320 F.2d 45 (4th Cir. 1963), 8762, Goosman v. A. Duie Pyle, Inc.

• Citation: 320 F.2d 45
• Party Name: Frederick Z. GOOSMAN, to his own use and to the use of Royal Indemnity Company, a body corporate, Appellant, v. A. DUIE PYLE, INC., a body corporate, Appellee.
• Case Date: June 29, 1963
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

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320 F.2d 45 (4th Cir. 1963)

Frederick Z. GOOSMAN, to his own use and to the use of Royal Indemnity Company, a body corporate, Appellant,

v.

A. DUIE PYLE, INC., a body corporate, Appellee.

No. 8762.

United States Court of Appeals, Fourth Circuit.

June 29, 1963

Argued Jan. 16, 1963.

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Melvin J. Sykes and Paul Berman, Baltimore, Md. (Paul M. Higinbothom, Baltimore, Md., Rose Rothenberg, New York City, and Sigmund Levin, Baltimore, Md., on brief), for appellant.

John F. King and Frank J. Vecella, Baltimore, Md. (Anderson, Barnes, Coe & King, Baltimore, Md., on brief), for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and CRAVEN, District Judge.

BOREMAN, Circuit Judge.

Plaintiff-appellant, Frederick Z. Goosman, sustained personal injuries and property damage when his automobile collided with the rear of a 46-foot tractor-trailer rig leased by defendant-appellee, A. Duie Pyle, Inc. (Pyle or defendant herein), and operated by its agent, Anderson, as the rear of the trailer extended across the median strip and into the eastbound portion of four-lane U.S. Route 40. The accident occurred at a concrete crossover extending between eastbound and westbound portions of U.S. Route 40, about 950 feet east of the intersection of Route 40 and Maryland Route 152. Goosman appeals from a judgment on a jury verdict in favor of defendant Pyle entered by the United States District Court for the District of Maryland. Timely motions for directed verdicts in favor of Goosman on the issues of primary and contributory negligence were denied. The court denied also Goosman's motion for judgment n.o.v. or in the alternative for a new trial. To avoid needless repetition, the reader is referred to the opinion of the District Court, 206 F.Supp. 120 (D.Md.1962), which should be read in connection with this opinion.

On appeal Goosman charges: (1) The court erred in denying Goosman's motions for directed verdicts on the issues of Anderson's primary negligence and plaintiff's contributory negligence; (2) the court made numerous errors in its instructions to the jury; (3) the court erred in refusing to ask certain questions of the prospective jurors on their voir

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dire examination; and (4) the court erred in refusing to order production of Anderson's written reports which were made to the owners and lessee of the tractor-trailer within a short time after the accident.

Under the evidence the jury could have found the following facts: At about 7:00 P.M. on the clear, dry night of December 9, 1959, with a passenger seated beside him, Goosman was driving his 1958 Chrysler Imperial in an easterly direction with its automatic throttle set at the maximum legal speed of 55 miles per hour when he suddenly observed the long flat-bed trailer of Pyle's rig blocking the left eastbound lane in which his car was traveling. There was no traffic in the right eastbound lane. He braked, swerved hard to his right to avoid collision but struck the rearmost part of the trailer with the left side of his Chrysler. At the moment of impact the tractor-trailer rig extended across the 26-foot median strip separating the eastbound and westbound lanes with its tractor extending into the southernmost (fast) westbound lane and its trailer projecting into the northernmost eastbound lane a distance of six to twelve feet.

Prior to the collision, according to his uncontradicted testimony, Anderson pulled into the Bonnie Brae Diner, a service station and truck stop on the south side of U.S. Route 40 opposite the crossover, to telephone his wife. Having completed his call, Anderson returned to his tractor-trailer, used a rag to wipe all the lights and reflectors on the rig, warmed up his tractor, and drove the rig to a stopped position perpendicular to U.S. Route 40 and south of the crossover intending to drive across the eastbound lanes and the median strip and to turn left into the westbound lanes. Here, Anderson testified, he carefully observed traffic conditions within his range of vision (see discussion in 206 F.Supp. at 123-124). Although he could see the traffic light at the intersection with Maryland Route 152 about 950 feet to his left, eastbound traffic between that intersection and a point about 600 feet to his left could not be seen because of a dip in the road. Neither eastbound traffic nor any reflection of lights was in Anderson's view to his left and, although two westbound cars were approaching in the short 300-foot sight distance to his right, he correctly estimated that they would pass before he could reach the westbound lanes. However, after Anderson had entered the highway, the sudden appearance of a third westbound car only 300 feet to his right forced him to stop his tractor on the crossover and in this position his trailer extended over 20 feet of the 24-foot total width of the two eastbound lanes. Anderson was on the lookout for eastbound vehicles and, upon observing the approach of Goosman's car from his left, he eased the tractor forward into the southerly westbound lane as far as possible without obstructing the way of the westbound car for which he had earlier stopped.

Goosman and his passenger testified that they saw no lights on the trailer, that the flat unloaded trailer bed, only seven inches thick, blended with the concrete pavement, and that they saw the trailer too late to avoid the collision. Maryland State Trooper Shockley elaborated on Goosman's testimony that the general illumination of the area was poor. But Anderson testified that the lighting in the area was good due to floodlights near the Bonnie Brae and the adjacent service station on the south of the highway and other floodlights around a garage on the north side directly opposite the crossover. Although Anderson failed to state directly and positively that he had turned on the trailer lights when leaving the diner, this fact could properly have been inferred from all the testimony. In addition, it was clear from the testimony of Pyle's witnesses that the trailer was equipped with adequate reflectors and lights which, if lighted, should have been visible to Goosman from a distance of about 500 feet as he advanced up and over the changing grade of the highway to the place of collision.

The Maryland statute applicable to the issue of whether Anderson

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was guilty of primary negligence in entering U.S. Route 40 from a private drive is article 66 1/2, section 234, Annotated Code of Maryland (1957):

'The operator of a vehicle entering a paved public highway, which is hereby defined to be a highway having a hard, smooth surface, composed of gravel, shells, crushed stone, paving blocks, asphalt, concrete or other similar substance, from an unpaved public highway, or from a private road or drive, shall come to a full stop upon reaching the intersection, and yield the right of way to all vehicles approaching on such paved public highway.'

The quoted statute is to be applied and construed in the same manner as the Maryland 'boulevard law,' article 66 1/2, sections 233 and 242, Annotated Code of Maryland (1957), under the many applicable decisions of the Maryland Court of Appeals. Zeamer v. Reeves, 225 Md. 526, 530-531, 171 A.2d 488 (1961); Shriner v. Mullhausen, 210 Md. 104, 114-115, 122 A.2d 570, 821 (1956). In these cases, which involve stop intersections as well as private entrances to the highway, the favored driver has the right of way on the through street and the unfavored driver is required by the boulevard law to stop and yield the right of way.

In support of his contentions that the negligence issues were not for the jury in this case, but should have been decided in his favor by the court as a matter of law, Goosman relies on his interpretation of Shriner v. Mullhausen, 210 Md. 104, 122 A.2d 570, 821 (1956). In that case the Maryland Court of Appeals, overturning a jury verdict, held the unfavored driver negligent as a matter of law where, from a private drive with an interrupted view of approaching traffic, he drove his 23-foot tractor-manure spreader rig onto a 21-foot public road without waiting a reasonable time to allow approaching traffic to traverse a 'blind' spot, and the favored driver, reaching the crest of a hill without negligence, met the unanticipated emergency by braking, swerving left and losing control of her car. Although the favored driver could see the obstructing rig a distance of several hundred feet and could have stopped or passed to the right of the rig, the court held she had no last clear chance to avoid the accident and was free of contributory negligence as a matter of law. Based upon the holding in Shriner, Goosman appears to argue that under the Maryland law the unfavored driver about to enter a 'boulevard' has a duty to stop and yield the right of way, even where the view of approaching traffic is so obstructed that no amount of waiting will remove doubts as to the approach of favored traffic. Goosman contends that since Anderson could not see a sufficient distance to his right, he was negligent in pulling onto the highway knowing that unseen westbound traffic could force him to remain in a position where he would be unable to yield the right of way to eastbound travelers such as Goosman. However, the Maryland cases, as we construe them, indicate that the duty placed on the unfavored driver is not so absolute as Goosman contends and, in addition, factual differences between Shriner and the instant case support submission of the negligence and contributory negligence issues to the jury.

In the leading case of Greenfeld v. Hook, 177 Md. 116, 8 A.2d 888, 136 A.L.R. 1485 (1939), where there was evidence that the favored driver could not be seen because he was driving at night without lights and it was clear that the favored driver was able to see the unfavored vehicle entering the intersection in time to stop or swerve to avoid the collision, the court held...