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MacKenzie v. Reesey

Decided: July 2, 1964.

MACKENZIE (BRUN), ETC., ET AL.
v.
REESEY



Appeal from the Circuit Court for Baltimore County (LINDSAY, J.).

The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.

Prescott

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

Judge Lindsay directed a verdict for the defendant at the close of appellants' case, and they have appealed.

They pose six contentions, but all of the points raised may be determined by answering the following questions: (1) Did the accident take place in a "town or city," within the purview of Code (1957), Article 66 1/2, Section 236 (a); (2) Was the appellants' decedent guilty of contributory negligence as a matter of law; and (3) Was appellants' evidence such as to require the invocation of the last clear chance doctrine?

The appellee, Donald Reesey, a sergeant in the Armed Forces at the time of the accident herein involved, was living in Dundalk,

Baltimore County, and working at Andrews Air Base near Washington, D.C. He was on the 4:30 p.m. to 12:30 a.m. shift, and, usually after driving back to his home in Dundalk in the early morning hours, would sleep until 6:00 a.m., arise and have breakfast with his aunt, get his child off to school, and then go back to bed until time to go back to work at 3:00 p.m. On the night of December 1, 1961, he left the base at 10:30 p.m. and headed toward his brother's home in the Victory Mills section of Baltimore County to the east of Essex, stopping on the way to pick up some fellow servicemen, hitchhiking. Thereafter he stopped to get some beer, some of which was consumed by appellant en route and some at his brother's house, he consuming a total of four bottles and two glasses of draft beer in the period between 10:30 p.m. on the evening of December 1st and 6:00 a.m. on December 2nd. The brother, at the time, was working the same hourly shift as the appellee. When he arrived at his brother's home he found his brother's family at home watching television. After spending some time with the family and assisting his brother in assembling some newly purchased furniture, he left, around 5:30 a.m. to go to his home in Dundalk.

As he was proceeding in a westerly direction on Eastern Blvd; a four-lane dual highway in the heart of Essex, in the lane of traffic next to a concrete center dividing strip, he came to a stop for a red light at Taylor Avenue, a block or so west of a police station, and another car stopped to his right. His lights were on "low beam." When the light turned to green, both appellee and the car to his right started forward, the car to the appellee's right accelerating at a faster speed. At a point approximately 517 feet from the intersection of Taylor Avenue, while the appellee was traveling at approximately 25 miles per hour, he felt a thump on the left front of his car, and promptly brought the car to a stop in the same lane of traffic. He walked back and found the deceased lying just over the median strip in the left lane of eastbound traffic approximately 20-25 feet to the east of where he had stopped. The appellee's car was damaged to the extent that the top of the left front fender was pushed in, the parking light was broken, the left post on the side of the driver was bent, and the windshield was broken.

Mrs. Lois Cook, a waitress at the diner who had just served the deceased with a cup of coffee, saw him go out the doorway and start across the street, after which she went into the kitchen and picked up an order of scrambled eggs. She testified that about five seconds after the deceased had left the front door and while she was coming out of the kitchen, she looked out the front window, heard a loud screeching of brakes for two or three seconds duration, and saw a man "flying" up in the air.

I

None of the questions requires elaborate discussion. Section 236 (a), supra, provides that between street crossings in "towns and cities" of this State vehicles shall have the right of way over pedestrians.This Court has held (in the absence of statutory provision to the contrary) that outside the towns and cities pedestrians and motorists have mutual, reciprocal and equal rights. Mahan v. State, 172 Md. 373. Appellants argue that none of the towns or cities in ...


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