Campbell v. State, to Use of Dix

• Court: Maryland Supreme Court
• Writing for the Court: Before SOBELOFF; DELAPLAINE
• Citation: Campbell v. State, to Use of Dix, 100 A.2d 798, 203 Md. 338 (Md. 1953)
• Decision Date: 08 December 1953
• Docket Number: No. 38,38
• Parties: CAMPBELL et al. v. STATE, to Use of DIX et al. CAMPBELL et al. v. DIX. CAMPBELL et al. v. TRADER.

Page 338

203 Md. 338

100 A.2d 798

CAMPBELL et al. v. STATE, to Use of DIX et al.

CAMPBELL et al. v. DIX.

CAMPBELL et al. v. TRADER.

No. 38.

Court of Appeals of Maryland.

Dec. 8, 1953.

Wm. W. Travers, Salisbury (John W. T. Webb and Webb, Bounds & Travers, Salisbury, on the brief), for appellants.

J. B. Randol Carroll, Baltimore (Thomas F. Johnson, Snow Hill, Hilary W. Gans, Baltimore, and Calvin Harrington, Jr., Cambridge, on the brief), for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

These three suits were brought in the Circuit Court for Wicomico County to recover damages resulting from a collision of an automobile and a tractor-trailer, which occurred on a curve on Route 13 about three miles south of Pocomoke City. The automobile, a 1939 Buick sedan, was driven by Willard M. Dix, age 21, and he was accompanied by Roland J. Trader, owner of the car. They were civilian employees of the United States Coast Guard at Chincoteague, Virginia. Dix was killed and Trader was injured.

The first suit was brought in the name of the State of Maryland under Lord Campbell's Act, Code 1951, art. 67, for the use of Dix's parents, Major Dix and Ethel Mae Dix.

The second suit was brought by Dix's mother as administratrix to recover funeral expenses.

The third suit was brought by Trader to recover for personal injuries and damages to his automobile.

Defendants are George Campbell, trading as Campbell's Express, owner of the tractor; Charles F. Kellam, Campbell's driver; and Savage Truck Line, Inc., owner of the trailer.

The accident occurred on April 15, 1950, at 1:30 a. m. The Buick was southbound, the tractor-trailer northbound. The road, which is 24 feet wide, is separated by a center line into two traffic lanes.

The cases were removed to the Circuit Court for Dorchester County, where they were tried together before a jury.

Trader testified that Dix was driving his automobile entirely to the right of the center of the road, and that the tractor-trailer cut across the center line into the southbound lane. He further testified that Dix tried to avert the collision, but was unable to do so.

On the contrary, Kellam, the truck driver, testified that as he approached the curve, he saw an automobile coming in the center of the road, and he dimmed his lights and turned to the right, but although the front right wheel of the tractor was on the shoulder of the road, the automobile struck the left rear wheel of the tractor and knocked it off. The automobile was hurled about 100 feet to the west side of the road. The tractor-trailer went about 50 feet on the east side of the road.

There was testimony that after the accident there was a cut mark in the road made by the dragging of the left rear brake drum of the tractor, which dropped after the wheel came off. The mark began east of the center line and ran northeastwardly to the place where the truck came to a stop.

The trial judge overruled defendants' motions for directed verdicts, and the jury awarded Dix's parents $2,700, the administratrix $500, and Trader $1,000. The judge overruled defendants' motions for judgments n.o.v., and entered judgments on the verdicts of the jury. Defendants appealed from those judgments.

First. Defendants contended that there was no evidence of negligence on the part of Kellam, the truck driver, legally sufficient to warrant submission of the cases to the jury. The record, however, shows that Trader swore positively that his automobile was entirely in the southbound lane. If that was true, the truck driver must have cut across the center line into the southbound lane. If he did so, he violated the State law commanding that upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except (1) when overtaking and passing another vehicle proceeding in the same direction; (2) when the right half of a roadway is closed to traffic while under construction or repair; (3) upon a roadway divided into three marked lanes for traffic; or (4) upon a roadway designated and sign posted for one-way traffic. Code 1951, art. 66 1/2, § 182.

While the driver of a motor vehicle who violates this statutory rule of the road may not necessarily be negligent, his action is strong evidence of negligence where such violation proximately causes a collision; and the burden is then on him to show that the condition of the road or an emergency in the traffic caused him to be rightfully on the left side of the road. Testimony that a driver of a motor vehicle failed to keep to the right of the center of the highway is legally sufficient evidence to warrant the court in submitting the case to the jury on the question of the driver's negligence. Crunkilton v. Hook, 185 Md. 1, 42 A.2d 517, 519.

Defendants argued, however, that Trader's testimony at the trial was inconsistent with his pre-trial deposition and hence should have been rejected as too contradictory and uncertain to have any probative value. In the pre-trial deposition he swore that he did not know where his car was when it hit the truck. At the trial he said there was a mistake in the deposition, for what he actually meant was that, since he was knocked unconscious, he did not know where his car was after it hit the truck. He then positively testified: 'I was on my right side of the road. I know that. * * * I do know he cut in on us. I know that he was on my right hand side.'

In Slacum v. Jolley, 153 Md. 343, 351, 138 A. 244, this Court, speaking through Judge Offutt, stated the rule that when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain, to be the basis of a legal conclusion. That rule has generally been applied to the testimony of a witness given at the trial at which the objection is made, and is not ordinarily extended to the testimony of a witness who is impeached by proof of a conflicting statement made at some other trial or place. Foble v. Knefely, 176 Md. 474, 485, 6 A.2d 48, 52, 122 A.L.R. 831.

Under the rules of the Court of Appeals, the deposition of any party to a proceeding may be used by an adverse party for any purpose. General Rules of Practice and Procedure, part 2, subd. 1,...