Brown v. Ellis

• Decision Date: 12 November 1964
• Docket Number: No. 28,28
• Citation: 204 A.2d 526,236 Md. 487
• Parties: William BROWN v. Paul D. ELLIS and John R. Foster, Inc.
• Court: Maryland Court of Appeals

Page 487

236 Md. 487

204 A.2d 526

William BROWN v. Paul D. ELLIS and John R. Foster, Inc.

No. 28.

Court of Appeals of Maryland.

Nov. 12, 1964.

Sidney Blum, Baltimore, for appellant.

Gilbert A. Hoffman and A. Douglas Owens, Baltimore (Eugene A. Edgett, Jr., Baltimore, on the brief), for appellees.

Before HENDERSON, C. J., and PRESCOTT, MARBURY, SYBERT and OPPENHEIMER, JJ.

PRESCOTT, Judge.

In a case seeking damages resulting from a collision between plaintiff's passenger car and the tractor-trailer truck belonging to the corporate defendant, which was being operated by its employee, the other defendant, the trial court submitted the questions of primary and contributory negligence to the jury. The jury rendered a verdict in favor of the defendants, and, after judgment against him for costs was entered, the plaintiff has appealed.

Appellant's only contentions are: (1) that the question of primary negligence should not have been submitted to the jury; and (2) a like contention with reference to contributory negligence. He claims he was entitled, as a matter of law, to an instruction in his favor on both issues.

I and II

It is established law that in a proper case, the trial court may, and should, direct a verdict for the plaintiff on the issue of the negligence of a defendant. Dunnill v. Bloomberg, 228 Md. 230, 179 A.2d 371; Shriner v. Mullhausen, 210 Md. 104, 122 A.2d 570, 821. And in considering the propriety of taking the question of primary negligence from the jury and holding a defendant guilty of negligence as a matter of law, the evidence must be considered in a light most favorable to the defendant. This means, of course, that the Court must assume the truth of all credible evidence tending to sustain the defense presented, and draw all fairly deducible inferences from that evidence favorable to the defense. Cf. Havre de Grace Fireworks Co. v. Howe, 206 Md. 158, 110 A.2d 666; Ragonese v. Hilferty, 231 Md. 520, 191 A.2d 422.

It is likewise proper, when the evidence warrants it, for the court to instruct the jury that the plaintiff has been shown to be free of contributory negligence as a matter of law. Lindenberg v. Needles, 203 Md. 8, 97 A.2d 901, 40 A.L.R.2d 226; Reid v. Humphreys, 210 Md. 178, 122 A.2d 756; Maryland Rule 552 a. In determining whether a plaintiff is entitled to such an instruction, the evidence must be submitted to the same test we set forth above, and considered in a light most favorable to the defense. This is the reason for considering I and II together.

The evidence, in a light most favorable to the defendants, is as follows. On September 22, 1959, at about 2:20 p. m. the appellee-defendant Ellis was operating a 48 foot tractor-trailer truck, owned by his employer, the corporate appellee-defendant in an easterly direction on Biddle Street in Baltimore City. The streets were dry and the atmosphere clear. Traffic on Biddle Street at its intersection with Washington Street (a street running in a north-south direction) is controlled by a stop-sign; in other words Washington is a 'boulevard' thoroughfare under our law, and Biddle is an unfavored highway. At their intersection, both streets are about the same in width: some 35 to 36 feet; and Washington is a one-way street for traffic going north. Parking is permitted on both sides of Washington Street. A very short distance from the intersection, there is an underpass on Biddle Street, i. e., to the east of Washington Street.

Ellis testified that when he came to the stop-sign, he came to a complete stop and looked in both directions on Washington Street; there were no cars parked thereon, and he could see approximately 800 feet in each direction; there was no traffic on Washington Street; he 'entered across the street' and was traveling about ten to fifteen miles per hour; he was watching straight ahead, but, when about threefourths of the way across the intersection he 'glanced in both directions' on Washington Street, and also looked in his mirrors, the two side ones giving some vision to the right and left depending upon their slant; again, he saw no traffic on Washington, and he proceeded on.

When his cab was 10 to 15 feet on the east side of the intersection with the rear portion of the truck still occupying a portion of Washington Street, he glanced in his rear view mirror and, for the first time, observed the plaintiff approaching at a 'fast' speed; after his cab reached a point about 20 feet east of the intersection, which meant that he had traveled some 55 feet from his stop, and at a time when the truck was going 15 to 20 miles per hour, the plaintiff, going north on Washington, ran his passenger car into the rear wheels of the trailer.

There was further testimony, viewed favorably to the defense, that would permit a finding that there was no damage to the truck except to the rear wheels (and tandem) of the trailer, and it was undisputed that the point of impact was within the intersection at about the center of Washington Street.

The plaintiff testified he had traveled in an easterly direction, and had entered Washington Street from Chase Street, a distance of some 300 to 400 feet south of the place of the collision. He proceeded north on Washington (as noted above, a one-way street), in the second lane of traffic from the left. His testimony relative to the operation of the vehicles just prior to, and at the time of, the collision conflicts sharply with that of the operator of the truck; but, since the evidence must be considered most favorably for the defense for the purpose of answering the questions here involved, it is unnecessary to state it.

The question of whether the truck operator was guilty of primary negligence as a matter of law gives us little difficulty. Appellees' main thrust here is that the applicable statute, the so called Boulevard Law, Code (1957), Article 66 1/2, Section 233, requires the operator of an unfavored motor vehicle to come to a full stop, and yield the right of way to vehicles 'approaching' on the favored highway. They argue that the evidence favorable to them showed that he stopped at the stop-sign, and at that time no vehicles were 'approaching' on the favored thoroughfare. This fact, they say, is supported by appellant's statement that he entered Washington Street only 300 to 400 feet south of Biddle Street. And, if appellant were not 'approaching' when the truck operator entered Washington Street, the operator had complied with both provisions of the above Act--he had stopped and he had yielded the right of way to 'approaching' vehicles--consequently, the question of whether he was guilty of primary negligence was properly submitted to the jury.

With this conclusion, we are unable to agree. The question was answered at least as early as the case of Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349 (1946), which has frequently been cited, with approval by this Court. ¹ There, Chief Judge Marbury, for the Court, reviewed and analysed the previous Maryland decisions and said 'What the statutes, as interpreted by these decisions [all previous Maryland decisions on the subject], mean is that a driver who enters, from an unfavored highway, an intersection with a favored boulevard or arterial highway where there are no traffic controls must yield the right of way to all the traffic he finds there during the entire time he is there. If he does not, and a collision results, he is at fault and cannot recover against the other driver unless the doctrine of last clear chance enters the case. So far as his rights as a plaintiff are concerned, it makes no difference what the other party does in the first instance. He is negligent because he has not yielded the road. Being negligent himself, his action is barred. But when he is made a defendant in an action for damages resulting from the collision, he can always show that the other party was also guilty of negligence contributing to the accident, and if he succeeds in this, no verdict can be obtained against him. Then both parties are negligent.'

It is the duty of the driver of a large, ponderous rig to proceed onto a boulevard (not controlled by signals or officers) from a stop-sign only with great caution; he should do so at a reasonable speed under the circumstances (compare Article 66 1/2, Section 211[e])--such a speed as to be able to reduce, or to stop if necessary, the forward movement of his vehicle in order to yield the right of way--; he should look observantly and with effect for traffic upon the favored highway, and a 'glance' will not suffice. We do not deem it desirable to labor the question further. By a simple application of the law as enunciated in the above quotation to the facts of this case, it is clear, we think, that the truck driver was guilty of negligence as a matter of law, and the jury should have been so instructed.

We realize that the Legislature has placed a heavy responsibility upon the operator of a large, cumbersome vehicle (as well as the operators of other vehicles) when entering upon a through street, but this Court has stated that the salutory purpose of the Boulevard Law is to facilitate the flow of traffic on the favored street; and, under proper circumstances, the rights of the owners and operators of such vehicles are protected by the law relative to contributory negligence and the doctrine of last clear chance.

The question in regard to contributory negligence presents a different picture. Appellant contends that he is within the boulevard rule on this issue as a matter of law. There can be little doubt that the decisions of this Court have jealously guarded and upheld the favored driver's right of way in boulevard cases. In fact, the Maryland decisions seem to go as far as any of our sister States in upholding such rights of way. However, no decision of this Court has ever stated that such a favored driver has a complete and absolute right of way which relieves him of all duty to...