Cierpisz v. Singleton

• Decision Date: 27 June 1967
• Docket Number: No. 387,387
• Citation: 230 A.2d 629,247 Md. 215
• Parties: Francis Anthony CIERPISZ v. Phyllis Kay SINGLETON, etc., et al.
• Court: Maryland Court of Appeals

Page 215

247 Md. 215

230 A.2d 629

Francis Anthony CIERPISZ v. Phyllis Kay SINGLETON, etc., et al.

No. 387.

Court of Appeals of Maryland.

June 27, 1967.

Frederick J. Green, Jr., Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellant.

Allan Heneson, Baltimore, for appellees.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

McWILLIAMS, Judge.

We are urged to say, for the first time, that the failure of a guest to make use of the seat belt provided by the host is, perse, evidence of contributory negligence.

On 25 July 1964 the appellant (Cierpisz) was 17 years old, single and the owner of a new Corvair. The appellee, Phyllis Kay Singleton (Phyllis), aged 19, was at the time, his finance e. It was about 7:30 P.M. when they left her home in Baltimore 'to go for a ride.' At 9:30 they were in Harford County traveling east on the Jarrettsville Road, 19 feet wide, with shoulders 3 feet wide, and divided into two lanes by a white line. The surrounding countryside is generally level and 'open.' The night was clear; the road was dry.

About a mile from the place of the accident Arthur P. Bergman, Jr., entered the Jarrettsville Road just ahead of Cierpisz. He and his passenger were going to visit Joey Ellis who lives on the right (south) side of the road. The collision occurred when Bergman attempted a right turn into the Ellis driveway. The driveway, which crosses a shallow drainage ditch alongside the road, is 6 feet wide. There is no flare or apron where it joins the road and it was agreed that to make a right hand turn into the driveway, without getting into the drainage ditch, one first had to swing to the left of the center line.

According to Cierpisz he was about 100 feet behind Bergman as they approached the Ellis driveway. He said he saw Bergman's 'left blinker go on' and that when Bergman 'applied his brakes' he (Cierpisz) 'started slowing down.' When Bergman 'started going into the left lane * * * (he) imagined he (Bergman) was turning into the left side of the road.' He couldn't see whether there was an intersecting 'road over there-because it was dark.' As Bergman 'got into the left lane * * * (Cierpisz) started passing him on the right and he (Bergman) just swerved back and hit * * * (him) and knocked * * * (him) into the ditch and then skidded off.'

Bergman was familiar with the area. He testified that when he turned on his 'blinker * * * to make a right hand turn' he saw a car about 300 feet back of him. He said 'it was so far back' that he didn't 'pay much attention to' it. When he 'went to turn in' Cierpisz collided with him. The photographs show damage along the right side of Bergman's car and along the left front and side of the Cierpisz car. He admitted he went about a foot to the left of the center of the road before turning right. Cierpisz, on the other hand, said 'more than 75%' of Bergman's car went to the left of the center line. Later he said Bergman 'was entirely to the left of the center.'

Cierpisz said he was 'practically abreast' of Bergman when he (Bergman) turned. He described it as a 'sudden whipping to the right.' At the moment of impact, Cierpisz said, none of his wheels was on the shoulder. He estimated his speed to have been 20 miles per hour and Bergman's to have been 10 miles per hour when the cars collided. Bergman said he had 'just about come to a complete stop.'

Phyllis' description of the accident was much the same as that of Cierpisz. She said Bergman 'put on his left blinker.' She told how she was injured when she was thrown up against the rear view mirror. Asked why she did not use the seat belt she said, 'There was no reason to, it seemed to me.'

Charles Thomas Gast lives about 150 feet east of the Ellis driveway on the opposite side of the road. He was 15 years old on the night of the accident. He went outside to close up his chicken house and after he had done so he lingered a while to smoke a cigarette because smoking in the house was verboten. He said he saw a car (Bergman) coming toward him with its turn signal flashing to indicate a turn to the right. He saw the car 'slow down and almost come to a stop.' He saw also another car (Cierpisz) coming around the curve about 500 feet west of the Ellis driveway. He said 'he was doing a good rate of speed for the curve he was on.' He told how Bergman 'started to slow down to make his curve, turn in, * * * and the other car didn't slow down. He hesitated a little bit and then he squealed his brakes and collided with Art.' At the moment of collision Cierpisz, he recalled, was 'half on the road and half off' on the dirt shoulder. He thought Bergman had 'pulled about a foot to a foot and a half to the left' of his line of travel before turning to the right. Gast's parents had been living there for 5 or 6 years. He and Bergman were school friends.

The case was tried before Sodaro, J. and a jury on 9, 10 and 11 May 1966. Cierpisz, when the evidence was concluded, asked the court to instruct the jury that there was evidence sufficient to support a finding that Phyllis was guilty of contributory negligence because she failed to warn the driver of the approaching danger. He also asked the court to instruct the jury as follows:

'17. If you find that the Cierpisz vehicle was equipped with seat belts, that the infant plaintiff was not using the belt provided for the passenger in the right front seat at the time of the happening of this accident, and that if she had been using it she would not have struck her left cheek on the rear view mirror of the automobile, then you may find that the complained of injury to her upper left cheek just below the left eye and the resultant scar were due to her failure to use the seat belt and that, therefore, she cannot recover therefor in this action.'

In his charge the trial judge instructed the jury that 'as a matter of law' there was no evidence in the case 'legally sufficient to prove that * * * Phyllis * * * was guilty of any negligence contributing to her injuries.' The seat belt instruction was specifically refused and no mention of seat belts was made in the charge. The jury returned a verdict of $7,500 in favor of Phyllis against both Bergman and Cierpisz. A verdict of $2,000 was also returned in favor of her mother against both defendants. The trial judge indicated he would grant the motions for a new trial unless plaintiffs filed a remittitur of $2,000. As a result the judgments made absolute were for $6,500 and $1,000 respectively. Both Bergman and Cierpisz appealed. Bergman dismissed his appeal on 19 July 1966.

I.

Cierpisz invites our attention first to the court's refusal to submit to the jury the issue whether Phyllis is to be charged with contributory negligence 'in failing to correctly observe' Bergman's actions and 'in failing to warn (Cierpisz), when there was ample time to do so.' If Bergman had signalled for a right turn, he argues, she had 'precisely the same opportunity to observe it' as did he, and when he attempted to pass to the right of Bergman 'there was plenty of time' for her to realize that he 'had misinterpreted the signal' and to warn him that Bergman intended to turn to the right. He suggests that if he is to be found negligent in 'misinterpreting or misreading the right turn signal' she must be declared equally negligent. Cierpisz seems to be taking it for granted that his negligence could arise only out of his failure to observe the right turn signal. We think there was other evidence sufficient to support a finding that Cierpisz was negligent. Gast, for instance, said he was 'half on the road and half off' on the dirt shoulder. Gast also said Bergman went to the left of his line of travel only 'a foot to a foot and a half.' Since Cierpisz admitted he could not see any intersecting roads or streets the jury might well have concluded he was negligent in attempting to crowd past Bergman on the shoulder instead of waiting for an unclear situation to fully develop.

We have not found in this record any evidence that Cierpisz at any time before reaching the scene of the accident was inattentive, reckless, incompetent or in any way indifferent to the safety of himself or his fiance e. Other than Gast's comment that 'he was doing a good rate of speed for the curve he was on' there is nothing to support a finding that his speed was unlawful, unreasonable or improper. Nor does the evidence suggest that Phyllis observed anything he did not observe or that she was at any time under the impression that she was observing something that was not readily apparent to Cierpisz. It should be noted also that the dangerous situation developed suddenly and proceeded to its denouement in a few seconds.

In support of his contention Cierpisz has directed our attention to a number of our earlier decisions. ¹ In all of them we find factual disparities which make the quoted excerpts inapplicable to the instant case. In our judgment State for Use of Shipley v. Lupton, 163 Md. 180, 191, 161 A. 393, 398 (1932) and the earlier cases therein discussed are controlling here. In Lupton the driver turned left in the path of an approaching car. Holding that the trial judge erred in submitting to the jury the issue of the contributory negligence of the guest, Judge Adkins, for the Court, said:

'* * * There is not the slightest indication from anything that appears in the record that at any time prior to the moment of making the turn the driver was careless or incompetent in any respect, or that he needed any warning to prevent him from turning his car in front of an approaching car which was plainly visible, or that the passenger had time to give the warning after the intention to make the turn was discovered. A passenger would be not only a nuisance but a menace if he were required to be constantly warning the driver of the approach of cars plainly visible to him, and that without regard to distance of the approaching car.'

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