Eastern Contractors v. Zinkand, 88

• Decision Date: 08 February 1952
• Docket Number: No. 88,88
• Citation: 199 Md. 250,86 A.2d 492
• Parties: EASTERN CONTRACTORS, Inc. v. ZINKAND et al.
• Court: Maryland Court of Appeals

Page 250

199 Md. 250

86 A.2d 492

EASTERN CONTRACTORS, Inc. v. ZINKAND et al.

No. 88.

Court of Appeals of Maryland.

Feb. 8, 1952.

Paul R. Kach, Baltimore (F. Edw. Wheeler, Baltimore, on the brief), for appellant.

Wm. D. Macmillan and Wm. A. Fisher, Jr., Baltimore (Semmes, Bowen & Semmes, Baltimore, on the brief), for appellee.

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

MARKELL, Judge.

This is an appeal from a judgment for defendant on 'motion for a directed verdict' in a negligence case tried before the court without a jury. The rules of practice and procedure do not provide for a directed verdict in a non-jury case. Trials Rule 5, Demurrer to Evidence, authorizes a motion, 'at the close of the evidence offered by an opponent for a dismissal on the ground that upon the facts and the law he has shown no right to relief.' In the Reporter's Explanatory Notes to the rules it is stated, 'Rule 5 merely provides the equivalent of a directed verdict in cases tried by the court alone pursuant to Trial Rule 9.' Code, 1947 Supp., page 2075. Whether Rule 5 may in any event provide more or less than the exact equivalent of a directed verdict, we need not consider. From the record it is clear that the court regarded the 'motion for a directed verdict' as involving only the legal sufficiency of the evidence; we shall so regard it.

Plaintiff sued for damages to his truck by collision with defendant's truck. Defendant counterclaimed for damages to his truck in the same collision. On defendant's motion, at the close of plaintiff's evidence, judgment was entered for defendant in the original case and for the cross-defendant on the counterclaim. The motion apparently was made and granted on the ground of lack of evidence of negligence of defendant and clear evidence of contributory negligence on plaintiff's part.

The collision occurred at Friendship Airport, while it was in course of construction and not open to the public, on or near the airplane taxiway, which was being constructed or paved with asphalt. The taxiway was not, properly speaking, a road, but paved with asphalt it could readily be used for passage by surface vehicles of less delicate construction than airplanes. It was about two hundred feet wide, ran in a straight line approximately east and west, and had been completed, for four or five hundred feet east from an asphalt plant. At the time of the collision plaintiff's truck was hauling about twelve tons of hot asphalt from the plant to the east end of the then finished part of the taxiway. It was running about twenty to twenty-five miles an hour, and was about one hundred feet from the east end of the then finished part of the taxiway. From six o'clock in the morning till about four in the afternoon, the time of the collision, plaintiff's truck had been running up and down the taxiway, carrying hot asphalt from the asphalt plant to the east end of the finished part of the taxiway and dumping the asphalt beside the taxiway to be used in finishing more of the east end.

A road, which is referred to as the 'circle way' and apparently was, or connected with, a highway outside the airport grounds, curved from the southeast into the east end of the taxiway. Apparently some other road curved into the west end of the taxiway near the asphalt plant. The business relations, if any, between plaintiff and defendant, or either and other contractors or the principal contractor, if any, are not shown by the evidence.

Plaintiff's chauffeur says he was told to keep to the left side of the road. The foreman said, 'Keep them heavy trucks off the middle, away from the asphalt, because it specks up and busts the middle. Stay on the edge, the edge is easy to repair. Let the other trucks coming in stay on the right hand side [i. e., the right hand side looking east].' The chauffeur says, 'Where I saw this truck [defendant's] coming over the hill, I thought he was going the way the rest was going. * * * I didn't pay him no mind. * * * When I taken notice, I heard his brakes crying. I seen him coming to the cab. I cut hard to the left. That broke my steering arm. I ran off to the left.' Plaintiff's truck was struck 'right behind the cab'. Plaintiff's chauffeur had driven off the air-strip [taxiway] 'about forty or fifty feet' before the accident occurred. 'The brakes crying. That's what made me pay attention to it. * * * He was skidding into me. * * * [After the accident, the driver] told me the brakes locked. * * * On that special day we didn't pull to the right, stayed on the left that day.' At the time of the accident defendant's truck apparently was carrying stone to the asphalt plant. There is no evidence whether this was the first or the twenty-first trip defendant's truck made at Friendship Airport that day or ever or what, if anything, or by whom, defendant's chauffeur had been told about keeping to his left and allowing the asphalt trucks to use their left hand side of the taxiway. Another witness testified that plaintiff's truck was off the left edge, 'because he was hit right at the cowl of the truck on the right hand side of the truck. Another witness testified that he was hauling stone into the airport, during the day he passed asphalt trucks, coming from the asphalt plant. 'They were travelling to the left of the road. * * * I travelled to my left * * * every time I came in [that day].'

A witness Eisenhower testified to the same effect. He was hauling stone to the asphalt plant. He had made six or seven loads that day. 'Well, nobody told me where to travel at, but when I came in I always watched myself for asphalt trucks, and gave them the right of way and I always kept away from them as I came into the airport; and I noticed the trucks were coming up on that side of the road, * * * and I always kept to my left and kept out of their way. It was hot stuff, and they was supposed to get to the machine as quick as they could and get back to the plant, to keep the plant going. I kept out of their way, no matter where they was at.' On cross-examination, Eisenhower testified, it was apparent that plaintiff's truck had turned to its left off the runway...