Reid v. Pegg

• Decision Date: 29 December 1969
• Docket Number: No. 129,129
• Citation: 260 A.2d 38,256 Md. 289
• Parties: Daisy A. REID and Parran Reid v. Thomas Wayne PEGG.
• Court: Maryland Court of Appeals

Page 289

256 Md. 289

260 A.2d 38

Daisy A. REID and Parran Reid v. Thomas Wayne PEGG.

No. 129.

Court of Appeals of Maryland.

Dec. 29, 1969.

Stanley Levin and Robert C. Verderaime, Baltimore (A. Harold DuBois, Verderaime & DuBois, Baltimore, and Walter B. Dorsey, Leonardtown, on the brief), for appellants.

Marvin B. Miller, Mt. Rainier (Couch, Blackwell & Miller, Mt. Rainier, and Joseph A. Mattingly, Leonardtown, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SMITH and DIGGES, JJ.

SMITH, Judge.

This case arises as a result of a collision between a motor vehicle and a pedestrian on Route 235 near Lexington Park in St. Mary's County. A jury returned verdicts totaling $21,500.00 in favor of appellants Daisy A. Reid (Mrs. Reid) and her husband, Parran Reid, the plaintiffs, against the operator of the motor vehicle, Thomas Wayne Pegg (Pegg). Judge Bowen directed entry of a judgment n. o. v. on the ground that there was not sufficient evidence of primary negligence and also on the ground that Mrs. Reid was guilty of contributory negligence as a matter of law. We shall sustain the ruling of Judge Bowen on the basis of Mrs. Reid's contributory negligence.

In considering a motion for a judgment n. o. v., the evidence and the reasonable inferences to be drawn from it must be considered in the manner most favorable to the plaintiff. P. Flanigan & Sons v. Childs, 251 Md. 646, 653, 248 A.2d 473 (1968), and cases there cited. The granting of the motion was, in effect, a granting of the earlier motion for a directed verdict. It is in that light we here consider the evidence adduced.

The accident took place on February 16, 1968, at approximately 6:30 P.M. It was dark. There was no artificial illumination at the scene of the accident. There was no testimony to indicate that weather conditions were other than clear.

Maryland Route 235 near Lexington Park at its intersection with Adams Street is a dual highway. It runs north and south with a concrete median strip between the northbound and southbound lanes. Adams Street runs east and west, coming to a dead end at Route 235, Patuxent Naval Air Station being on the other side of Route 235. Adams Street had no sidewalks at the area of the intersection. At its intersection with Adams Street, Route 235 had a shoulder said by the investigating trooper to be 15 feet in width. The paved portion of the southbound highway was 24 feet 3 inches in width with the 'slow' lane first crossed by Mrs. Reid being 11 feet 6 inches in width. The undisputed testimony was that in the direction from which Pegg came Mrs. Reid had an unobstructed view for not less than 1000 feet.

Mrs. Reid walked in an easterly direction on Adams Street to Route 235. It was her intent to visit a friend at Hermansville, south of Lexington Park on Route 235. She intended to walk down the median strip since there were no sidewalks on Route 235.

Mrs. Reid's version of the accident on direct examination was:

'When I got to the highway it was a car coming and that car-I stand there until the car passed and went on down the road. Then I look both ways on the highway and I didn't see any car, so I started walking across the street to get to the concrete. And I hear a noise.

'Q. Where were you when you heard that noise in relation to the center line? A. Well, I was crossing over the white line going towards the cement and I hear a noise and I looked around again up the road. And this car was coming in a high speed. I just couldn't say how high, but I rushed to get across the street. I didn't run, I just walk fast to get across the street and I see this car sway over and hit me coming right into me, and I couldn't run. I just couldn't get no further. I got almost to the concrete.'

On cross-examination the record at one point is:

'Q. Now then, when you looked you didn't see any lights from automobiles coming from your left? A. Wasn't no cars going.'

At the trial Mrs. Reid drew a diagram indicating that her crossing of the highway was in what might be described as the bed or an extension of Adams Street. She was under the impression that the car changed from the slow lane to the fast lane. A witness who arrived at the scene shortly after the accident said Mrs. Reid was lying in the 'fast' lane approximately two feet from the center line toward the concrete median strip. The trooper testified that he found a pool of blood 10 feet to the south of the intersection and approximately 1 1/2 feet east (or on the median strip side) of the center line of the southbound lane.

It is conceded that the headlights on the Pegg vehicle were lighted. Pegg claimed to be driving between 45 and 50 miles per hour. The speed limit was 50 miles per hour. He stated he saw Mrs. Reid when he was approximately two to three car lengths from her; he then applied his brakes. Thereafter, the record is in part:

'Q. And did you stop your automobile at some point? A. Yes, I did, right after the point of impact. I'd say it was right after the point of impact that the car came to a complete stop.

'Q. Now, what part of your car or once you saw Mrs. Reid, how did she act from right up to the point of impact, what did you see? A. She-she just went across the road. She was walking fast. She was traveling fast like she was in a hurry to get to the divide. She didn't look. She just kept on coming and she didn't stop in the middle of the road or anything to let me by. She just went across the road. Didn't watch at all, bother to see if a car was coming.'

The only damage found by the officer to the Pegg vehicle was a broken radio antenna on the right-hand side of the vehicle at the point of the curve of the windshield. No other damage to the vehicle was found. There were no eye witnesses.

If Mrs. Reid was guilty of contributory negligence, we are not obliged to determine whether there is primary negligence on the part of Pegg. Vokroy, Adm'r v. Johnson, 233 Md. 269, 274, 196 A.2d 451 (1964); United States Fidelity & Guaranty Co. v. Royer, 230 Md. 50, 54, 185 A.2d 341 (1962). Mrs. Reid had a duty to use ordinary care for the preservation of her own health and safety. Contributory negligence has been defined as 'the neglect of duty imposed upon all men to observe ordinary care for their own safety. It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.' Potts v. Armour & Co., 183 Md. 483, 490, 39 A.2d 552, 556 (1944).

The rule governing use of the highway here is as stated in Flohr v. Coleman, 245 Md. 254, 225 A.2d 868 (1967), where Judge Marbury said for the Court:

'The public roads are for the general use of all members of the public, and the rights of one operating a vehicle and of a pedestrian on a public highway are mutual, reciprocal, and equal. Neither may use it in disregard of the right of the other to use it. Each must accommodate his movements to the other's lawful use of it, and each must anticipate the other's possible presence. Mahan v. State, to Use of Carr, 172 Md. 373, 191 A. 575. Pedestrians have an equal right with those in motor vehicles to use a country highway according to their need, convenience, or pleasure. Edwards v. State, for Use of Guy, 166 Md. 217, 170 A. 761. The public highway includes not only the paved portion of the highway but the shoulder. Code (1957), Article 66 1/2, Section 2(a) (58).' Id. at 265, 225 A.2d at 874.

See also Greer v. King, 247 Md. 557, 580, 233 A.2d 775 (1967), and Lewis v. Hammond, 247 Md. 297, 231 A.2d 32 (1967).

Mrs. Reid cites Crunkilton v. Hook, 185 Md. 1, 42 A.2d 517 (1945), and Boyd, Adm'r v. Simpler, 222 Md. 126, 158 A.2d 666 (1960), and then asks if there are such cases holding under certain circumstances that it is a jury question as to whether the pedestrian failed to use ordinary care when he crossed between intersections in the city, is it not more a jury question outside a city or town where the pedestrian and driver have equal and reciprocal rights to use the highway?

In Crunkilton v. Hook, supra, the Court did not enunciate any rule similar to that which one might infer from the argument of Mrs. Reid. There the Court discussed the proposition generally, pointing out that a pedestrian...