Brooks v. Childress

• Decision Date: 17 May 1951
• Docket Number: No. 153,153
• Citation: 198 Md. 1,81 A.2d 47
• Parties: BROOKS et al. v. CHILDRESS et al.
• Court: Maryland Court of Appeals

Page 1

198 Md. 1

81 A.2d 47

BROOKS et al. v. CHILDRESS et al.

No. 153.

Court of Appeals of Maryland.

May 17, 1951.

J. Cookman Boyd, Jr., and Henry M. Decker, Jr., Baltimore (James W. Hughes, Elkton, and Paul C. Wolman, Baltimore, on the brief), for appellants.

Clater W. Smith, Baltimore (E. D. E. Rollins and Wm. B. Evans, Elkton, and Clark, Thomsen & Smith, Baltimore, on the brief for Arthur Wesley.

Theodore Sherbow, Baltimore (James J. Lindsay, Jr., Baltimore, and Omar D. Crothers, Jr., Elkton, on the brief), for G. N. Childress, etc.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

These appeals are from judgments for costs in favor of the appellees, defendants below, upon verdicts directed by the court.

On October 18, 1948, at about 3:45 P.M., the weather clear and the highways dry, Arthur Stanley Wesley, (Wesley), seventeen years of age, erroneously named in the amended declaration as Stanley Wesley, was operating a 1949 Pontiac Sedan, owned by his father, Arthur Wesley, one of the appellees, in a southerly direction on U. S. Route 40, a dual lane boulevard highway, a short distance from Elkton, Maryland. Each lane of this highway was twenty-two feet in width and separated by a grass plot forty feet wide. At the intersection of the Nottingham Road and Route 40 there was a cross-over or paved lane thirty feet in width traversing the grass plot and connecting the north and south bound lanes. The 'cross-over' allows traffic in the southerly lane of Route 40 to cross the grass plot and the north bound lane and enter Nottingham Road. As Wesley approached the Nottingham Road, with seven passengers in the car with him, he turned left into this cross-over leaving the south bound lane of Route 40 with the purpose of entering Nottingham Road and stopped in the cross-over very close to the north bound lane. In crossing the north bound lane he collided with a tractor-trailer of the Childress Transfer Company (Childress), one of the appellees.

Three of the eight occupants of the Wesley car, including the driver, were instantly killed and four others died shortly afterwards. The only survivor was a two-year old boy, who was rendered unconscious. From directed verdicts for the appellees, in a suit in tort, the appellant appeals. Of course, therefore, we should resolve all conflicts in the evidence in favor of the appellant and assume the truth of all evidence and all inferences which may be naturally and legitimately deduced therefrom which tend to support appellants' claim.

Walter Edward Lawrence, a witness produced by the appellants, testified that he was driving his truck north on Route 40 for the purpose of picking up his two children at the Nottingham Road. The children were in the middle of the dual highway between the two lanes on the grass plot. Before turning left into the cross-over, he opened the door of his truck and looked south on Route 40 and saw a vehicle which proved to be the Childress tractor-trailer back of him about four-tenths of a mile. He determined that he had plenty of time to cross the highway. He turned left into the intersection and stopped with the back end of his truck just clearing the north bound lane of Route 40. At that time Wesley stopped his car directly opposite the door of the truck with his front wheels very near the north bound lane. As Wesley stopped he turned his head and looked at Mr. Lawrence. The truck, being high, he could see Wesley's head and face because they were at a lower level. Lawrence said at that time the tractor-trailer was two- tenths of a mile from him. Wesley then took his gaze off of Lawrence and pulled out to cross the highway. As Wesley started to cross the highway Lawrence diverted his glance from him to his children. Wesley crossed to the other side of the highway and Lawrence then heard the impact caused by the collision between the tractor-trailer and the Wesley automobile. Mr. Lawrence said: 'The truck was then approaching there, it went out of my vision, and it looked as though to me that they both tried to get out of one another's way, and truck pulled around and Wesley pulled around and they had the impact, and the accident occurred in the back of my truck, and I didn't see the impact.' Wesley had passed the middle of the highway before the impact. The tractor-trailer was on the right side of the highway. Mr. Lawrence said that he had been operating a motor vehicle for twenty years and he could not estimate the speed of the tractor-trailer. He said: 'I saw the truck approaching here (indicating) as his car passed the center and I looked out my other window and saw parts of the car and the truck going through the guard rail and rolled over.'

The tractor-trailer, weighing more than 13 tons and loaded with bales of cloth, coming slightly down grade, skidded approximately fifty feet before striking the Wesley vehicle. After the collision the tractor-trailer continued slightly down grade for a distance of 150 feet, pushed the passenger car against a guard rail and knocked over seven or eight steel guard posts and stopped over-turned in a field to the east of the north bound lane. The Wesley car was knocked to pieces and scattered over an area of seventy-five feet.

The appellants here, of course, are not affected by the contributory negligence of Wesley and the doctrine of contributory negligence is not applicable in this case. The doctrine of last clear chance does not apply in this case for that doctrine is invoked only to avoid the bar of contributory negligence. Where there is no contributory negligence as in the case at bar the doctrine of last clear chance of course does not apply. Legum v. State, 167 Md. 339, 355, 173 A. 565; State for Use of Landis v. B. & O. R. R. Co., Md., 77 A.2d 2, 5 and cases there cited; Baltimore Transit Co. v. O'Donovan, Md., 78 A.2d 647, 649.

In the case of Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349, Miller was a passenger in Shedlock's automobile which was the unfavored car. Marshall's tractor-trailer was the favored vehicle. In that case it is said, 186 Md. at page 237, 46 A.2d at page 358: 'Miller, of course, could not be bound by Shedlock's contributory negligence, and if Shedlock and Marshall were both negligent, and the negligence of both contributed to the accident he (Miller) might have gotten a verdict against both. Shedlock's negligence had to be the proximate cause of the accident before Marshall was absolved.' The question, therefore, before this Court in the Childress case is whether, assuming the truth of the evidence and inferences which may be naturally and legitimately deduced therefrom which tend to support the appellant's claim, the negligence of Arthur Stanley Wesley was the proximate cause of the accident.

In Sun Cab Co. v. Faulkner, 163 Md. 477, 163 A. 194, the Sun cab had the green light before it, giving it the right of way. A Yellow cab carrying an injured man, at an officer's instruction, went through the red light and collided with the Sun cab. In that case Chief Judge Bond said at pages 479 and 480, of 163 Md., at page 195 of 163 A.: 'But taking it as proved that there was negligence in the rate of speed in this instance, that negligence, in the approach, must be found to have been the cause of the collision, or there can be no legal responsibility for it on the Sun Company's part. The principal cause was, obviously, the unexpected coming through of the Yellow cab, in violation of the right of way. Its doing so was not a consequence of any speed maintained by the Sun cab. Whatever other consequences the speed might have threatened, it could not be said that it threatened to cause a collision with a cab so coming through. On the contrary, the situation created by it, if left to itself, with all its natural consequences would have been a safe one; and it was only by the intervention of the independent agency that the collision resulted, an independent agency not set in motion or at all influenced by the driving of the Sun cab. That being true, the assumed negligence of the driver of that cab could not be treated as a proximate, legal cause of the accident and injury.'

In this case the appellant seems to rely on the speed of the tractor-trailer as proof of negligence. The speed limit was fifty-five miles an hour and there is no evidence that Childress was exceeding that limit. To show speed, appellant presents skid marks fifty feet in length before the impact, the tearing down of steel guard posts by the tractor-trailer after the accident and the complete destruction of the passenger car. The evidence shows that this truck weighed more than 13 tons and contained a load of bales of cloth. No evidence was produced to show that the skid marks indicated excessive speed. No evidence was introduced to show the type of brakes on the truck, the condition of the road surface other than it was dry, the condition of the treads on the tires of the truck, or the reaction time of the driver. The driver here had no reason to believe that Wesley would disregard the boulevard law and pull out in the road in front of him. Of course, when a heavily loaded tractor-trailer strikes an automobile, the impact naturally causes much destruction. Negligence cannot be proven from testimony as to what happened after the accident. There is no evidence as to what occurred in the tractor after the collision. The truck driver may have been thrown from his position back of the wheel, with no control of the operation of the truck. The effect of the impact might have been to accelerate its speed by jamming the accelerator to the floor of the vehicle. As Childress points out, it is not difficult to understand how several steel guard posts 125 feet away from the collision could have been destroyed by the tractor-trailer weighing over 13 tons and heavily loaded, which was not being steered or controlled in any manner by its driver. There is no evidence...