Houlihan v. McCall, 74

• Citation: 197 Md. 130,78 A.2d 661
• Decision Date: 07 February 1951
• Docket Number: No. 74,74
• Parties: HOULIHAN et al. v. McCALL et al.
• Court: Court of Appeals of Maryland

Page 130

197 Md. 130

78 A.2d 661

HOULIHAN et al. v. McCALL et al.

No. 74.

Court of Appeals of Maryland.

Feb. 7, 1951.

Robert D. Bartlett, Baltimore (Ernest N. Cory, Jr., Laurel, on the brief), for appellant.

Edward C. Bell, Jr., Hyattsville (Green, Whalin, Babcock & Bell and Walter L. Green, all of Hyattsville, on the brief), for appellee.

Before MARBURY, Chief Judge, and DELAPLAINE, HENDERSON and MARKELL, JJ.

HENDERSON, Judge.

This appeal is from four judgments in favor of the appellees for damages sustained in a collision on November 24, 1948 between an automobile and a truck at the intersection of Greenbelt Road and Rhode Island Avenue in Prince George's County. Greenbelt Road runs east and west. To the east of the intersection it is 28 feet wide, gradually extending to 64 feet in width west of the intersection. Rhode Island Avenue consists of two separate roads on each side of trolley tracks in the center. The total width of the right of way including the trolley tracks is 125 feet, but the road on the east is only a dirt road serving a few houses. The road with which we are concerned is the one to the west of the trolley tracks which is paved, used by traffic moving in both directions, and 16 feet in width. The width of Greenbelt Road at this point is about 48 feet. Mrs. McCall, driving her husband's car with two small children in the front seat, was proceeding north on the paved portion of Rhode Island Avenue; the truck was proceeding west on Greenbelt Road approaching from her right.

Mrs. McCall testified that she was returning to her home at the time of the accident, about 11:15 A.M. on a clear day. She brought her car to a full stop and looked to her right but saw no vehicles approaching for 'a good safe distance'. Greenbelt Road is perfectly straight for a distance of about 1000 feet to the east, to the crest of a hill. She did not see the truck, but testified it was not within a distance of 'one or two blocks', 300 or 600 feet.

She then started across, watching a bus that had stopped off the travelled portion of Greenbelt Road near the northeast corner. She did not look to her right again or see the truck until the moment of collision, when the front of her car had moved into the sixth or most northerly traffic lane. Her right fender struck the left fender as the truck. She testified that there was a stop sign on the northeast corner of the intersection, against traffic moving south on Rhode Island Avenue, but that there was no stop sign on the southeast corner against traffic moving north. She also testified that there had never been a stop sign there during the two years she had lived in the neighborhood.

Officer Vincent of the county police testified that he came to the scene shortly after the accident and found the truck overturned at the curb near the northwest corner with the McCall car beside it. He observed a solid skid mark for a distance of 96 feet from the wheels of the truck. He ascertained the point of impact from debris and broken glass. The skidmarks began about 20 feet beyond the point of impact. He testified that there was no stop sign on the southeast corner, although he stated that there were stop signs on both sides of Greenbelt Road at all other intersections except the Washington Boulevard a mile or more to the east. He could not say whether there had been a stop sign on the southeast corner prior to the day of the accident. There were no stop signs against vehicles proceeding on Greenbelt Road. The speed limit in that zone was 30 miles per hour.

Houlihan, the driver of the truck, testified when called by the defendants that he was from 125 to 150 feet from the intersection when he saw the McCall car stopped at the southeast corner. He was driving at about 25 miles per hour. He saw the car start slowly across but thought it would stop before crossing the center marked by two white lines. He was then in the third lane from the center. The truck was loaded and weighed between 7 and 8 tons. It had been driven less than 2000 miles and the brakes were in good condition. When he was 40 or 50 feet from the other car he realized it was not going to stop. He applied his brakes but could not avoid the collision. Smith, a witness for the plaintiff who had worked for the appellant corporation until discharged for drinking, testified that the brakes on this truck were 'bad' and he had so advised the manager two days before the accident; that it stood on the floor to be taken to Baltimore for adjustments until the day of the accident.

The plaintiff put in evidence without objection a table showing that an automobile of the usual type, at a speed of 30 miles per hour, can be stopped in a distance of 62 feet after brakes are applied. 'Reaction time' was listed at 21 feet. It was admitted that a loaded truck, not equipped with air brakes, could not be stopped in 62 feet.

The plaintiffs put in evidence over objection a certified copy of Houlihan's driving record obtained from the Commissioner of Motor Vehicles. This showed, among other less serious offenses, two convictions for reckless driving in 1944 and 1946 and a conviction for exceeding 50 miles per hour on November 4, 1948, for which he was fined $10 and costs by a magistrate and subsequently reprimanded by the Commissioner. The court instructed the jury to disregard a conviction for exceeding 30 miles per hour subsequent to the date of the accident.

The appellants contend that the trial court erred in refusing to grant a demurrer prayer based on a lack of evidence of primary negligence on the part of the driver, and in refusing to instruct the jury that Greenbelt Road was a through highway or boulevard within the meaning of the Maryland Statute. The court said: 'You will recall that the evidence in the case indicates that there was no stop sign facing Mrs. McCall as she approached the intersection with Greenbelt Road although there was one on the other side of the same intersection, and that there was no stop sign facing the driver of the truck, Mr. Houlihan, as he approached the same intersection from Mrs. McCall's right. Under those circumstances, neither of the roads can be defined, as a matter of law, as a favored or through highway.' It charged the jury, in effect, that since Mrs. McCall was the first to reach the intersection and saw no vehicles within a safe distance, she had the right of way.

Section 2(59), Article 66 1/2 of the Code, 1947 Suppl. defines 'Through Highway' as 'Every highway or portion thereof at the entrances to which vehicular traffic from intersecting highways is required to stop and yield right-of-way before entering or crossing the same and when stop signs are erected as provided in this Article.' Section 178 provides: '(a) The driver of a vehicle shall come to a full stop as required by this Article at the entrance to a through highway and shall yield the right of way to other vehicles approaching on said through highway.

'(b) The driver of a vehicle shall likewise come to a full stop in obedience to a stop sign and yield the right of way to a vehicle approaching on the intersecting highway as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway'. Section 138 provides that 'The State Roads Commission shall place and maintain, upon all highways under its jurisdiction, such traffic-control devices, conforming to its manual and specifications, as it shall deem necessary * * *'.

Section 187(a) provides: 'The State Roads Commission with reference to State and county highways * * * may designate through highways and erect stop signs at specified entrances thereto or may designate any intersection as a stop intersection and erect like signs at one or more entrances to such intersection.'

We think it is clear that the erection of signs by the proper authorities is a necessary prerequisite to the creation of a through highway or stop intersection. While it is difficult to understand just why this particular corner should have been omitted when stop signs were erected at all other intersections in the vicinity and on the northwest corner of the intersection in question, it is undisputed that there was no stop sign at the southeast corner against Mrs. McCall. In the absence of evidence that a stop sign had ever been erected there, we think the court correctly ruled that the boulevard stop law did not apply.

The appellants contend that it appears from one of the photographs taken a few days after the accident that there is a leaning post near the southeast corner of a type ordinarily used to support a stop sign. They suggest that the sign may have been removed by unauthorized persons or...