Appeal from the Superior Court of Baltimore City; Warnken, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.
The plaintiff-appellant, Alston, appeals from a judgment, entered upon the verdict of a jury, in favor of the defendant-appellee, Forsythe, in a suit for personal injuries sustained by Alston in an accident in which Alston, a pedestrian, was struck by an automobile owned and operated by Forsythe.
The accident happened after dark, but under lighting conditions described as good, at about 7:25 P.M. on November 8, 1958. The defendant was driving his car south on Broadway, in Baltimore, between Hoffman and Ellsworth Streets. Between these streets a railroad crosses Broadway at right angles by two parallel overhead bridges. Broadway is a divided highway -- a boulevard street -- with sidewalks along its eastern and western sides, and with north and southbound traffic lanes each 25 feet wide. These are separated north and south of the railroad bridges by grass plots 45 feet in width, having curbs on each side, and under the bridges by large stanchions, six to a side, so placed that one row forms a continuation of the east, and the other of the west, curb line of the median grass plots. The space under these bridges and between the stanchions is paved. Just before the accident the defendant was driving in the left of the southbound lane, about two feet from the line formed by the western grass plot curbs and the western row of stanchions.
There was evidence to show that another car was proceeding south on Broadway in the right hand lane ten to twenty feet ahead of the defendant, that the plaintiff was crossing Broadway from west to east; that the car ahead of the defendant
avoided hitting the plaintiff when the driver applied his brakes hard; that the plaintiff continued to cross, and that as he passed in front of the other car he emerged into the view of the defendant not more than about forty-five feet in front of his car; that the plaintiff was struck by the defendant's car when he had almost reached the east side of the southbound lane; that the defendant applied his brakes and laid down skid or tire marks for a net distance of forty-two feet (after allowing for the ten-foot wheelbase of the car); that the skid marks stopped just south of the southern railroad bridge; that the plaintiff fell at a point alongside the southernmost of the western row of stanchions supporting the railroad bridges; and that the plaintiff was picked up from this point by an ambulance crew and taken to a hospital. The plaintiff claimed that he fell on a grass plot, but even he testified, as did other witnesses, that he had not been moved after the accident until the ambulance arrived, and the testimony of every other witness on this subject, including that of the police officer who saw him being removed, was that he was lying by the stanchion. As is shown by a surveyor's plat this stanchion is 130 feet north of Ellsworth Street [where the plaintiff says the accident happened], and is almost as far south of Hoffman, and it is about 25 feet from the nearest grassplot.
Within a few minutes after the accident the defendant gave a statement to an investigating police officer in which he stated that his speed had been about 35 miles an hour, that he had first seen the plaintiff when he (the defendant) was about at the second post of the bridge [presumably the middle stanchion under the first or northerly bridge], that "I tried to hit my brakes when I saw him," that when the defendant first saw the plaintiff the latter appeared to be going east across Broadway, but that "it seemed like he didn't want to move when I hit the brakes," and that his left front fender struck the plaintiff and threw him against one of the bridge stanchions. The defendant also stated that he "had a couple of beers that is all." The officer's report noted that "he smelled slightly of beer or whiskey." At the trial the defendant claimed
that his speed had been about 25 miles an hour and that his statement to the officer as to speed had been due to his being excited. He confirmed his statement about having had two glasses of beer, and no more, and stated that he had drunk them between about 5 and 6 P.M., which would be between about an hour and a half and two hours and a half before the accident.
The investigating officer also visited the plaintiff at the hospital that evening and noted in his report that the plaintiff then "smelled strongly of beer or whiskey," though he denied having been drinking.
There was no evidence that the defendant showed visible signs of his faculties being in any way impaired immediately after the accident, and there seems to be no question about his car having proper lights on.
The speed limit on Broadway in the vicinity of the accident was stipulated to have been 30 miles an hour. "Stopping distances" (allowing for reaction time and braking) were stipulated for speeds of 25, 30, 35, and 40 miles an hour as 61, 83, 109, and 137 feet, respectively.
The principal controversy with regard to the facts was whether the accident happened at the intersection of Ellsworth Street and Broadway, as the plaintiff contended, or between intersections,*fn1 under the railroad bridge, as the defendant contended. That ...