Buchanan v. Galliher, 238

• Decision Date: 28 January 1971
• Docket Number: No. 238,238
• Citation: 272 A.2d 814,11 Md.App. 83
• Parties: William R. BUCHANAN, Administrator of the Estate of John Paul Jones, deceased v. Daryle H. GALLIHER, a minor, etc., et al.
• Court: Court of Special Appeals of Maryland

Page 83

11 Md.App. 83

272 A.2d 814

William R. BUCHANAN, Administrator of the Estate of John Paul Jones, deceased v. Daryle H. GALLIHER, a minor, etc., et al.

No. 238.

Court of Special Appeals of Maryland.

Jan. 28, 1971.

William E. Brannan, Towson, for appellant.

Robert C. Verderaime, and Lewis S. Nippard, Ellicott City, with whom was Timothy E. Welsh, on brief, for appellees.

Argued before ORTH, THOMPSON and POWER, JJ.

POWERS, Judge.

Daryle h. Galliher and John Henry Harless, Jr. were injured and John Paul Jones was killed when a car driven by Jones at high speed was wrecked at Liberty Road and the Baltimore Beltway at about 2:00 A.M. on April 21, 1968. All were minors. Galliher and Harless sued William R. Buchanan, administrator of the estate of Jones, in separate suits in the Circuit Court for Baltimore County, each joined by his mother, asserting derivative claims.

After consolidation the cases were tried together. Judgments were entered for all plaintiffs. The defendant appealed and here asserts:

1. That the judge erred in granting directed verdicts for the plaintiffs.

2. That the judge erred in failing to grant directed verdicts for the defendant.

After fully reviewing the evidence, and applying the appropriate tests, we conclude that the questioned rulings were correct, and will affirm the judgments.

On April 20th, at a time which is not clear but not significant, Jones, driving a 1968 Chevrolet four door Caprice hardtop, picked up Harless and dropped him off at his home. Later that evening they met again at a pool room and drive-in restaurant in Eldersburg. Galliher also met Jones there. Neither had known him before that day. There was no indication that any of them drank any alcoholic beverages. Galliher went with Jones and another boy from the drive-in to a girl's house, and back. Jones had the keys to the car, and said it was his father's. Back at the drive-in, it was arranged that Jones would take Harless and Galliher home, but had to stop first to get gas. They left there about 1:30 A.M., with Jones driving, Galliher on the front seat and Harless on the rear seat, lying down and apparently asleep. Jones drove normally, within the speed limit.

Officer Broadfoot, Baltimore County Police, observed the car on Liberty Road, at a normal rate of speed, 'no violation'. If fitted the description of a car reported stolen, and he followed, 'just as a normal check' and stopped it. The car pulled over to the shoulder. He went to the car and asked the operator for his license and registration card. At that time he saw Harless lying on the back seat. The driver made no move to comply, even after the request was repeated. The officer drew his gun. The car took off east on Liberty Road at high speed. In the chase that followed, both cars attained speeds over 100 miles per hour. The chase ended when Jones tried unsuccessfully to enter a ramp at the Beltway, hit the curb, left the roadway and wrecked.

Harless had no recollection of the occurrence. Galliher testified that when the police car signalled he told Jones to pull over. Jones said he wouldn't, because he had no driver's license, and the car was stolen. At Galliher's urging, he did.

The officer said he was at the side of the car about 45 seconds. Galliher thought the time was about 1 1/2 to 2 minutes. Based on his observation there, and at the scene where he made efforts to resuscitate Jones, Officer Broadfoot estimated his age at 15 to 17. Officer Hoffmeister, from observation at the accident scene, estimated Jones was between 16 and 18. Another boy who had seen him several times that evening, but not before, thought he was 17 or 18, was about five feet eight or nine, and weighed about one hundred fifty to sixty. Officer Schultz, who took photographs at the scene, thought Jones was about 17 years old. Harless thought Jones was 18 or older. Galliher said he thought Jones was 17 or 18, about five feet eight or nine, and weighed about one forty five.

The only evidence offered by appellant was a photograph of Jones taken in January, 1968, and a copy of the autopsy report, which contained the statement, 'The body appears to be the stated age of 14 years.'

At the close of all the evidence, appellant moved for directed verdicts in his favor on the ground that plaintiffs, as a matter of law, were contributorily negligent, or assumed the risk. He did not contend that Jones, as a matter of law, was free of primary negligence. Appellees moved for directed verdicts on the ground that the deceased driver was negligent as a matter of law, and that, as a matter of law, they were free of contributory negligence, and did not assume the risk of their injuries.

Negligence of the driver apparently was taken by all as too obvious for discussion. The motions thus presented to the trial judge three alternatives:

1. That as a matter of law Galliher and Harless were negligent, or assumed the risk of injury.

2. That as a matter of law, they were not negligent, and did not assume the risk of injury.

3. That there were conflicts in the evidence, or the inferences to be drawn, and their resolution was for the jury.

It was not contended that the passengers were in any way negligent in the direct opperation of the vehicle, nor in what happened after Jones fled the place where the officer stopped him. The points urged were (a) the passengers should have known that Jones was unlicensed, and thus incompetent, and assumed the risk of riding with him, and (b) when the officer stopped the car, Galliher or Harless or both, then knowing that Jones was unlicensed, and the car stolen, should have...