Goosman v. A. Duie Pyle, Inc.

• Decision Date: 12 June 1962
• Docket Number: Civ. No. 12590.
• Parties: Frederick Z. GOOSMAN, to his own use and to the use of Royal Indemnity Company, a body corporate, v. A. DUIE PYLE, INC., a body corporate, Raymond A. Hill, Dennis R. Hill and Harry E. Anderson.
• Court: U.S. District Court — District of Maryland

206 F. Supp. 120

Frederick Z. GOOSMAN, to his own use and to the use of Royal Indemnity Company, a body corporate,

v.

A. DUIE PYLE, INC., a body corporate, Raymond A. Hill, Dennis R. Hill and Harry E. Anderson.

Civ. No. 12590.

United States District Court D. Maryland.

June 12, 1962.

COPYRIGHT MATERIAL OMITTED

Paul Berman and Bayard Z. Hochberg, Baltimore, Md., and Rose Rothenberg, New York City, attorneys for plaintiff Goosman; Paul M. Higinbothom, attorney for use-plaintiff, Royal Indemnity Company.

John F. King, Baltimore, Md., attorney for defendant A. Duie Pyle, Inc.; Benjamin C. Howard and John F. King, Baltimore, Md., attorneys for defendants Hills and Anderson.

NORTHROP, District Judge.

This is a tort action arising out of a collision between an automobile owned and operated by the plaintiff Goosman and a tractor-trailer owned by the two defendants Hill, leased by them to the defendant A. Duie Pyle, Inc., and driven by the defendant Anderson. The case was tried before a jury. During the course of this trial, the plaintiffs dismissed their cases against all of the defendants except the corporation, which had conceded that Anderson was acting as its agent. At the conclusion of the trial, the plaintiffs moved for directed verdicts in their favor on the issues of Anderson's primary negligence and Goosman's contributory negligence. Both of these prayers were denied by the court, and the issues were submitted to the jury. It is from the jury's general verdict in favor of the sole remaining defendant, A. Duie Pyle, Inc., that the plaintiffs seek relief.

As is so common in situations such as this, the plaintiffs have moved for a judgment n. o. v. or, in the alternative, for a new trial. In deciding the questions presented under these motions, the court must apply two somewhat different standards. In ruling upon the motion for a judgment n. o. v., every factual issue must be resolved in favor of the defendant, to the extent allowed by the evidence and the inferences to be drawn therefrom; the evidence must be viewed in the light most favorable to the party prevailing at the trial. On the other hand, a court passing upon a motion for a new trial must weigh all of the evidence to determine whether the verdict was against the clear weight of that evidence or whether the verdict would result in a miscarriage of justice. Williams v. Nichols, 266 F.2d 389 (4th Cir. 1959).

With this in mind, let us reconstruct the facts as the jury must be assumed to have found them — in the light most favorable to the defendant. It is essential to do so in considering the plaintiffs' contentions that the court erred in failing to grant directed verdicts in their favor on the issues of both primary and contributory negligence.

FACTS

The collision occurred on U. S. Route #40, a free-access highway, 950 feet east of its intersection with Maryland Route #152, in Harford County, Maryland. At this point, the highway is divided by a center strip approximately twenty-six feet in width and has two lanes for traffic in each direction. The time of the accident was about 7:00 p. m., December 9, 1959. It was dark, and both vehicles had on their lights. Anderson's tractor was carrying an unloaded, open, flat-bedded trailer with amber and red reflectors and lights along each of its sides; the length of the combined unit was about forty-six feet. Goosman was driving a 1958 Chrysler Imperial, equipped with an automatic throttle; at the time of the accident, this device was in operation and set for the maximum speed limit of fifty-five miles per hour.

Prior to the accident, Anderson's tractor-trailer was at the southern edge of the highway in a private drive at or just east of the crest of a hill. Although his unit was about twenty feet longer than the center strip was wide, Anderson wanted to make a left-hand turn to head west. There was a cross-over directly opposite him for just such a purpose. From his vantage point in the cab of the tractor, looking westward to his left, Anderson could see the roadway for a distance of approximately 600 feet and the reflections of headlights as far as the traffic control signal at Route #152, about 950 feet away. Eastward, to his right, there was a sharp downgrade; so, in that direction, Anderson could see only a distance of some 300 feet.

Before moving from his position of safety, Anderson made the traffic observations that should be expected of him. Looking to his left, he saw that the entire roadway visible to him was free of traffic; he could see neither automobiles nor headlight reflections. Looking to his right, he saw two vehicles moving toward the cross-over through which he intended to proceed. After making these observations, Anderson began to make his turn, assuming that the speed of the oncoming cars from his right would remain constant and that they would pass the cross-over by the time he arrived at its northern edge. He judged that he would be able to negotiate his turn without the necessity of stopping. His judgment was correct for, just as Anderson's tractor reached the edge of the westbound lanes, the two cars he had seen passed him. However, another westbound vehicle immediately came into view. Because it was moving too quickly for Anderson to complete his turn with safety, he was obliged to stop in the cross-over, the rear of his trailer blocking all of the northernmost of the two eastbound lanes.

The balance of Anderson's story can be told in his own words (Tr., at p. 197):

"Immediately, I looked to my left and still there was no reflection of any lights or cars in sight. I figured I would wait for the third car to go by.

"While I was waiting there, I still had to keep looking to my left because I knew part of my trailer was in the highway on the lanes, and when I seen the lights coming to my left, it was coming at a high rate of speed, I immediately looked to my right real fast to see if anything else was coming and there was just this one car in the slow lane.

"I started to ease my tractor out into the fast lane, the other side of the road, as fast as I could get without running into the road, I kept easing on out until I was as far as I could go, and that's when the accident happened, that's when I was hit."

At the moment of impact, Anderson's tractor was completely blocking the southernmost of the two westbound lanes. Thus, making reasonable allowances for "jack-knifing" about six to eight feet of the rear of Anderson's trailer was in the "fast" eastbound lane at the time of the collision.

On the basis of this testimony, the jury could have found that Anderson had stopped in the center strip when Goosman's automobile was more than 950 feet away. Also, with regard to the movement of the Goosman vehicle, the evidence was uncontradicted that he was traveling at the maximum permissible speed, in the left-hand lane, and with no traffic to his right. Although he probably could have seen the tractor-trailer when about 600 feet from the cross-over and although he could have passed to the right of it without leaving the paved portion of the highway, Goosman did not see the tractor-trailer and took no action until it was too late to avoid the accident. At the last moment, he applied his brakes and swerved hard to his right. After impact, Goosman's car came to rest wholly in the southernmost or "slow" traffic lane.

It might be added that, even if Goosman could not have seen Anderson's tractor-trailer any sooner than he did see it, the accident nonetheless might have been avoidable. There can be no doubt that the throttle in his car lengthened the time and space in which Goosman could bring his car to a stop. This device held the automobile at a fixed speed until the brake pedal was touched, thereby eliminating the normal "drag" between the time that the accelerator is released and the brake applied.

DISCUSSION

Should a verdict have been directed in favor of the plaintiffs on the issue of primary negligence?

The bases of the plaintiffs' arguments, both here and in connection with the denial of a directed verdict in their favor on the issue of contributory negligence, are the apposite section of the Motor Vehicle Laws and the cases interpreting Maryland's boulevard rule. The statute involved in this case is section 234 of the Annotated Code of Maryland, Art. 66½ (1957 ed.); it provides as follows:

"The operator of a vehicle entering a paved public highway, which is hereby defined to be a highway having a hard, smooth surface, composed of gravel, shells, crushed stone, paving blocks, asphalt, concrete or other similar substance, from an unpaved public highway, or from a private road or drive, shall come to a full stop upon reaching the intersection, and yield the right of way to all vehicles approaching on such paved public highway."

This section is to be construed and applied in the same manner as the so-called "boulevard sections." Shriner v. Mullhausen, 210 Md. 104, 122 A.2d 570, 821 (1956); see Annotated Code of Maryland, Art. 66½, §§ 233 and 242 (1957 ed.). For the moment, it is unnecessary to elaborately delineate the right of way conferred by Maryland's boulevard rule. Perhaps the rule can be summed up by simply saying that the privilege it confers upon the favored driver is substantial though not absolute. The cases applying the rule are legion. See Dunnill v. Bloomberg, 228 Md. 230, 179 A.2d 371 (1962); Merritt v. Darden, 227 Md. 589, 176 A.2d 205 (1962); Zeamer v. Reeves, 225 Md. 526, 171 A.2d 488 (1961); Green v. Zile, 225 Md. 339 (1961); Harper v. Higgs, 225 Md. 24, 169 A.2d 661 (1961).

Returning to the facts outlined above, no one contends that, merely because Anderson could have taken an alternative route by which the crossing turn could have been avoided, the bare fact of his failing to avoid this turn constituted negligence as a matter of law. Evidence on this point was proffered and admitted, and the question raised was argued to the jury and left to their...