East Coast Freight Lines, Inc. v. Mayor and City Council of Baltimore

• Decision Date: 01 April 1948
• Docket Number: 96.
• Parties: EAST COAST FREIGHT LINES, Inc., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE. SAME v. STATE, to Use of GRETSINGER, et al.
• Court: Maryland Court of Appeals

58 A.2d 290

190 Md. 256

EAST COAST FREIGHT LINES, Inc., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

SAME v. STATE, to Use of GRETSINGER, et al.

No. 96.

Court of Appeals of Maryland

April 1, 1948

Appeals from Superior Court of Baltimore City, Baltimore City Court and Court of Common Pleas; Emory H. Niles, Judge.

Actions by Elmer D. Willis and others, by the State of Maryland, to the Use of Eunice Lewis, widow, and others, by the State of Maryland, to the Use of Maxine M. Gretsinger, widow, and others, and by Brady Gillikin, against the East Coast Freight Lines, Incorporated, and against the Mayor and City Council of Baltimore, wherein the East Coast Freight Lines filed third party complaints against the Mayor and City Council and by the State of Maryland, to the Use of Anna S Schoblocher (now Amstutz), against the Consolidated Gas Electric Light & Power Company, and others, for damages arising out of an accident involving a tractor-trailer. The East Coast Freight Lines filed third party complaints in the first four actions against the Mayor and City Council of Baltimore. From judgments in favor of the City in all cases, and in favor of the plaintiff in the Gretsinger case, the East Coast Freight lines and others appeal.

Reversed and cases remanded.

Lester H. Crowther and Richard M. Carlin, Asst. City Sol., both of Baltimore (Simon E. Sobeloff, City Sol., of Baltimore, on the brief), for M. & C. C.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

COLLINS Judge.

These cases involve appeals in suits against the Mayor and City Council of Baltimore (the City), where demurrer prayers of the City were granted and judgments entered in its favor. The appeals are taken by East Coast Freight Lines, Incorporated (East Coast); State of Maryland to the Use of Maxine M. Gretsinger, Widow, et al.; State of Maryland to the Use of Anna S. Schoblocher (now Amstutz), et al. East Coast also appeals from the refusal of the trial judge to grant a directed verdict for East Coast in the suit against it by State of Maryland to the Use of Maxine M. Gretsinger, Widow, et al., resulting in a judgment in favor of the Gretsingers. Where demurrer prayers are granted we must state the facts in a manner most favorable to those against whom the rulings were made.

Peter T. Scholblocher leased the tractor-trailer owned by him to East Coast under a leasing agreement which began at one o'clock P.M. on July 26, 1945, and expired at six o'clock P.M. on July 28, 1945. The East Coast had authorization from the Interstate Commerce Commission for the transportation of cargoes over Routes 1 and 40 through Baltimore City. Its usual route was on Route 1 to and through Baltimore in order to go by the East Coast Terminal, which was at Albemarle and Granby Streets.

Schoblocher operating the truck for the East Coast had made approximately thirty-five trips for East Coast from Richmond to New York City and return. The first trip was on February 3, 1945. Prior to July 26, 1945, when the accident happened the last trip was on June 21, 1945. He made no trips between June 21, 1945, and July 26, 1945.

Schoblocher left Richmond, Virginia, about six o'clock P.M. on July 26, 1945, for New York City operating his tractor-trailer, leased to East Coast with a load of about 21,000 pounds which consisted largely of cellophane and seventeen drums of sizing in bulk. About one o'clock A.M. on July 27, 1945, the wather being rainy and drizzling and the night dark, he was driving on Washington Boulevard in Baltimore City. In the tractor-trailer with him was one Vernon M. Gretsinger, a member of the Armed Forces, who got in the tractor-trailer somewhere between Richmond and Baltimore. When Schoblocher reached Caton Avenue, according to the testimony of Roland Shaw, who was operating his own truck and flat trailer immediately ahead of Schoblocher, there was a detour sign which read: 'Use Wilkens Avenue'. The detour sign was placed there because a bridge on Washington Boulevard was officially closed to traffic beginning on July 5, 1945, to divert traffic and send it north on Caton Avenue. Schoblocher at the detour sign, stopped a few moments and turned on Caton Avenue and proceeded north to Wilkens Avenue. He turned and proceeded east on Wilkens Avenue.

Wilkens Avenue is a public highway of Baltimore City and east from Caton Aveand was 54'2'' wide from curb to curb and gradually widened to 60'1'' in width until it interscted with an alley. At the point where it became 60'1'' in width between curbs there was a grass plot in the center approximately 5' 11'' wide. The grass plot was surrounded by a concrete curb of from 4-1/2'' to 5'' high. Each lane of Wilkens Avenue, where the grass plot was located in the center, was 27'1'' in width. The surface of the bed of Wilkens Avenue was covered with black material and the curbs were constructed of reinforced concrete of a whitish or grayish color. Inside the grass plot at a point about three feet from its west end and in the center thereof was erected a metal lamp post about sixteen feet in height attached to a heavy concrete base. From this first lamp post east the same type of metal lamp post was spaced at regular intervals of about 130' apart to the end of the center plot at Bentalou Street, a distance of five or six blocks. The grass on the plot was green and the metal pole was painted green. There is evidence that at the time of the accident in this case there were no warning signs, shields, barriers, or any other warning device at the west end of the grass plot or on the lamp post erected within three feet from where the grass plot started. There had been storms of extreme intensity in Baltimore City that evening. The Consolidated Gas, Electric Light and Power Company of Baltimore City (Gas Company), who contracted with the City to maintain service on the lights in the grass plot, had 373 cases of trouble in the City and vicinity that evening. At about 9:52 P.M. on that night (July 26, 1945), all of the lights along Wilkens Avenue, including that on the first lamp post at the west end of the center plot, had gone out on account of the storm. At 12:58 A.M. on July 27, 1945, Balderson, a service man in the employ of the Gas Company, was sent out to repair the lights on the poles in the grass plot on Wilkens Avenue. He parked his truck on the south side of Wilkens Avenue and entered a saloon on the corner and was in the process of calling the Gas Company for the purpose of requesting a low power test on the circuit when the accident happened. The lights were not on at the time of the accident. Beginning at the westerly end of the grass plot at the north and south edges thereof, were painted two white lines forming a V which ran westerly for a distance of about thirty-two feet. This V had been repainted and replaced in May, 1945. From Caton Avenue to the point forming the V was a white painted line in the center of Wilkens Avenue which had been repainted on July 26, 1945. The plans and specifications of the grass plot in the center of Wilkens Avenue were approved by the State Roads Commission, the City of Baltimore, and the Public Works Administration of the Federal Government. After the completion of the work there was a joint inspection by the State Roads Commission and the Highway Department of Baltimore City and the work was approved.

Roland Shaw testified further that he could see the headlights and clearance lights of the East Coast truck in his rear view mirror. East Coast truck was not going over twenty-five to thirty miles an hour. Shaw said that immediately before the accident the East Coast truck was right in the middle of the street which was soaking wet and he could not see any lines in the street. He had been using the Wilkens Avenue detour for approximately six or seven weeks. He could see the East Coast's lights just about in the middle of the right hand lane. He did not see any warning signs on the pole the night of the accident. Shaw further said that the East Coast truck was right behind him and in the middle of the right hand lane, 'a little out from me which would put him in the middle of the street.' The East Coast truck was not on the wrong side of the street. When he approached the grass plot in Wilkens Avenue, he pulled to the right to go around it but the East Coast truck did not pull to the right. He could see the lights of the East Coast truck and the truck was a little bit off to one side of him. He was watching in the mirror to see if 'he did pull in and he did not.' He saw East Coast's lights jump up in the air which meant he hit the grass plot and a fraction of a second later there was a terrific explosion. Shaw was about three hundred feet east of the west end of the grass plot when the accident happened. Shaw then seeing the accident, stopped his truck and went back to look at the grass plot, the scene of the accident. He could see where the truck had hit the grass plot by the marks on the road which showed that the left wheel had hit the curb first.

Mr. Jesse J. Hyatt testified that he traveled Wilkens Avenue twice a day and was following the East Coast truck at the time of the accident and was about two truck lengths behind it. East Coast truck 'hung to' the middle of the road all the way in Wilkens Avenue. Hyatt stayed back because he figured East Coast truck would have to pull over where the street narrowed. When he saw East Coast truck was not going to pull over he stayed much behind it. The east Coast truck hit the curb, then hit the lamp post, 'jack-knifed', and shot across the grass plot.

Another tractor-trailer owned by Elmer D. Willis and operated by Lorenzo Lewis, Sr. was proceeding westerly along Wilkens Avenue. The East Coast truck continuing across...