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Dyer v. Heatwole

Decided: June 13, 1961.

DYER
v.
HEATWOLE



Appeal from the Circuit Court for Prince George's County (MARBURY, J.).

The cause was argued before Brune, C. J., and Henderson, Hammond, Horney and Sybert, JJ.

Sybert

SYBERT, J., delivered the opinion of the Court.

In a suit by Margaret Dyer, plaintiff-appellant, against Gordon N. Heatwole, defendant-appellee, for personal injuries suffered by her after alighting from his station wagon, the trial court directed a verdict for the defendant at the close of the plaintiff's case. Mrs. Dyer appeals from the judgment entered thereon, contending that her evidence was sufficient to require submission to the jury of the issues of negligence, contributory negligence, and last clear chance.

Mrs. Dyer's employer furnished her with transportation as part of the terms of her employment, and on the day of the accident she rode to work with Heatwole, a fellow employee, as she had for some months. She was seated on the rear seat. Another fellow employee, Elizabeth Manning, rode in front beside the driver. Upon entering the plant property where the parties were employed, Heatwole stopped to discharge his passengers in front of the plant building in which they worked, before proceeding to a parking area. Mrs. Manning alighted first and walked to the rear of the vehicle. After handing Heatwole her morning paper, Mrs. Dyer stepped out of the right rear door, stood and turned to her left and while facing the right side of the vehicle closed the door with her right hand. The door closed upon the cuff on the sleeve of her winter coat, catching it between the door and the door post.

The only witnesses who testified as to the circumstances of

the accident were Mrs. Dyer and Mrs. Manning. Their accounts differed somewhat in regard to certain of the details. Mrs. Dyer's testimony in direct and cross examination as to the relative timing of her closing of the door on her coat sleeve and the pulling away of the station wagon by Heatwole was not free of ambiguity. However, her version would seem to be best presented in her statement: "And just as I shut the door he took off, and my hand was still on the door * * *. My sleeve was caught." She said she was not aware that her sleeve was trapped until the station wagon pulled away. She testified that she ran beside the moving car shouting to Heatwole, but he failed to heed her. She stated she fell and was dragged some distance. Then Heatwole, apparently becoming aware of Mrs. Dyer's predicament, stopped, got out and coming around the vehicle to where she was, inquired as to what had happened and directed one or more of the ladies present to assist her to the ladies' room. The appellant allegedly suffered certain permanent injuries as a result of the accident. According to Mrs. Dyer's testimony, Heatwole contacted her five days later and told her that while he heard her call he assumed she had forgotten her lunch, as she had on a prior occasion.

Mrs. Manning testified that both her door and Mrs. Dyer's door were closed before the station wagon started moving. She said that Heatwole "started in the same fashion he does every day, a very slow easy manner", and that he didn't "take off". She stated that the station wagon moved about a car's length before it stopped, that she saw Mrs. Dyer fall and that she did not think she walked as far as a car's length to get to where Mrs. Dyer was lying on the ground.

The trial court, in granting the motion for a directed verdict, held that even if it assumed negligence on the part of Heatwole in starting his car when he heard both of his passengers close their doors, Mrs. Dyer had failed to use ordinary care and prudence for her own safety and the act of closing the door on her own coat sleeve constituted contributory negligence as a matter of law, barring recovery by her. The trial court also rejected the theory of last clear chance. It held that even if Heatwole heard the outcry of Mrs. Dyer,

his failure to sense her perilous situation under the circumstances and to take steps to protect her did not constitute a later act of negligence permitting recovery.

We think, as the trial court did, that even if it is assumed that the evidence was sufficient to show negligence on the part of Heatwole, appellant's own testimony affirmatively showed ...


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