Flohr v. Coleman

• Decision Date: 26 January 1967
• Docket Number: No. 13,13
• Citation: 245 Md. 254,225 A.2d 868
• Parties: Elsie V. FLOHR, surviving widow, etc. v. David Lee COLEMAN.
• Court: Maryland Court of Appeals

Page 254

245 Md. 254

225 A.2d 868

Elsie V. FLOHR, surviving widow, etc. v. David Lee COLEMAN.

No. 13.

Court of Appeals of Maryland.

Jan. 26, 1967.

Samuel D. Hill, Baltimore (Buckmaster, White, Mindel & Clarke, Baltimore, and Richard E. Zimmerman, Frederick, on the brief), for appellant.

James McSherry and Frederick J. Bower, Frederick (McSherry & Burgee, Frederick, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, McWILLIAMS and FINAN, JJ.

MARBURY, Judge.

This is a motor tort action brought by Elsie V. Flohr (Roberts) on behalf of the surviving children of Kenneth M. Flohr, and as administratrix of his estate. She made no personal claim for any damages for herself as surviving widow. The declaration alleged that the death of Kenneth M. Flohr was caused by the negligence of David Lee Coleman, defendant. The case was tried before a jury in the Circuit Court for Frederick County, Judge Robert E. Clapp, Jr., presiding. The questions of the defendant's negligence and the deceased's contributory negligence were submitted to the jury, which found a verdict in favor of the defendant.

On appeal from the judgment on the verdict, the appellants contend that the court's instructions to the jury were insufficient to fairly submit the case to the jury as to certain issues and that the court erred in sustaining objections to questions asked the defendant by the Flohrs' attorney concerning the defendant's knowledge of laws pertaining to a driver's duty to keep a lookout and to have headlights which show certain distances. On December 31, 1964, at approximately 9:15 p. m., Kenneth M. Flohr was struck and killed while walking north on the east side of State Route 75 by an automobile owned and operated by the defendant. Neither the defendant nor Flohr had been drinking. The accident occurred approximately three-tenths of a mile north of the intersection of Clemsonville Road and Route 75 in Frederick County. Route 75, at the point where the accident accurred, was straight and level and ran through open farm country. It was not artificially illuminated and was twenty-one feet in width, excluding the earth shoulders. The roadway was comprised of an eighteen foot concrete strip with one and one-half foot asphalt shoulders on each side. The earth shoulders on either side of the roadway were three feet, eight inches wide. There were no side-walks. Defendant admitted that he had used the road often and that he knew pedestrians walked on or along the side of the road.

Defendant, Coleman, was traveling north on Route 75 at a rate of speed from between thirty-five to forty-five miles per hour, when an automobile traveling in the opposite direction on Route 75 passed the defendant with its headlights on high beam. Coleman testified that he slowed his vehicle and pulled to the right. He stated that the bright lights of the oncoming vehicle temporarily blinded him. Just after the southbound car passed, defendant's companion, Arthur Greenholtz, Jr., who was riding on the front seat beside him, cried out 'There's a man,' but before he finished that statement, defendant heard a 'thump.' Neither had seen Flohr prior to the accident. Coleman immediately turned his vehicle sharply to the left and applied his brakes.

At the time of the accident, Flohr was dressed in black trousers and a black pull-over sweater which had a white stripe on the front. A witness for the appellants, Harold D. Kline, testified that he had seen Flohr walking on the traveled portion of the highway some time before the accident. Kline had traveled in a southerly direction, facing Flohr. The white stripe on the front of Flohr's sweater was visible to Kline. It was not shown that the stripe was visible to someone approaching Flohr from the rear.

There was controversy over whether or not Coleman drove off the hard surface of the road and whether or not Flohr was walking on the asphalt extension or on the dirt shoulder. The investigating police officer found a skid mark from the right tire of the Coleman vehicle. The skid mark began eight inches from the east edge of the hard surface of the highway, twenty-five feet north of where the officer placed the approximate point of impact. The officer placed the point of impact on the east asphalt extension. In a statement to the police, Arthur Greenholtz, Jr., defendant's companion, stated that when the approaching vehicle refused to dim its lights, defendant 'went to the side of the road,' and that when the approaching car passed, defendant 'went back on the road.' In his testimony, Greenholtz stated that defendant's vehicle 'stayed on the edge' of the paved road and that Flohr was on the paved portion.

Appellants objected to the failure of the trial court to include in its instructions these portions of the following instructions requested by their trial counsel:

'2. * * * It is the duty of the pedestrian to use reasonable care in walking on a street, and to act as an ordinarily careful person would act under similar circumstances. But the driver of a motor vehicle is required to exercise much greater vigilance and caution to look out for the pedestrian than the pedestrian is required to exercise to look out for the driver. This is because of the fact that the pedestrian cannot usually harm the motorist by the way he uses the street and needs to look only after his own safety, whereas the motorist may kill or seriously injure the pedestrian and therefore should look out for the safety of the pedestrian as well as his own. * * *

'3. Pedestrians walking along public highways outside of towns and cities where there are no sidewalks ordinarily use the sides of the road and vehicles the middle. Therefore, pedestrians must expect to find and watch for the approach of vehicles in the middle of the road. Drivers must expect to find and be alert for pedestrians walking along or on the sides of the road. * * *'

The trial court refused to include these requested instructions in its instructions to the jury because it felt that to do so would overemphasize and change the degree of care required of a pedestrian and of a motorist, and it felt that the requested instruction-pedestrians must expect to find and watch for the approach of vehicles in the middle of the road and drivers must expect to find and be alert for pedestrians walking along the road-was erroneous, because it thought that a pedestrian has no greater legal right to travel on a particular portion of a country road than does the driver of a vehicle.

The court instructed the jury as to the burden of proof imposed on the appellants in proving negligence. It defined negligence 'as either doing something that a reasonably prudent man would not have done under the circumstances as you find them from the evidence, or failing to do something that a reasonably prudent man would have done under the circumstances that you have outlined in the evidence.' The court then defined proximate cause. In its instruction on the motorist's duty in cases of this nature, the court told the jury of the duty of a motorist to slow down when blinded by approaching lights in order to avoid striking something that may be within the blind area. The court also defined and explained contributory negligence.

As to the various rights of persons using the highway, the court stated:

'Now I advise you also that there is no law in this State that requires a person to walk to the left facing traffic, that is, there is no provision of the Motor Vehicle law of the State that requires a person to do that. Where Mr. Flohr was walking and the circumstances under which he was walking is entirely a question of this due care that I have advised you about, because pedestrians and motor vehicles have an equal right on the public highways of the State and each must use due care under the circumstances to avoid any possible accident that may or may not develop, so that in the judgment of this case it boils down to a question of due care under all of the circumstances of the case as you may find them.'

After counsel for both sides were afforded an opportunity to challenge the given instructions, the court gave additional instructions on the rights of users of the highway:

'I stated to you also that each person, the driver of an automobile and a pedestrian, has equal rights to use the highways of the State. That is particularly true, of course, where there are no sidewalks, and each has an equal duty to look out for the other. In other words, a pedestrian is under duty to look out for automobiles on the road, and automobiles by the same token are under a duty to look for pedestrians on the road, and all of these items are to be considered by you in connection with the consideration of due care and negligence and contributory negligence that I discussed with you previously.'

The text of the appellants' requested instructions followed closely the language in the opinions of this Court in Wiggins v. State, to Use of Collins, 232 Md. 228, 192 A.2d 515; Heffner v. Admiral Taxi Service, 196 Md. 465, 77 A.2d 127; Fotterall v. Hilleary, 178 Md. 335, 13 A.2d 358; and Holler v. Lowery, 175 Md. 149, 200 A. 353. Each of these cases involve a discussion of the care required in the operation of a motor vehicle as compared to the care required of a pedestrian. There is no doubt that the abstract statements of law contained in the requested instructions are good law; but none of the above cases relied on by the appellants involve the granting or refusal of such instructions as those sought here. The reasoning of courts in opinions is not addressed to juries and is not always adapted to use in instructions to them. Neas v. Bohlen, 174 Md. 696, 199 A. 852. Cf. Garfinkle v. Birnios, 232 Md. 402, 404, 194 A.2d 91.

The court below correctly stated the rights of motor vehicular and pedestrian users of the highways, and it properly refused the above requested instructions. Its instruction generally...