pepploe, proceeding south on Charles Street Avenue at a high rate of speed, and severely injured. The weather was clear, the roadway was dry, and the moon was shining. The evidence in the case, in my opinion, permits the inference that the Pepploe car was being driven at from forty to sixty miles an hour. The defendant himself testified that, as he approached the point at which the accident occurred, he met three cars going north, that "just at the moment of passing the third car, the first intimation that I had of any possibility of an accident was, a short distance ahead of my car lights, I saw a man's legs wide apart. I am frank to confess that I couldn't tell whether the man was five feet or ten feet in front of me. I realized my car, well, any car going thirty-five miles an hour — rather going twenty-five miles an hour — goes around thirty-eight or forty feet in a second. It's awful difficult to tell how long it takes to cover anywhere from five to ten feet. The first intimation, as I was just passing the third and last car, I saw this man's legs spraddle, as though he were in the act of running or jumping. My foot was still on the accelerator of the car, when I saw clothes up on my radiator cap." His statement that he saw the man immediately after he passed the third car is contradicted by other witnesses, who testified that the Gablein car had reached Greenway Street when Pepploe's car met it. Skid marks on the surface of the street indicated that the car went ninety to one hundred feet after the brakes were applied hard enough to make such marks before it stopped, and Pepploe, when George C. Cooper, the brother of the injured man, said to him, "you were going about sixty miles an hour," replied, "I was going a little fast or very fast," and later the witness said Pepploe answered, "I was going very fast." It further appeared that the brakes on Pepploe's car were in a defective condition; that he sounded no bell or horn as he passed Overhill Road or Greenway Street; that there are at those places no definite crossings; and that the distance between Overhill Road and the next intersecting road, Warrenton Road, which does not cross Charles Street, but intersects it on the west side, is about eight hundred feet. Upon these facts the majority opinion holds that in attempting to cross the road, Cooper was guilty of such contributory negligence as barred his right to recover in this case. I have been unable to concur in that conclusion for the following reasons:

As has been stated, the distance between road intersections at the point where the accident occurred is so great that to charge one attempting to cross the highway between such intersections with negligence in law, is, in my judgment, an unreasonable construction of the statute which gives to pedestrians the right of way at street crossings and to automobiles the right of way between street crossings, in that it requires an inference of negligence to be drawn from the fact that a pedestrian is struck between street intersections by a vehicle approaching from his right, regardless of any other fact or circumstance. To require a pedestrian to walk a quarter of a mile in order to cross a highway some thirty-four or five feet wide, when as a matter of fact the intersections may be quite as dangerous as the space between them, seems to me not to be required by either the letter or the spirit of the act.

Moreover, it cannot be assumed as a matter of law that Cooper testified falsely when he said he looked to his right and left before crossing the street and could see no automobile approaching. At least one of the occupants of the Gablein car testified that, before their car was started, no machine was visible on the road and it had proceeded nearly as far as the corner of Greenway Street, or about one hundred and fifty feet, when Pepploe's machine met it and it was about that time that Cooper started to cross the road. When it is considered that a car travelling at sixty miles an hour would go eighty-eight feet a second, and that hardly more than two seconds could have elapsed from the time Pepploe's car passed the Gabelin car until it struck Cooper, it may well be that, when Cooper looked to his right, it had not come in sight over the rise at Cold Spring Lane. It must also be remembered that Cooper was charged with the duty of looking not only to his right, but to his left, and that in looking to his right he was facing long lines of street lights, not altogether unlike automobile headlights in their appearance, some of which must have been on a plane with the lights of Pepploe's machine, and to have charged him with contributory negligence as a matter of law because under such circumstances he did not see that car, approaching at sixty miles an hour, is in my judgment inconsistent with the law of contributory negligence as established in this state. Cooper had the right to assume that no car would be operated over the highway which he was crossing at any such speed, and he was further justified in assuming that any car operated in any such an insane manner would give at least some warning of its approach, which was not done in this case.

To cite many cases upon a principle of law so long and firmly established would be a mere waste of time, but reference to two will serve to illustrate my position.

In Mears v. McElfish, 139 Md. 83, it is said: "The driver of the automobile was obliged to anticipate that pedestrians might be using the thoroughfare. It was especially incumbent upon him to exercise reasonable care to avoid injury to travelers, who, out of regard to their own safety, would naturally make use of the unpaved margin. The fact that the headlights on the automobile approaching from the city may have made it more difficult for the driver of the defendant's car to see the pedestrians on the side of the road, did not relieve him of the duty to use proper care to observe their presence. If he could not see them because of any insufficiency of his own headlights, or because of the glare of those on the approaching car, he might have reduced the speed of his automobile and given warning signals to any one possibly exposed to the danger of collision."

In Waltring v. James, 136 Md. 407, the facts were that the plaintiff was returning from the race track at Havre de Grace to the Pennsylvania Railroad station, and while crossing the driveway leading up to the station was struck by defendant's automobile. He testified that, before attempting the crossing, he looked down the street and there was no machine, and that he didn't remember getting over the road. There was also evidence in the case that there was no horn blown or warning given of the approach of the automobile which hit him. That was in broad daylight, and there was testimony there (as here) that the automobile was driven at an excessive rate of speed. Upon those facts the court reiterated what has so often been announced, that "unless the acts and conduct of the plaintiff relied on as amounting in law to contributory negligence is established by clear and uncontradicted evidence, the case should not be withdrawn from the jury, and that when the nature of the act relied on to show contributory negligence can only be determined by all the circumstances attending the transaction it is within the province of the jury to characterize it." And the court held that under the facts in that case the question of contributory negligence was for the jury.

To hold in this case that the act of a man in the full possession of his senses attempting to cross a lighted highway on a bright moonlight night was guilty of contributory negligence as a matter of law, because he did not see, in time to avoid it, an automobile approaching him at sixty miles an hour without warning of any kind, and when the headlights of the approaching automobile may naturally and readily have been confused with the converging lines of street lights on either side of the road in the direction from which it was coming, and which struck him while he was on the extreme edge of the road, in my judgment, is contrary to the settled law of this state. In effect the rule announced exonerates persons operating automobiles from liability for any injuries occasioned by their operation thereof, no matter how negligent or reckless, if the accident occurs between road intersections. Because if the person injured sees the approaching car and fails to avoid it, he is guilty of contributory negligence as a matter of law, and if he fails to see it he is equally guilty. The thing that conclusively establishes his negligence is the fact that he was hit. He cannot recover without proving that he was hit, but as soon as he shows that fact he establishes his own guilt, and exonerates the defendant. That in my opinion is contrary to the law announced in Nelson v.Seiler, 154 Md. 68.