Dix v. Spampinato, 977

• Decision Date: 08 September 1975
• Docket Number: No. 977,977
• Citation: 344 A.2d 155,28 Md.App. 81
• Parties: Arnita Denise DIX et al. v. Patricia Mae SPAMPINATO et al.
• Court: Court of Special Appeals of Maryland

Page 81

28 Md.App. 81

344 A.2d 155

Arnita Denise DIX et al. v. Patricia Mae SPAMPINATO et al.

No. 977.

Court of Special Appeals of Maryland.

Sept. 8, 1975.

Francis N. Iglehart, Towson, with whom was Michael J. Lambros, Cockeysville, on the brief, for appellants.

James E. Gray, Baltimore, for appellee Patricia Mae Spampinato, and William A. Hegarty, Towson, for appellee Jeanette Horak.

Argued before THOMPSON, MOYLAN and MENCHINE, JJ.

MENCHINE, Judge.

Arnita Denise Dix (hereinafter referred to either as appellant or pedestrian) was a 1971 graduate of Western High School in Baltimore City, who had earned a scholarship to Bentley College in Waltham, Massachusetts. She had gained employment for the summer months of 1971 as a nurse's aide in the Bent Nursing Home, located on the west side of Reisterstown Road in Reisterstown, Maryland.

On August 27, 1971, at about 3:30 p. m., she alighted from a public transportation bus on the east side of the Reisterstown Road at a point south of the place of her employment. The bus stopped somewhat north of the ordinary bus stop because of puddles of water left in the road at that place. At that point Reisterstown Road is a four lane dual highway, with two marked lanes northbound and two marked lanes southbound, divided by double line yellow markings. There is no grass or concrete median strip. Each lane is about 10 feet wide.

Very seriously injured while attempting to cross the highway, pedestrain and her father, as next friend during a period of infancy, brought suits in the Circuit Court for Baltimore County for damages for personal injury and for medical and hospital expenses against Patricia Mae Spampinato, operator of a motor vehicle that struck her, and against Jeanette Horak, operator of a vehicle that had come to a stop upon the highway to permit her to pass. The crossing point was between intersections. There was a marked crosswalk to accommodate the passage of pedestrians about 200 feet south of the accident scene. At the conclusion of the plaintiffs' cases the trial judge granted separate motions for directed verdict filed by the defendants. From the judgments against them thereafter extended Arnita Denise Dix and her father have appealed to this Court.

The duty of an appellate court on appeal in such circumstances was clearly and succinctly stated in Campbell v. Jenifer, 222 Md. 106, 110, 159 A.2d 353, 355:

'In a case such as this, where the trial court has granted either a motion for a directed verdict, or a motion for a judgment n. o. v., this Court must, in determining whether the ruling was proper, resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff.'

The Facts

Pedestrian's own description of her crossing was as follows:

'When it (northbound traffic) was clear I crossed to the centerline, I looked up, and the driver (Jeanette Horak) of the (Volkswagen) bus waved to me to go across. I looked up to make sure that the bus had come to a stop, and then I started to walk out from the bus. * * * She (operator of the Volkswagen) looked at her hand, and she waved for me to cross the street. * * * (She) moved it from left to right. * * * the next thing I remember I was on the ground.'

The record shows the following inquiries by and her responses to, the trial court:

'THE COURT: Young lady, did you ever see the vehicle which you now claim struck you?

THE WITNESS: No, sir.

THE COURT: Was there anything to prevent you from seeing it if you had looked?

THE WITNESS: Well, while I was standing on the centerline the Volkswagen bus-

THE COURT: Yes. But after you started to move forward you would have to pass in front of the Volkswagen before you got to the next traffic lane, right?

THE WITNESS: Yes, sir.

THE COURT: As you were passing in front of the Volkswagen bus did you look to your right to see whether or not traffic was proceeding south in the other lane of traffic?

THE WITNESS: I don't remember, judge. I remember walking out from the centerline in front of the bus, and that's all.

The Volkswagen (hereinafter called 'standing vehicle') was being operated by Jeanette Horak. The pedestrian walked in front of and continued past the standing vehicle, and was struck by a Buick automobile (hereinafter called 'moving vehicle') being operated by Patricia Mae Spampinato. The pedestrian, 5 feet 3 inches tall, was unable to see over the top of the standing vehicle.

The following excerpts from the testimony of the operator of the moving vehicle, called as a witness by appellant, give her version of the incident:

'Q At that time can you recall what the weather conditions were?

A Yes, sir, it was raining very hard.

Q And can you recall passing Caraway Road southbound in the right-hand lane?

A Yes, sir.

Q And what did you observe next?

A Well, when I was riding down Reisterstown Road, and I came to Caraway Road, I'm not sure of the distance, but in the left-hand side, the left lane was a Volkswagen bus, I didn't see her traveling, I just saw her stopped there.

Q And when you made that observation what action did you take?

A Well, I was wondering why she had, why it was there, why she had stopped, there's no red light, there's no way to turn, and with it raining, the first thing that came to my mind was that she had stalled or-

Q Could you give us your approximate speed at that time, if you can recall?

A Yes, sir. I went, I was very, I was wondering why she was there, so immediately I looked down, which my husband has told me to do so many times-on the left-hand side there are the red lights for generators, and things like that, that go on, which has happened to me before, because-so I looked there to see if everything, you know, I looked down to see if everything was okay, and that's when I happened to notice how fast I was going.

Q And how fast were you going?

A It was between twenty and twenty-five.

Q What I was getting at was whether the fact that this Volkswagen bus was stopped in the left-hand lane, whether that caused you to look down at the instruments on your dashbord?

A Sure, I was very conscious, I was wondering- you know, you see a car stopped in the left lane, you wonder why. But I had cars behind me, and I never thought ever that there was anybody there.

Q How far behind you were the cars following you, if you can recall?

A It wasn't bumper-to-bumper. When you look out it's a busy, you know, highway, but when you look out there are cars behind you. I guess a couple car lengths, I guess it would be something like that; it wasn't, you know, bumper-to-bumper.

Q And then what happened next, Mrs. Spampinato?

A Well, I passed the Volkswagen bus, and as I did I heard a thump. And I said, oh my goodness, I wonder what that was or what that is? And I looked in my mirror, and the traffic had stopped, of course I stopped right away. And I was afraid to stay in the middle of the road, so I backed back a little and got, and I was in front of McDonald's. And I sat there, and got out, that's where I parked my car, and then I got out, and then that's when I saw Miss Dix.

Q Her body was in the left lane?

A Yes, sir.'

These excerpts from the record depict most favorably the testimony of an eyewitness called to the stand by appellant:

Q And you say you saw a lady?

A Yes.

Q What did you observe after that?

A She was walking north on the side of the road, and began to cross into the highway, and she crossed to the center strip of Reisterstown Road.

Q Yes?

A And then she stood there.

Q What did you observe after that, Mrs. Spurrier?

A I glanced to my left, to McDonald's, and when I looked back there was a Volkswagen bus parked at the centerline.

Q In what direction was the Volkswagen bus facing?

A South.

Q Yes?

A And the girl was still on the center strips.

Q And what did you see next?

A I saw the girl look towards the Volkswagen bus, and then she started to move, to leave where she was standing, and I saw a white car pass by, and after the white car passed by I saw the girl rolling in the road.

Q Let me go back a step. The Volkswagen bus was stopped in which lane, southbound lane, if you can remember?

A The left.

Q The left-hand lane?

A Yes.

Q With reference to that lane, can you recall observing which lane the lady was rolling in after the white car passed by?

A She was in the left lane.

Q Her body was in the left lane?

A Yes.

Q Could you see, from where you were seated in your car could you see any point of contract between the lady's body and the white car that passed by?

A I didn't see it when they came in contact, no.

Q Would you describe for the jury the manner in which the lady crossed the highway to the centerline and also the manner in which she moved away from the centerline after looking up at the Volkswagen bus?

A From the time she left the side of the road she was walking on an angle towards the yellow strip.

Q After she got to the yellow strip, and you say she looked up at the Volkswagen bus and then started again, what direction was she walking in?

A I couldn't be positive of that; she just sort of took off, and I couldn't say what angle.

THE COURT: Would you tell the jury, please, Mrs. Spurrier, precisely what do you mean by she took off?

THE WITNESS: Well, in the beginning she was walking slow, and when she, as I say, took off, she wasn't walking slow, she started out fast.

Q The second time, Mrs. Spurrier when you say she started out fast, was she walking or was she running, as far as you could see?

A As far as I could see, she wasn't walking but she wasn't running.

Q Could you describe the weather conditions at the time, please.

A Yes, it was raining very bad.

Q Could you describe the visibility at the time.

A I'd say it was poor visibility.

Q * * * Can you describe for...