Kemp v. Armstrong

• Decision Date: 03 November 1978
• Docket Number: No. 80,80
• Citation: 40 Md.App. 542,392 A.2d 1161
• Parties: George Charles KEMP et al. v. Roger William ARMSTRONG et al.
• Court: Court of Special Appeals of Maryland

Page 542

40 Md.App. 542

392 A.2d 1161

George Charles KEMP et al. v. Roger William ARMSTRONG et al.

No. 80.

Court of Special Appeals of Maryland.

Nov. 3, 1978.

I. Marshall Seidler and Alvin I. Frederick, Baltimore, with whom were Archibald Eccleston, III and Eccleston, Seidler & Miller, Baltimore, on the brief, for appellants.

Henry E. Dugan, Jr., Baltimore, with whom was Jerome J. Seidenman, Baltimore, on the brief, for appellee Armstrong.

Bernard M. Goldstein and William D. Kurtz, Baltimore, for other appellee.

Argued before MOORE, MELVIN and MacDANIEL, JJ.

MELVIN, Judge.

The actors in this negligence litigation are two garbage truck operators (Spindler and Kemp), a motorcycle operator (Armstrong) and a motor vehicle operator (Wardlaw). The plaintiffs below were Armstrong and Wardlaw. After a jury trial in the Superior Court of Baltimore City they obtained judgments against Spindler and Kemp and their respective employers. Kemp and his employer's motion for judgment n. o. v. was denied by the trial judge and they have appealed that ruling. Spindler and his employer have not appealed. ¹ We now reverse the judgment against Kemp and his employer, Robb Tyler, Inc.

I

The motor vehicle accident giving rise to the litigation occurred on July 22, 1975, in the Brooklyn section of Baltimore City, on West Patapsco Avenue, a six-lane road divided by a concrete median strip. Both Kemp and Spindler, the garbage truck drivers, had finished dumping their loads in a landfill located on the south side of West Patapsco Avenue. The Spindler truck exited the landfill, made a right turn and proceeded in the right eastbound lane of West Patapsco Avenue. Shortly thereafter, the Kemp truck exited the landfill, made a right turn and proceeded in the center eastbound lane of West Patapsco Avenue. As both drivers proceeded eastbound, Spindler turned on his left directional signal. Kemp then glanced into his left rearview mirror and flashed his headlights twice. Spindler then moved over into the center eastbound lane in front of the Kemp truck and then into the left eastbound lane in an attempt to make a U-turn at an opening in the median with the ultimate purpose of proceeding westbound on West Patapsco Avenue. Before he could complete the U-turn Spindler's truck was struck in the left rear in the left eastbound lane by the appellee Wardlaw who had been proceeding easterly in that lane. Appellee Armstrong, following closely behind Wardlaw on his motorcycle, struck the rear of the Wardlaw vehicle. There was no contract between the Kemp truck and any other vehicle.

II

The appellees (plaintiffs below) alleged that Kemp was negligent:

". . . in that he did negligently and improperly, and from a point to the rear of the Spindler vehicle, signal to the Defendant, Stephen Joseph Spindler, that the way was clear for the said Stephen Joseph Spindler to operate his truck from the right-hand lane of eastbound West Patapsco Avenue traffic across the remaining lanes of traffic thereon, that he failed to keep a proper lookout, that he failed to observe the presence and proximity of approaching motor vehicular traffic from his rear and in particular, the approach of the Wardlaw automobile and the (Armstrong motorcycle), that he did give an erroneous signal to the Defendant, Stephen Joseph Spindler, to proceed across the center and left eastbound lanes of West Patapsco Avenue and was in other respects negligent;"

On appeal Kemp contends, as he did below, that his signal to Spindler was an act of courtesy indicating only that as far as Kemp was concerned he (Kemp) would not interfere with Spindler's action in pulling into the lane in front of him in the process of his entrance into the median. The appellees on the other hand contend, as they did below, that there was evidence that the signal meant that the road was clear for a U-turn and that Kemp, having voluntarily undertaken to check the road for traffic in the left eastbound lane, owed a duty to the appellees and that his negligent failure to discharge that duty was a proximate cause of their injuries.

Where the trial court has denied a motion for a directed verdict or a motion for a judgment N. o. v. made by a defendant, we must in determining the propriety of the ruling, resolve all conflicts in favor of the plaintiffs and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs' right to recover. "Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff(s)". Campbell v. Jenifer, 222 Md. 106, 110, 159 A.2d 353, 355. Viewing the evidence in this manner, we think it would support the following factual findings by the jury:

1. Kemp knew that when Spindler turned on his left turn signal that Spindler intended to cross the eastbound center lane and the eastbound left lane to enter the median preparatory to making a U-turn into the westbound lanes of West Patapsco Avenue.

2. Spindler could not see the traffic in the eastbound left lane while he was still in the right eastbound lane of West Patapsco Avenue at the time he turned on his left turn signal.

3. When Kemp saw Spindler's left turn signal, he looked in his rear view mirror to ascertain whether there was traffic in the left lane; seeing none, he flashed his lights to indicate to Spindler that he could safely make the U-turn he knew he intended to make.

4. When Spindler crossed into the center lane ahead of Kemp within a short distance of reaching the median, He looked for himself before crossing the left eastbound lane into the median. Having determined for himself that the way was clear he proceeded across the left eastbound lane into the median and either stopped or nearly stopped while waiting for westbound traffic on West Patapsco Avenue to clear. At the time he was struck by the Wardlaw vehicle, the rear of his truck was still protruding a few feet into the left eastbound lane of West Patapsco Avenue. The Wardlaw vehicle struck the left rear corner of his truck.

At the time of the accident, Md.Code, (1957) Art. 661/2, § 11-309(1) (now codified as § 21-309(b) of the Transportation Article of the Md.Code (1977)), provided:

"A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until The driver has first ascertained that the movement can be made with safety." (Emphasis added).

This statutory duty with respect to changing lanes can not be delegated to other drivers on the highway. Spindler's duty with respect to changing lanes, therefore, could not have been delegated to Kemp. The appellees do not seem to dispute this proposition. Instead, they seek to invoke against Kemp the principle of liability for the negligent performance of a voluntarily assumed duty. Under the particular circumstances of this case, we think the jury could reasonably have found that Kemp did in fact assume the voluntary duty of checking the traffic conditions in the left lane for the purpose of determining whether Spindler could safely come across his path into the left lane in the process of making his U-turn at the median. Having assumed that duty, even though...