Francies v. Debaugh

• Decision Date: 09 February 1950
• Docket Number: 78.
• Citation: 71 A.2d 455,194 Md. 448
• Parties: FRANCIES v. DEBAUGH.
• Court: Maryland Court of Appeals

71 A.2d 455

194 Md. 448

FRANCIES v. DEBAUGH.

No. 78.

Court of Appeals of Maryland.

February 9, 1950

John Grason Turnbull, Towson, and Roszel C. Thomsen Baltimore (Clark, Thomsen & Smith, Baltimore, on the brief) for appellant.

Daniel E Klein and Michael Paul Smith, Baltimore (J. Elmer Weisheit Jr., Baltimore, on the brief), for appellee.

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

COLLINS, Judge.

This is an appeal by William Lokein Francies, defendant below, appellant here in a suit for damages as a result of an automobile accident from a judgment on verdict of a jury in favor of Joseph Clinton Debaugh, plaintiff below, appellee here.

The facts of the case for the purpose of this opinion follow. The appellant shortly after 6:00 p. m. on March 25, 1947, was operating his truck in a northerly direction on Cowenton Avenue, which runs north and south, in Baltimore County. The weather was clear and the road was dry. Where Cowenton Avenue ends at its intersection with the Joppa Road there is no traffic control signal. The automobile of the appellee was being operated in an easterly direction on the Joppa Road which runs east and west. Cowenton Avenue, as it approaches Joppa Road is twenty feet in width. However, about sixty feet before it intersects and 'dead ends' with Joppa Road it gradually widens in a 'Y' shape and becomes sixty-six feet in width at the place it intersects with and 'dead ends' with Joppa Road. The appellant, driving north on Cowenton Avenue had the option of turning either east or west into the Joppa Road and at the intersection turned left to go west on Joppa Road and collided 'head on' with appellee's automobile. The appellee, proceeding in an easterly direction on Joppa Road, which is about twenty feet in width, intended to make a right-hand turn into Cowenton Avenue at the time of the collision. At the trial, the police officer, who investigated the accident, testified that there was an odor of alcohol on the breath of the appellant but that he was not under the influence of alcohol. Appellant admitted that he had stopped at a tavern and had two bottles of beer.

The appellant claims that the trial judge erred in his charge to the jury because he failed and refused to instruct as to the requirements of Code 1947 Supplement, Article 66 1/2, section 170(b). Radcliffe v. Texas Supply Co., Md., 69 A.2d 813. This section provides: 'Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.' The appellant claims that the Court erred in refusing his seventh prayer which was based on this provision of the Code and which reads as follows: 'You are instructed that the driver of a vehicle intending to turn to the left at an intersection shall approach the said intersection as close to the center line as possible on the right half of the roadway, and after entering the intersection, the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.'

To sustain this contention the appellant argues in this Court that the intersection of Cowenton Avenue with Joppa Road begins some distance south of the point where Cowenton Avenue runs into Joppa Road. With this contention of the appellant we cannot agree. Code 1947 Supplement, Article 66 1/2, section 2(20), gives the following definition of intersection: '(Intersection.) The area embraced within the prolongation or connection of the lateral curb lines, or if none, the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.' We hold that the words 'the intersection' as used in Article 66 1/2, section 170(b) supra, for the purposes of this case, means the place where Cowenton Avenue runs into without crossing Joppa Road. Black's Law Dictionary, Third Edition, page 1001; Buckey v. White, 137 Md. 124, 129, 111 A. 777; Brown v. Patterson, 141 Md. 293, 299, 118 A. 653; Hendler Creamery Co. v. Friedman, 160 Md. 526, 528, 154 A. 93; York Ice Machinery Corp. v. Sachs, 167 Md. 113, 118, 173 A. 240; Brown v. Bendix Aviation Corp., 187 Md. 613, 618, 51 A.2d 292. There is no evidence in this case that the appellant in his 'approach for a left turn' made it 'in that portion of the right half of the roadway nearest the center line thereof [Cowenton Avenue] and after entering the intersection' [the place where Cowenton Avenue runs into without crossing Joppa Road] 'the left turn' was 'made so as to leave the intersection to the right of the center line of the roadway [Joppa Road] being entered.' In fact, one witness testified that the appellant was coming up the left-hand side of Cowenton Avenue and cut the corner as short as possible and was as close to the west side of Cowenton Avenue as he could get. There being no evidence that the defendant complied with the provisions of Article 66 1/2, section 170(b), supra, this instruction was properly refused. The Court in its supplemental charge said: 'If you find, therefore, that the defendant is guilty of negligence alone, if you find that the defendant did come around on the left side of the road, didn't go out and make the turn in the proper way, but came to the left side, ran into the plaintiff in this case and caused the injuries complained of, if you find that the plaintiff was not [guilty] of any negligence on his part.' Furthermore, the Court in his charge said to the jury that it was the duty of the driver of an automobile to yield the right of way from the right. He said: 'You are instructed that under the law in the State of Maryland it is the duty of the driver of an automobile to yield the right of way from the right which is at the intersection when there is a danger of a collision; if you find there is any evidence in the case of the plaintiff failing to yield the right of way to the defendant, if you so find then your verdict must be in favor of the defendant.' He further said in his charge: '* * * You are instructed that the intersection of Joppa Road and Cowenton Avenue constitutes an intersection of the right of way law even though Cowenton Avenue intersects Joppa Road on the south.' As there was no doubt in the case that the defendant was coming from plaintiff's right, this amounted to an instruction that the defendant had the right of way at the intersection. The Court's charge left to the jury the determination as to whether the defendant kept to the right of the intersection. Appellant could hardly complain about the refusal of this instruction based on Article 66 1/2, section 170(b), supra, because if it had been granted it would have benefited the appellee rather than the appellant.

At the end of the charge one of the jurors remarked: 'May I ask one question? In the prayer about the right of way of an intersection, when I received my driving license in 1923, any dead end street, whether there is a stop sign there or not, you are supposed to come to a dead end stop., Cowenton Avenue is a dead end street.' As a result of that inquiry the Court called the jury's attention to the fact that he had granted certain instructions or prayers and that these prayers set forth the rules of law governing the case and the jury was bound by the law embodied in those instructions. The defendant's second granted prayer instructed the jury as follows: 'You are instructed that under the law of the State of Maryland, it is the duty of a driver of an automobile, approaching the intersection, to yield the right of way to traffic approaching said intersection from the right which is at the intersection or so close thereto that there is danger of a collision; that if you find from the evidence in the case that the plaintiff failed to yield the right of way to the defendant, and that such failure to yield the right of way was a direct cause or contributing factor to the happening of the accident, if you so find, then your verdict must be in favor of the defendant.' Article 66 1/2, section 176(a). Clautice v. Murphy, 180 Md. 558, 26 A.2d 406. The sixth granted prayer of the defendant follows: 'You are instructed that the intersection of the Joppa Road and Cowenton Avenue constitutes an intersection within the meaning of the right-of-way law even though Cowenton Avenue intersects Joppa Road only on the south.' The appellant complains that the juror had an erroneous conception of the law and the judge failed to state correctly for the benefit of the jury the point of law involved. The second and sixth granted prayers of the defendant, supra, constituted an absolute answer to the juror's question. We see no merit in appellant's complaint.

Prior to the trial of the case the appellant requested an examination of the appellee by Dr. Roy W. Locher. This permission was given. Dr Locher who made the examination for the appellant was called as a witness by the appellee. He testified in part as follows: 'Prior to examining this patient we contacted the attending physician, Dr. J. G. Miller, he stated that it was all right for us to see him. There was a fracture of one or two ribs on the left side. I do not recall off-hand how many.' Dr. Locher further testified that he talked to the appellee and the appellee claimed 'presence of a fracture of five ribs on his left side. I stated...