Boyd v. Simpler

• Decision Date: 15 March 1960
• Docket Number: No. 164,164
• Citation: 158 A.2d 666,222 Md. 126
• Parties: Louis BOYD, etc. et al. v. Carroll Alton SIMPLER.
• Court: Maryland Court of Appeals

Page 126

222 Md. 126

158 A.2d 666

Louis BOYD, etc. et al. v. Carroll Alton SIMPLER.

No. 164.

Court of Appeals of Maryland.

March 15, 1960.

Dissenting Opinion March 23, 1960.

K. Thomas Everngam, Denton, and William H. Adkins, II, Easton, for appellants.

F. Gray Goudy, Baltimore (Herbert Burgunder, Jr., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

After submitting the questions of primary negligence of the defendant and contributory negligence of the plaintiffs' decedent to the jury and the rendition by the jury of verdicts in favor of the plaintiffs, the learned trial judge granted motions by the defendant for judgments n. o. v., on the ground that the plaintiffs' decedent had been guilty of contributory negligence as a matter of law. There are two actions involved: one by the administrator of Pearl M. Boyd, who was killed by an automobile operated by the appellee, under Code (1957), Article 93, § 112, to recover for the decedent's pain, suffering and funeral expenses; the other was brought by the State, to the use of the widower and infant daughter of the decedent, under Code (1957), Article 67, Section 4 (Lord Campbell's Act).

The defendant-appellee concedes that the question of his alleged primary negligence was properly submitted to the jury, hence the principal issue is: Did the evidence disclose that Mrs. Boyd was guilty of contributory negligence as a matter of law? If she were, that disposes of the appeal.

In making this determination, the testimony must be examined in a light most favorable to the appellants. On June 13, 1959, at about 8:15 p. m., while it was still broad daylight on a clear evening, appellants' decedent, Mrs. Boyd, a white female fifty-six years of age, wife of Louis Boyd and mother of an infant daughter, Hazel Boyd, was violently struck by a Buick sedan, which was being operated by the appellee; and she died some forty-five minutes thereafter from the injuries she received in the collision.

The accident took place on Main Street in the village of Greensboro, Caroline County. Main Street in this area is twenty-one feet wide with two and one-half feet dirt shoulders on each side, and it runs in a generally north-south direction (at the point of impact, it actually runs in a northwest to southeast direction--for the purposes of this opinion it will be referred to as though it ran from north to south). To the north, it makes a gradual bend to the east into Church Street, with visibility on Main Street for a distance of approximately 350 feet from the scene of the collision. Formerly, it had been a principal artery for traffic running through the village, but at the time of the accident a by-pass accommodated most of the through traffic. There were no cross-walks, traffic lights or sidewalks. The neighborhood was residential, and the posted speed limit was 25 miles per hour.

Appellants and their decedent resided on the east side of Main Street, at a point some 360 feet distant southerly from the intersection of Main and Church Streets. On the day of Mrs. Boyd's death, it had rained. By 8:15 p. m. the weather had cleared, but the street was wet and puddles of water were standing in it. Shortly before 8:15 p. m. an automobile operated by Mrs. Mary Carroll, a life-long friend of Mrs. Body, came south on Main Street and stopped on the westerly side of the street, approximately opposite the Boyd home. Mrs. Carroll parked as far off the paved road as she reasonably could, which means that her car was about two or two and one-half feet on the shoulder. The easterly portion (perhaps two and one-half to three feet) of her car was on the paved roadway. From this point there was clear and unobstructed visibility north for about 350 to 360 feet to the bend in the street and south from the bend to beyond the Carroll car.

Having stopped her car, Mrs. Carroll remained in the driver's seat and called across the street to Mrs. Boyd. Mrs Boyd left her house on the east side of Main Street and crossed over to the Carroll car, where she stood close to the driver's (east) side of the car, and started to talk to Mrs. Carroll. At the time when Mrs. Boyd crossed the street, appellee's car was not in sight and there were no motor vehicles in the area, other than Mrs. Carroll's parked car.

They had hardly begun their conversation, when the Buick automobile operated by the appellee came around the bend in the street from the north. The appellee was barefoot and clad only in shirt and shorts. He had been drinking rum and was highly intoxicated. He had no driver's license. He proceeded south on Main Street at a speed variously estimated at from forty-five to sixty-five miles per hour. There is no evidence that he sounded his horn, or that he made any effort to stop or to slow down. At a point estimated as between 15 feet and 150 feet north of the Carroll car, his automobile struck a puddle of water and its front end skidded or swerved to the left (east). His vehicle struck and fatally injured Mrs. Boyd, swerved back into a straight course on the road, and left the scene of the accident.

There is some question as to just what part of appellee's car hit Mrs. Boyd. It may have been the left front, center front or right front. The impact was so violent that it threw her up over the hood and then onto the easterly dirt shoulder, some seventy-five feet from where she had been struck. The hood ornament of the car was broken, the hood was dented, and portions of Mrs. Boyd's glasses were found around the windshield of the car on the driver's side.

There is also some question as to the precise point of impact with reference to the center of the road; there being testimony by one witness that the last time he saw her before the collision she was running south along Mrs. Carroll's car, which would indicate that Mrs. Boyd may possibly have been on the right-hand (west) side of the center of the road when struck and other testimony that she was only about one step from the left-hand (east) shoulder, and running when struck down. Appellee did not testify and thus shed no light on these problems, or on the question of why he was unable to avoid striking a pedestrian who had been, or should have been, clearly visible to him for 350 to 360 feet before he hit her.

Do the above facts show that Mrs. Boyd was guilty of contributory negligence as a matter of law? This Court, while acknowledging the provision of Code (1957), Article 66 1/2, Section 236(a), that between street crossings in towns and cities vehicles shall have the right of way over pedestrians, has consistently held that the fact that a pedestrian is crossing a street between street crossings is a fact to be considered on the question of his or her negligence, but such fact, standing alone, is insufficient to establish that the pedestrian is prima facie guilty of negligence. Nelson v. Seiler, 154 Md. 63, 139 A. 564; Webb-Pepploe v. Cooper, 159 Md. 426, 430, 151 A. 235; Lusk v. Lambert, 163 Md. 335, 337, 163 A. 188; Ebert Ice Cream Co. v. Eaton, 171 Md. 30, 35, 187 A. 865; Weissman v. Hokamp, 171 Md. 197, 202, 188 A. 923, 189 A. 813; Geschwendt v. Yoe, 174 Md. 374, 379, 198 A. 720; Thursby v. O'Rourke, 180 Md. 223, 228, 23 A.2d 656; Love v. State, 217 Md. 290, 297, 142 A.2d 590. For an analysis of many of the Maryland cases upon this subject, see Due and Bishop, Motorists and Pedestrians, 11 Md.L.Rev. 1. No absolute and comprehensive rule as to what does, and what does not, constitute contributory negligence can be formulated which would be applicable to all cases. It is, like primary negligence, relative in nature and not absolute, and being relative, it (again like primary negligence) necessarily depends upon the particular circumstances of each case. Yockel v. Gerstadt, 154 Md. 188, 189, 140 A. 40; Thursby v. O'Rourke, supra, 180 Md. at page 229, 23 A.2d at page 659; Ford v. Bradford, 213 Md. 534, 544, 132 A.2d 488.

This Court has also repeatedly stated that contributory negligence as a matter of law cannot be found, unless the evidence permits of but one interpretation which shows some distinct, prominent and decisive act in regard to which there is no room for ordinary and reasonable minds to differ. Thomas v. Baltimore Transit Co., 211 Md. 262, 267, 127 A.2d 128, and cases cited.

It will be immediately noted that we are not dealing with the usual 'pedestrian crossing between intersections' case. Here, a lady was standing in the highway, close beside a parked car talking to a friend. The highway was a lightly travelled street of a small country village; and the speed limit thereon was 25 miles per hour. Suddenly from around a bend came an automobile bearing down upon her. It was being driven at an excessive rate of speed by an intoxicated driver. That an emergency confronted her, there is little doubt. Had she remained stationary, she may have been unhurt; but the evidence clearly supports the inference that she decided to run for the east side of the road toward her house. One witness said that if she had made another step she would have been off the hard-surface part of the road. At this point, she was probably in a place of safety if the appellee had had his car under proper control, but he struck a puddle of water at high speed and skidded or swerved to his left, and in the end he had fatally injured the appellants' decedent. If Mrs. Boyd were struck when one step from the east edge of the road, and the jury had ample evidence to so have concluded, it would mean that the appellee was well to the left of his center of the road at the time of the collision. The above does not describe a situation where the pedestrian was disputing a motorist's right of way; Mrs. Boyd was unquestionably using every means at her command to accord the motorist the right of way, irrespective of whether she or the defendant had it at the point of collision.

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