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 de *126 fendant 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 grassplot, 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 *127 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 oí 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 wras 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 Ells-worth Street and Broadway, as the plaintiff contended, or between intersections, 1 under the railroad bridge, as the defendant contended. That question was squarely and, we think, fairly presented to the jury.
The appellant’s first contention is that the trial court’s summary of the evidence was biased against him. He claims that the court ignored testimony favorable to him and stressed testimony favorable to the defendant. The exceptions to the charge on the ground of bias were rather general, and as to
*128
one matter (pointed out below) rather clearly insufficient. Cf.
Maszczenski v. Myers,
With regard to the place where the accident happened, there was little, if indeed any, evidence favorable to the plaintiff other than his own testimony, either to emphasize or ignore. His own testimony was called to the jury’s attention, as was other evidence to the contrary. The question was directly and, we think, properly submitted to the jury for determination. It seems to us incredible that the plaintiff could have been struck by a southbound car and could have been thrown to a point 130 feet north of the place at which he said he was struck; yet the trial court did not overemphasize the high improbability of the plaintiff’s claim as to where the accident happened. The court certainly had no obligation to try to conceal it or to cover it up by omitting all reference to testimony contrary to the plaintiff’s unsupported assertion.
Other matters complained of as to bias scarcely merit comment. Weaknesses or inconsistencies in the testimony of a passerby eyewitness were adquately brought to the jury’s attention. The defendant’s inconsistent statements as to speed were pointed out, and the court also referred to the defendant’s effort to explain his statement to the police made just after the accident. With regard to alleged inconsistency in the defendant’s statements about applying his brakes, we do not find any, and think the court’s summary dealing with that matter was quite in order. As regards skidmarks we find no adequate exception on this point. Even if there had been one, we should see nothing to cast doubt upon testimony that the skidmarks ending near the stanchion where the plaintiff lay after the accident were made by the defendant’s car. As to this matter, the court seems merely to have assumed the truth of uncontradicted evidence, which was in no way improbable. The omission of any reference to the fact that the defendant stated that he had drunk two glasses of beer between an *129 hour and a half and two and a half hours before the accident or to the fact that the police officer noted that the defendant smelled slightly of beer or whiskey, insofar as bias is concerned, is fully offset by the absence of any reference to the same police officer’s report that the plaintiff smelled strongly of beer or whiskey.
The court’s references to the facts were, we think, within the established rule that the trial judge “may call the attention of the jury to the parts of * * * [the evidence] which he thinks important, and he may express his opinion upon the facts, provided that he makes it clear to the jury that all matters of fact are submitted for their determination.”
Snyder v.
Cearfoss,
In addition to making a general charge of bias, the appellant also complains of the court’s charge in certain other respects.
First, he sought a binding instruction (Prayer A) that the defendant was guilty of negligence and that the only question for the jury to determine was whether or not the plaintiff was guilty of contributory negligence. He also sought a somewhat more specific instruction (Prayer B) that the defendant was guilty of negligence as a matter of law because of the “uncontradicted” evidence that the defendant was exceeding the speed limit and was driving while under the influence of intoxicating liquor. Both of these instructions were properly rejected, as was another (Prayer 7) dealing with the latter subject. Exceptions to the charge raising the same or similar contentions were also properly overruled.
*130
Exceeding the speed limit does not constitute actionable negligence unless it is a proximate cause of injury or damage.
Sun Cab Co., Inc. v. Cusick,
The trial court did not grant any instruction based upon the plaintiff’s contention that the defendant was driving while under the influence of intoxicating liquor in contravention of § 206 of Art.
66fA
of the Code (1957), referred to below, for brevity, simply as § 206. In support of his contentions on this subject the appellant cites
Singleton v. Roman,
Neither
Singleton
nor
Cumberland & Westernport Transit Co.
supports the plaintiff’s claim that he was entitled to a binding instruction that the defendant was guilty of negligence because of driving while under the influence of intoxicating liquor. In each of those cases the matter of a defendant’s drinking was held to be a factor for consideration by the jury in determining negligence. In the
Cumberland & Westernport Transit Co.
case, the alleged intoxication of the driver of an oil truck involved in the accident was to be considered by the jury in determining “whether, and to what extent, his intoxication, if any, contributed to the plaintiff’s injuries * * (
With regard to whether or not the plaintiff was entitled to an instruction based upon § 206, the plaintiff’s requested instructions were properly rejected, for one reason (quite apart from any infirmities under Md. Rule 554 d and
Belt’s Wharf Warehouses, Inc. v. International Products Corp.,
The exception based upon the court’s omission from the charge of any reference to the defendant’s having admitted that he had had some beer prior to the accident is not well taken. Its exact purport is not wholly clear to us. We have already considered the matter from the point of view of alleged bias, and will say no more about that. Even if we treat this exception, either along with or without the exceptions to the denial of Prayers B and
7,
as sufficient to present a claim that the jury should have been instructed in substance that if the defendant was driving while under the influence of
*132
intoxicating liquor in violation of § 206, and if this violation caused or contributed to the happening of the accident, this would constitute negligence on the part of the defendant, we think that such an instruction was properly refused, because the evidence was not sufficient to warrant it.
Dorough v. Lockman, supra; West v. Belle Isle Cab Co.,
There was no evidence to show that the defendant was driving his automobile while in a condition produced by “drinking to the extent of probably affecting one’s judgment and discretion or probably affecting one’s nervous system to the extent that there is a failure of normal coordination, although not amounting to intoxication.”
(Clay v. State,
In the
Thomas
case, as here, no chemical test was made to determine the percentage of alcohol in the defendant’s blood. Here, too, there is no showing of any charge of a violation of § 206 made at the time of the accident. The only evidence
*133
to suggest that the defendant was under the influence of intoxicating liquor was that he had had “two beers” and smelled slightly of beer or whiskey. In this connection we may note that on the basis of tests referred to by Louis P. Gundry in the symposium on
Chemical Tests for Intoxication,
above referred to,
We also note that what is now § 206 of Art. 66)4 of the Code (1957), which makes it an offense “for any person who is * * * under the influence of intoxicating liquor * * * to drive * * * any vehicle * * * within this State” differs from the earlier wording of this statute, which was applicable in
Cumberland & Westernport Transit Co. v. Metz, supra
(1930). The statute there involved (then Code (1924), Art. 56, § 197, derived from the Acts of 1910, Ch. 207, sec. 140 (e)), made it a misdemeanor to drive an automobile when
“intoxicated or at all
under the influence of intoxicating liquor.” (Italics
*134
supplied.) The italicized words were eliminated by Ch. 1007 of the Acts of 1943, Sec. 153. (Ch. 1007 of the Acts of 1943 was a general revision of the Motor Vehicle Law, which was then established as Art. 66of the Code.) This change had actually been made prior to
Singleton v.
Roman,
We find no error in the court’s not referring in the charge to the defendant’s having had some beer in the amount and at the time shown by the evidence or in omitting any instruction based upon the effect of driving while under the influence of intoxicating liquor.
The appellant also claims that the instructions were erroneous with regard to the plaintiff’s contributory negligence based upon his stepping or walking out in front of the defendant’s car and the relative rights of way of the parties. The objection that there was no evidence that the plaintiff stepped or walked in front of the defendant’s car because he had almost completed his passage across the street, is devoid of merit. There was clear evidence that he stepped or walked out from a point at which he had been hidden from the defendant by the automobile in front and to the right of the defendant that had just avoided hitting the plaintiff.
The objection that this instruction made no differentiation between an accident happening at a street intersection and one occurring between intersections is also not well founded. If the instructions as a whole had given the impression that it made no difference in any aspect of the case whether the accident happened at an intersection or between intersections, the situation would be different. That, however, the instructions did not do. They made it very clear that the relative rights of way of the pedestrian and of the motorist were quite different, depending upon the place where the accident happened.
*135
They correctly stated that at intersections the pedestrian has the right of way and between intersections the motorist has it. They also made it clear that, regardless of the place of the accident, neither has an absolute right to proceed in disregard of danger to himself or to the other party. No useful purpose would be served by restating established rules as to the relative rights of way and duties of pedestrians and motorists, at or between intersections, including the duty of a motorist to maintain a proper lookout and to have his car under control. Among comparatively recent cases on the subject, see
Henderson v. Brown,
The plaintiff sought an instruction based upon the doctrine of last clear chance. There is nothing to show that the defendant could have avoided injury to the plaintiff after he became aware of his peril, and the stipulated “stopping distances” indicate that he could not have done so. The evidence was not such as to warrant an instruction based upon that doctrine.
West v. Belle Isle Cab Co., supra; Dehn v. Matusak,
We think that there was no need for the court to read various sections of the motor vehicle law to the jury where those matters upon which an instruction was appropriate were covered by the charge. Taken as a whole, the instructions of the trial court covered the law of the case fairly and adequately. That is sufficient. See
West v. Belle Isle Cab Co., supra,
Judgment affirmed with costs.
Notes
. There is an alley twenty feet wide running west from Broadway just south of the railroad embankment which abuts the western end of the bridges carrying the railroad over Broadway. Neither party contends that this alley figured in the accident at all. The defendant places the point of impact about 45 to 50 feet north of the north side of this alley, and the plaintiff places it about 70 feet south of the south side.