Bush v. Mohrlein
| Decision Date | 11 November 1948 |
| Docket Number | 11. |
| Parties | BUSH v. MOHRLEIN. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; John T. Tucker, Judge.
Action by Casper G. Mohrlein against Herbert A. Bush to recover damages sustained in automobile collision. From a judgment for the plaintiff, defendant appeals.
Reversed.
Foster H. Fanseen, of Baltimore (Philip S. Ball, of Baltimore, on the brief), for appellant.
James A. Biddison, Jr., of Baltimore, for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
This action was brought by Casper G. Mohrlein in the Superior Court of Baltimore City to recover damages sustained to his Oldsmobile sedan on December 22, 1945, when it was struck at the intersection of Homestead and Polk Streets by a delivery car used by Herbert A. Bush, defendant, in the dry cleaning business, and driven by William Killman, his employee.
It appeared at the trial that a considerable amount of snow had been removed from the middle of the streets which are approximately 20 feet wide, and that the paths made in the streets by the snow plow were icy. Plaintiff testified that he was driving east on Homestead Street at about 6 p. m. at a speed of about 20 miles per hour. He said that he was driving upon the left half of the street because an automobile was parked upon the right half. He claimed that on reaching Polk Street, he looked to the right and left, but did not see any car until he was struck. Killman testified that he was going north on Polk Street, and when he reached the curb line of Homestead Street he saw plaintiff's car entering the intersection; but that, since he had the right of way, he continued north but ran into the right side of plaintiff's car. He further testified that he did not apply his brakes because he had no chains on his wheels and he thought it was impossible to stop suddenly on the icy street.
The trial judge refused to direct a verdict for defendant. The jury then rendered a verdict in favor of plaintiff for $510.80. Defendant appealed from the judgment entered thereon, contending that he should have been given a directed verdict on account of plaintiff's contributory negligence.
The Maryland Motor Vehicle Law provides that vehicles shall have the right of way over other vehicles approaching at intersecting public roads from the left, and shall give right of way to those approaching from the right. Code Supp.1947 art. 66 1/2, § 176. In construing this statute, we have ruled that it does not mean that a vehicle approaching an intersection from the right has the right of way under all circumstances so as to render a driver from the left who fails to yield the right of way guilty of negligence. In other words, the right of way, is not an absolute privilege of the vehicle approaching from the right. The statute gives only a relative right dependent upon the particular circumstances, such as speed and the distance of the vehicles from the intersection. Hence, it is the duty of the driver approaching from the left to yield the right of way to the vehicle approaching from the right only in those instances where the vehicles are approaching the intersection under such circumstances that a collision is likely to occur. If the vehicle approaching from the left is crossing the intersection at a time when the vehicle approaching from the right is at such a distance from the intersection that its movement could not reasonably be supposed to create any danger that the two vehicles would collide, then the driver approaching from the left is not required to wait until the vehicle from the right has passed. Taxicab Co. v. Ottenritter, 151 Md. 525, 532, 135 A. 587; Hendler Creamery Co. v. Friedman, 160 Md. 526, 154 A. 93; Jersey Ice Cream Co. v. Bach, 161 Md. 285, 290, 291, 157 A. 277; Minch v. Hilkowitz, 162 Md. 649, 656, 161 A. 164; Paolini v. Western Mill & Lumber Corp., 165 Md. 45, 52, 166 A. 609; Warner v. Markoe, 171 Md. 351, 357, 189 A. 260; Wlodkowski v. Yerkaitis, Md., 57 A.2d 792.
However, the Court of Appeals has made it plain that the right of way rule prescribed by the Legislature must not be ignored. We have warned that, because of the duty imposed by this provision of the Motor Vehicle Law, the first and chief thought and care of the driver of a vehicle approaching an intersection should be given to those vehicles that might be approaching from the right. We have emphatically stated that, in order to promote the safety of all persons using the public highways of the State, too much stress cannot be laid upon the importance of the duty of the motorist to look carefully for any vehicles that might be approaching an intersection from the right. Chiswell v. Nichols, 137 Md. 291, 306, 112 A. 363; Askin v. Long, 176 Md. 545, 547, 6 A.2d 246.
In the case at bar plaintiff's car was eastbound and defendant's car was northbound, and the two cars arrived at the intersection at the same time. As there was no traffic light or stop sign at the intersection, defendant had the right of way under the statute. Plaintiff claimed that he did not see defendant's car approaching, and that, if he had seen it, he could have stopped within a distance of five feet. However, he cannot avoid the charge of contributory negligence merely by saying that he did not see any car approaching. Killman testified that he entered Polk Street at Aisquith, one block south of Homestead. It was admitted that the city street lamps were lighted. Plaintiff admitted that he did not need eyeglasses, and that he 'could see a whole block.' Yet he did not explain how he failed to see the oncoming car, saying only: 'I don't know where he came from.' We accept the rule that where a witness testified that he looked and listened but did not see or hear a certain object, which, if he had actually looked and...
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