Harper v. Higgs

• Decision Date: 05 April 1961
• Docket Number: No. 191,191
• Parties: Gladys Fisher HARPER v. Eva Mabel HIGGS et vir and Mary M. Hurry.
• Court: Maryland Court of Appeals

Page 24

225 Md. 24

169 A.2d 661

Gladys Fisher HARPER v. Eva Mabel HIGGS et vir and Mary M. Hurry.

No. 191.

Court of Appeals of Maryland.

April 5, 1961.

John W. T. Webb and K. King Burnett, Salisbury (Webb & Travers, Salisbury, on the brief), for appellant.

James F. FitzGerald, Silver Spring (FitzGerald & FitzGerald, Silver Spring, and Walter D. Webster, Salisbury, on the brief), for Eva Mabel Higgs and husband, part of appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

If Conan Doyle had written this chapter of the Maryland Reports, he might have called it 'The Case of the Completely Inattentive Women Drivers.' The principal legal question presented is whether the jury should have been allowed to find out for themselves (as they were) a real culprit in the automobile accident, case, or whether the judge should have peeked and told them how the story ended, as a matter of law.

The plaintiffs below were a husband and wife. The wife, Mrs. Higgs, a passenger in a car which entered from a side road and came into crushing contact with a car on the main road, sued the favored driver, Mrs. Harper, who impleaded the driver of the unfavored car, Mrs. Hurry. The case was submitted on issues as to: (1) the primary negligence of Harper; (2) the primary negligence of Hurry; and (3) damages. The court refused to direct a verdict for Harper but instructed the jury to find Hurry negligent. The jury found that Harper also had been negligent and assessed damages at $25,000, which the court reduced to $12,500 because Mr. and Mrs. Higgs had released Hurry in conformity with the Contribution Among Joint Tortfeasors Act, Code 1957, art. 50, § 16 et seq. Harper's motion for judgment n. o. v. was denied and she appealed from the final judgment, claiming that a verdict should have been directed in her favor, there was error in the charge to the jury and prejudice in the court's refusal to allow expert testimony as to which car struck the other, and the so-called per diem or mathematical formula argument as to how damages for pain and suffering may be computed which was made to the jury was improper.

Mrs. Hurry was driving Mrs. Higgs, her sister-in-law, and a Mr. Brooks in her 1947 Chevrolet from St. Mary's County to Ocean City. They got lost and found themselves in Wicomico County driving north on the Willard-Powellville Road, Route 354, which crosses Route 50, a boulevard, at Willards. Meanwhile, Mrs. Harper, then a hostess in an Ocean City hotel dining room, was coming west on Route 50, driving her daughter and three waitresses to Salisbury to shop, in her 1951 DeSoto.

A blinker light, suspended directly over the center of the intersection of Routes 50 and 354, flashed yellow for boulevard traffic and red for traffic on Route 354. There were stop signs for Route 354 traffic at the southeast and northwest corners.

Mrs. Hurry's testimony was that as she approached the intersection 'There was a red blinker on me. I stopped. And as I started to pull away I got in about the middle of the highway and my car cut off, and I was trying to start the car. And that is all I remember.' She did not see the Harper car 'Because I was trying to start my car.' She did not know what happened there 'other than I stopped and started again.'

Mr. Brooks, who was seated next to Mrs. Hurry on the front seat, said from the stand: 'There was a stop sign there. Mrs. Hurry stopped her car. And she proceeded to go across the road, and practically got under the blinker light and her motor went dead. And in trying to start this motor, I suppose it was just a few seconds, that on my right this automobile * * * was right on top of us.' He thought they were stalled under the traffic light for five seconds or a little longer and that 'while she was trying to start this car it eased ahead a little bit.' As Mrs. Hurry started across Route 50, after having stopped, Mr. Brooks, beside her on the front seat, looked both ways and 'There was nothing coming either way at that time * * * I noticed both ways that there was nothing coming at that particular time that we stopped there at that stop-sign.'

One of the passengers in Mrs. Harper's car, who was sitting in the back, testified that Mrs. Harper drove at a constant speed of thirty-five or forty miles an hour and the car's speed did not decrease as they approached the intersection. Before they got there she saw the Hurry car approaching 'and it was going at a speed that I didn't think it was going to slow down for the intersection; so, I leaned forward on the seat to warn Mrs. Harper and everyone was talking, and I was waiting to get a sound in * * * when I looked again the car was coming right at us. * * * It hit on our left-hand side between the front and back door.' The girls in the car were talking about a beauty parlor a little bit to the east of the intersection because the mother of one of the waitresses they worked with owned it. When the witness leaned forward to warn of the other car, Mrs. Harper was talking to someone. She 'waited a second' to get her warning 'in.' She did not 'really' look to see whether the person Mrs. Harper was talking to was going to answer because 'I was looking to see where the car was at. Because it was worrying me. I hollered the car is not going to stop; it's going to hit us. And Mrs. Harper hollered 'Where?' and we hit.'

Mrs. Harper said she was driving under fifty miles an hour and as she approached the blinker light she slowed down--how much she did not know. She saw the Hurry car 'coming through the intersection' and 'thought it would stop.' She reiterated several times that when she first saw the other car 'it was moving through,' that it was 'almost through the intersection' and that when she first saw it it was in the intersection but 'not right in the middle.' She thought 'the other car struck my car in front.' She applied her brakes and did 'pull slightly to my right hand.'

A State policeman found the point of impact to have been seven feet north of the center line of Route 50 in the westbound lane. The Hurry car travelled 24 feet and the Harper car 20 feet after the impact. There were no skid marks.

Mrs. Harper's motion for a directed verdict was on the theory that neither by act nor omission did she violate any obligation or duty the law imposes on a driver on a boulevard. The applicable law and its underlying theory have been stated and restated many times since Greenfeld v. Hook, 177 Md. 116, 125, 130, 8 A.2d 888, 136 A.L.R. 1485, articulated them elaborately in 1939. A motorist must stop before he drives onto a boulevard and yield the right of way to vehicles thereon during their passage past the intersection. The relative rights of travellers on the two intersecting roads are not to be held to depend on nice calculations of speed, time and distance lest the obvious and essential purposes of the boulevard rule to accelerate the flow of traffic over the through highway at the permitted speed, without interruption, be frustrated. The favored drive has a right to assume the unfavored driver will stop and yield the right of passage and therefore, in most instances, even though the favored driver does not see the unfavored car he will not be guilty of negligence proximately causing the accident for, if he had seen it he could, unless put on notice to the contrary, have assumed it would stop.

As Judge Henderson for the Court put it in Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 180, 49 A.2d 537, 539, the favored driver is not relieved of the obligation to use due care under the circumstances 'But in determining due care, the as assumption that the unfavored driver will stop and yield the right of way is an important factor.'

This obligation of the favored driver to use due care under the circumstances also has been stated and restated. In the Greenfeld case (in which the doctrine of last clear chance was held applicable in a stop street collision), Judge Offutt, speaking for the Court, said the boulevard law 'does not mean that the traveller on the favored highway has an absolute, unqualified and complete right of way at all times and under all circumstances over persons who have lawfully entered the street, nor that he can proceed thereon in blind indifference to the danger to which his progress may expose others. There are many situations in which the driver of an automobile entering a favored from an unfavored highway may without negligence be endangered by traffic over and along the same; * * * a child unexpectedly coming into the highway may cause him to stop or to go on, or some defect in the motor, the brakes, or the steering gear of his automobile may prevent his controlling it * * *. So where a traveller on a favored highway knows or should know that his progress will endanger a traveller entering the same from a restricted highway, he must exercise reasonable care to avoid injuring him.' [117 Md. 116, 8 A.2d 895]

In Shedlock v. Marshall, 186 Md. 218, 235, 46 A.2d 349, 357, the earlier cases were reviewed and the Court said that the driver who enters the boulevard from an unfavored highway must yield the right of way to all the traffic he finds there during the entire time he is there. 'If he does not, and a collision results, he is at fault and cannot recover against the other driver unless the doctrine of last clear chance enters the case. * * * He is negligent because he has not yielded the road. Being negligent himself, his action is barred. But when he is made a defendant in an action for damages resulting from the collision, he can always show that the other party was also guilty of negligence contributing to the accident, and if he succeeds in this, no verdict can be obtained against him. Then both parties are negligent.'

Judge Henderson in the Belle Isle case, supra, at page 179 of 187 Md., at page 539 of 49 A.2d, made this observation of the Greenfeld case: 'And in other passages in...