Belleson v. Klohr

• Decision Date: 13 April 1970
• Docket Number: No. 337,337
• Citation: 264 A.2d 274,257 Md. 642
• Parties: Carrie Mae BELLESON v. Edward S. KLOHR.
• Court: Maryland Court of Appeals

Page 642

257 Md. 642

264 A.2d 274

Carrie Mae BELLESON v. Edward S. KLOHR.

No. 337.

Court of Appeals of Maryland.

April 13, 1970.

John H. Bolgiano, Baltimore (Smith, Somerville & Case, Baltimore, and Ralph G. Hoffman, Westminster, on the brief), for appellant.

William E. Brannan, Towson (Ralph E. Deitz and Downes & Deitz, Towson, on the brief), for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

At a trial for damages arising out of an automobile accident defendant's motion for a directed verdict was denied, and a jury in Howard County returned a verdict for the plaintiff. Defendant's subsequent motion for a judgment n. o. v. was also denied, and this appeal followed.

Some of the facts of this case are not in dispute. Summarized they are that appellee Edward S. Klohr, seventy-two years old, left home before daylight on October 27, 1965, to drive to a cider mill in Carroll County, Maryland. While driving his pick-up truck north on State Route 97 the left rear tire blew out, and Klohr pulled off onto the shoulder. He got out of his truck, leaving his headlights and taillights burning, and stood on the highway. While in the roadway he was struck by the right front of a car proceeding north on Route 97 and driven by the appellant Carrie Mae Belleson. Mr. Klohr landed in the center of the northbound lane opposite or just behind the rear of his truck. Route 97 is a wider than average macadam paved two-lane highway, and from the point where Klohr's truck was stopped the view to the south is unrestricted for about one-half mile. Mrs. Belleson was driving thirty to thirty-five miles per hour with her low beam headlights on, and first became aware of Klohr's lighted truck stopped on the shoulder about one-quarter mile ahead of her.

Klohr's version of the accident was that he thought he heard a stake fall from his truck when the tire blew, and got out to investigate. He said he looked to the south when he first stepped onto the roadway and saw no traffic. He then stood two feet onto the pavement at a point opposite the truck door, looking up in a northeasterly direction. He testified he remained standing in this position for about one minute when he suddenly became aware of headlights to his right (south), turned to see them some eight feet away, and was struck.

Mrs. Belleson was called to testify as an adverse witness by the plaintiff. She said although she saw the lighted truck about one-quarter mile before she reached it, she saw nothing in the highway until she suddenly became aware of a dark object in the middle of the north lane about two car lengths in front of her. She swerved left and applied her brakes but was unable to avoid striking Klohr. She also admitted telling the police officer investigating the accident that she did not see Mr. Klohr before hitting him.

Maryland State Police Sergeant Norman Green investigated the accident and testified Mr. Klohr told him that after his tire blew out he was crossing the road looking for his hubcap, and was stooping down to pick up pieces of rubber from the blown tire when the car struck him. Sergeant Green said Mr. Klohr explained he did not see Mrs. Belleson's car until it struck him. Appellee denied he ever gave the version of the accident related by the trooper.

With this factual background, appellant presents three grounds for reversal. These are 1) that portions of Klohr's testimony are incredible and should not have been considered, 2) that defendant should have received a directed verdict, and 3) that even if a directed verdict was not proper the trial judge erroneously refused to instruct the jury as to a pedestrian's duty to watch for vehicular traffic.

Appellant's initial point is that Mr. Klohr's testimony as to where he was struck is incredible and should not have been considered. She finds unbelievable Mr. Klohr's testimony that he was standing near the door when struck, and landed slightly to the rear of his truck; that is to say he was moved south by a northbound vehicle. The only Maryland authority cited is Commissioners for Anne Arundel County v. Vanskiver, 166 Md. 481, 171 A. 705 (1934). There the plaintiff claimed he drove a dilapidated Motel T Ford twenty feet through sand and gravel with the front wheels buried eighteen to twenty inches. The court had no difficulty in finding this testimony so 'inherently improbable' it could not legally support an inference that the gravel was of the claimed depth. While we have not refrained from applying the doctrine of physical impossibility where we found it applicable, Cocco v. Lissau, 202 Md. 196, 95 A.2d 857 (1953), Baltimore & Ohio Railroad Co. v. State, 190 Md. 227, 58 A.2d 243 (1948), we have indicated this principle should be applied cautiously inasmuch as it is so often difficult to determine accurately the effect of scientific laws. York Motor Express Co. v. State, 195 Md. 525, 74 A.2d 12 (1950). We are unable to say the testimony in the present case is physically unworthy of belief. Appellee testified that he was in the act of turning when struck and flew up over the hood. There is no clear proof as to what the distance was between the point where Mr. Klohr landed and where he claimed to be standing when struck. There is no testimony to negate the possibility of his rolling on the ground before coming to rest. Finally, we are not persuaded that the exact point where Mr. Klohr was standing with reference to the truck has any legal significance, if the jury believed that he was in fact standing only two feet onto the pavement. The probability of this accident occurring precisely as appellee described could of course be considered by the jury in assessing the credibility or weight of all his testimony.

Appellant argues strenuously that the evidence in this case showed appellee guilty of contributory negligence as a matter of law and it was error to let this case go to the jury on that issue. The appellant does not contest the jury's finding of primary negligence, and in considering whether a directed verdict for defendant was proper, the evidence and inferences properly deducible therefrom must of course be viewed in a light most favorable to the plaintiff. If there is any competent evidence, however slight, leading to support the plaintiff's right to recover, the case should be submitted to the jury. York Motor Express Co. v. State, supra.

It is pertinent to observe that the accident here occurred on an open country road, and not within a town or city. Within municipal limits there are 'favored zones' created by statute, so that pedestrians have a right of way at crosswalks and intersections, and motorists have a right of way between intersections. Code (1957, 1967 Repl. Vol.), Art. 66 1/2, § 236. The principle applicable in the absence of statutory direction has been expressed as follows:

'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.' Flohr v. Coleman, 245 Md. 254, 265, 225 A.2d 868, 874 (1967).

This doctrine of reciprocal rights appears to be based on the realization that outside of towns and cities the scarcity of sidewalks makes reasonable the use by pedestrians of the roadway itself.

Notwithstanding this doctrine of reciprocal rights appellant contends that earlier Maryland decisions make Klohr contributorily negligent as a matter of law when he stands on a highway in darkness with nothing to signal his presence. In Vokroy, Adm'r v. Johnson, 233 Md. 269, 196 A.2d 451 (1964), plaintiff was suing for a wrongful death caused by defendant motorist striking decedent. Decedent's car had run out of gas at night on a country road. He and his passengers had obtained gasoline and were attempting to restart the automobile. A passenger testified that when last seen, decedent was standing against the left side of the car (which was slightly on the pavement), facing away from it. The circumstances of the case compelled plaintiff to call defendant as an adverse witness. He testified he saw the stopped car and veered to the left but as he passed decedent walked into the side of his vehicle. Plaintiff having called this witness, and not being able to contradict or deny his testimony, was bound by it. In addition, what physical evidence there was tended to corroborate defendant's version of the accident. We held as a matter of law plaintiff was negligent and a directed verdict for the defendant was proper.

Vokroy was found to be controlling in Greer v. King, 247 Md. 577, 233 A.2d 775 (1967). There plaintiff was walking down a country road at night when he saw defendant's car approaching from his rear. He crossed from the side of the roadway where he was walking and positioned himself on the other side, attempting to hitchhike. Although he had actual knowledge of the approach of the automobile, he maintained this position and was struck. He testified he could have taken two steps backward onto the shoulder and removed himself from potential danger, but did not do so because the shoulder was muddy. A judgment n. o. v. on the basis of contributory negligence was affirmed by this Court.

We do not find these cases controlling. Vokroy is apparently simply another in a long series of cases where we have held that a pedestrian crossing a public highway, at least in darkness, is required in the exercise of due care to look for approaching traffic, and to heed what he sees. The most recent case illustrating this principle is Reid v. Pegg, 256 Md. 289, 260 A.2d 38 (1969). There plaintiff was attempting to cross two lanes of a four-lane highway. She said she looked and saw no traffic before she began to cross and...