Great Coastal Exp., Inc. v. Schruefer

• Decision Date: 07 February 1977
• Docket Number: No. 536,536
• Citation: 34 Md.App. 706,369 A.2d 118
• Parties: GREAT COASTAL EXPRESS, INCORPORATED, et al. v. Darlin Sue SCHRUEFER et al.
• Court: Court of Special Appeals of Maryland

Page 706

34 Md.App. 706

369 A.2d 118

GREAT COASTAL EXPRESS, INCORPORATED, et al. v. Darlin Sue SCHRUEFER et al.

No. 536.

Court of Special Appeals of Maryland.

Feb. 7, 1977.

Certiorari Denied April 22, 1977.

Samuel S. Smalkin, Baltimore, with whom was William H. Clarke, Washington, D. C., on the brief, for appellants

M. Michael Cramer, with whom were Levitan, Ezrin, Cramer, West and Weinstein, Chartered, Chevy Chase, on the brief for appellees Shasta Beverages, Inc. and Darlin Sue Schruefer, Administratrix of the Estate of George P. Schruefer, Jr.

John F. Wiley, Baltimore, for other appellees.

Argued before LOWE, MELVIN and LISS, JJ.

LOWE, Judge.

The widow, children and employer of the driver of a delivery truck which rear-ended a tractor-trailer that had Appellants, who owned and operated the tractor-trailer, assign 9 errors on appeal. The first 2 appear to be little more than questions of the sufficiency of the evidence:

pulled onto the highway from the driveway of a truck stop moments before the collision, brought suit against the driver of the tractor-trailer and his employer. This is an appeal from the judgment of Judge John J. Mitchell, presiding without a jury in the Circuit Court for Montgomery County, in favor of the plaintiffs. The issue below turned on whether the tractor-trailer had entered the flow of traffic so as to excuse its driver from the rigid responsibility imposed by the 'Boulevard Rule'. Judge Mitchell decided that it had not.

'I. The lower Court erred in holding that Appellees were entitled to recover in this case which involved a rear end collision and a violation by the decedent, George O. Schruefer, Jr., of the duty of proper control of his truck.

II. The lower Court erred in entering judgment in favor of the Appellees against Gerald Wayne Smith on his counterclaim against Appellees'. ¹

In reviewing such questions, where a court sits without a jury, we are bound by Md. Rule 1086:

'When an actions has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.'

We have reviewed the evidence submitted by record extract and the comprehensive opinion of the trial judge. We do not Because appellants raised the issue of contributory negligence in their reply brief, we will interject here that our review of the evidence does not disclose evidence of contributory negligence so conclusive that the court should-or could-have found it as a matter of law. It therefore follows that we do not view the factfinder's disbelief of such evidence as was presented, from which an inference of contributory negligence might have been drawn, as clearly erroneous.

find him to have been clearly erroneous in his findings of fact and conclusions therefrom; to the contrary, we find his explanation so thorough and so convincing that we adopt that opinion as our own.

We cannot improve upon Judge Mitchell's factual articulation, and therefore we shall set it forth in full before responding to the remaining issues:

'MEMORANDUM OPINION AND ORDER

STATEMENT OF THE CASE

This case arises out of a motor vehicle collision that occurred on June 13, 1974. The location of the fatal accident was on Maryland State Route 3 in Anne Arundel County near Millersville, Maryland. George Schruefer was operating a truck which collided with the rear end of a tractor-trailer unit owned by the defendant, Great Coastal Express, Inc. and being operated by its employee, Gerald Wayne Smith. Schruefer was killed instantly as a result of the collision. His widow, Darlin Sue Schruefer, and two surviving infant children have brought this action seeking damages. They are joined by Travelers Insurance Company which seeks to recover certain Workmen's Compensation benefits paid to the surviving widow, and Shasta Beverages, owner of the truck operated by the decedent, which looks to the defendant for the property damage and loss occasioned by the collision.

Gerald Wayne Smith has filed a counter-claim seeking to recoup damages for the personal injuries he sustained, the resulting medical expenses, loss of wages, and pain and suffering.

When this case came on for trial, all parties agreed to waive their prayers for a jury trial and a bench trial was conducted.

QUESTION PRESENTED

The question presents a very narrow issue. The Court must determine whether the plaintiffs are entitled to the protection of the 'Boulevard Rule' or whether the defendant and counterclaimant had left the confines of the 'Boulevard Rule' and had joined the 'free flow of traffic.'

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court had the benefit of evidence presented through seventeen (17) witnesses; forty-five (45) exhibits; and two scholarly briefs of the law involved. From all of this, the following facts are found.

George Schruefer and his widow, Darlin Sue Schruefer, were married unto each other in Baltimore, Maryland on February 14, 1968. Two children were born of this union, namely: Barbara Ann, presently six years of age, and Richard Lynn, presently eight years of age. Barbara is a normal, pleasant, little girl. Richard is legally blind and is afflicted with spastic cerebral palsy and suffers a partial paralysis of the lower limbs (See Plaintiff's Exhibit No. 12). The decedent, George Schruefer, entered the employ of Shasta Beverages on April 3, 1973. After one month he became a driver-salesman and at the time of the fateful accident, he was in the course of his employment. On June 13, 1974, at approximately three o'clock in the morning, George Schruefer arose and left his home in Bel Air Maryland. He drove to the Shasta plant in Baltimore, Maryland. He then boarded his Shasta truck to make a delivery of soft drinks to Andrews Air Force Base in southern Prince George's County. His two-axle, 1973 Ford truck, unloaded, had a gross weight of fifteen thousand (15,000) pounds. The truck's carrying capacity is seven hundred seventy-one (771) cases and each case weighed twenty-three (23) pounds. The total gross weight of vehicle and load on the morning of the accident was thirty-two thousand seven hundred thirty-three (32,733) pounds. Schruefer had elected to drive in a southerly direction on Maryland State Route 3.

Gerald Wayne Smith was an employee of Great Coastal Express, Inc. On June 12, 1974, he had driven a tractor-trailer unit from Richmond, Virginia to the metropolitan New York City-New York area and made certain deliveries. He took on other materials to be delivered in Richmond, Virginia and after an appropriate rest resumed his journey eventually entering Maryland State Route 3. At or near Millersville, Anne Arundel County, Maryland, there is situated, on the west (sic) side of southbound Route 3, a transit truck stop. Mr. Smith stopped at this location some time about four o'clock in the morning and had some coffee. He then checked his tractor and trailer and was satisfied that all running lights were in operation. He was operating a 1972 White Freight Line. The total overall length of his tractor and trailer was fifty-five (55) feet. The gross weight of the tractor, the trailer, and the cargo was sixty-four thousand eight hundred (64,800) pounds. The tractor had ten (10) forward speeds. Mr. Smith chose to return to the southbound lanes of Route 3 by using the southern most exist from the truck stop. At this point Route 3 is a double laned, paved highway. The posted speed limit was fifty-five (55) miles per hour. To enter this boulevard from the truck stop, a vehicle must cross a fourteen (14) foot shoulder to reach the paved road and then must turn left to enter the flow of traffic. There are no overheard lights on the roadway at this point. On June 13, 1974, the air was clear and relatively balmy and the roads were dry. Prior to entering this boulevard, a driver, looking to his right from the point entered by Smith, can see to a crest of a hill. According to the investigating police officer, that crest is 'four to five tenths of a mile.' A southbound vehicle approaching that crest finds that the roadway curves to the right. Smith entered the roadway and told the police that he had gone one-half (1/2) of a mile when two tractor-trailer units passed him on his left and he was then struck in the rear end by the Shasta truck.

Police Officer Robert Short of the Anne Arundel County Police Department arrived on the scene and conducted an investigation. He concluded from the location of the vehicles involved in the accident that the point of impact was two hundred fifty-two (252) feet from the southernmost point of the driveway used by Smith. The Court finds this to be conclusive. Substantial damage was suffered by each vehicle and Schruefer was killed instantly. There were no skid marks on the road that would reflect that the brakes on the Schruefer vehicle had ever locked prior to impact. Smith said that from his vantage point in the driveway, that he could see a distance of one and one-half (1 1/2) miles. The Court finds that Smith could not observe this distance because of the terrain and the curve in the road. Smith also testified that he was shifting into sixth gear and had attained a speed of approximately thirty-five to forty (35-40) miles per hour. There was further received a tape from a tachometer. The tape would seemingly reflect that Smith's vehicle had attained this speed at the time of impact.

The Court had the benefit of one Roy Smith who is a trucker and repairman of tractors and rigs. He had conducted a series of tests with a tractor and loaded rig comparable in horsepower, size, and weight to that of the Great Coastal Express vehicle being operated on the morning of the accident. He testified that the maximum speed that could be attained was fifteen (15) miles per...