Maxworthy v. Horn Electric Service, Inc.

• Decision Date: 25 June 1970
• Docket Number: Civ. No. 19656.
• Citation: 314 F. Supp. 899
• Parties: Kirsten MAXWORTHY, Infant, by her parent and next friend, Dr. Tony Maxworthy, Emily Jean Maxworthy, Emily Jean Maxworthy and Dr. Tony Maxworthy, jointly, Dr. Tony Maxworthy v. HORN ELECTRIC SERVICE, INC., a body corporate and Charles David Horn.
• Court: U.S. District Court — District of Maryland

314 F. Supp. 899

Kirsten MAXWORTHY, Infant, by her parent and next friend, Dr. Tony Maxworthy, Emily Jean Maxworthy, Emily Jean Maxworthy and Dr. Tony Maxworthy, jointly, Dr. Tony Maxworthy v. HORN ELECTRIC SERVICE, INC., a body corporate and Charles David Horn.

Civ. No. 19656.

United States District Court, D. Maryland.

June 25, 1970.

Max R. Israelson, and Israelson, Pines & Jackson, Baltimore, Md., for plaintiffs.

Herbert F. Murray, Baltimore, Md., for defendants.

FRANK A. KAUFMAN, District Judge.

Plaintiffs herein, residents of California, are an infant, the infant's mother, and his father. The infant and his mother each seek compensation for injuries suffered in an automobile collision on a Maryland two-lane highway involving the automobile in which they were passengers, driven by a person not a party to this case, and a second automobile owned by defendant Horn Electric Service, Inc., a Maryland corporation with its principal place of business in Maryland, and operated by defendant Charles D. Horn (Horn), a citizen of Maryland, as an agent of Horn Electric Service. The mother and father sue for damages for loss of, interference with, and injury to their marital relationship, and the father also asks compensation for loss of services of the infant. Plaintiffs each base their claims upon allegations of negligence by defendants. The damages alleged to be suffered by the mother and the father as plaintiffs and also by the infant plaintiff are stated to exceed $10,000. Diversity jurisdiction exists.

Plaintiffs, on the basis of the pleadings, motions, affidavits and discovery, seek summary judgment with regard to liability (as opposed to damages) under Rule 56 of the Federal Rules of Civil Procedure.

There are no disputed facts in this case. It is admitted by defendants that the individual defendant was operating the corporate defendant's vehicle in the course of the latter's business. While defendants in their answer have denied negligence and liability, Horn, nevertheless, in answer to the following interrogatory by plaintiffs:

11. Give a concise statement of the facts as to how you contend that the occurrence took place.

has answered:

11. As I came over a knoll in the road, there was a truck in front of me going at a slow rate of speed. I pulled out to pass this vehicle. As I was in the process of passing, I saw a vehicle coming off a knoll headed towards me from the opposite direction. I applied my brakes but the left front of my car collided with the left front of the other car.

Also, in connection with defendants' opposition to plaintiffs' motion for summary judgment, the individual defendant has affied:

That on the day of the accident in controversy he was proceeding on U.S. Route #15 * * *; that he had come out of a 30-mile zone and approached a tractor-trailer which was traveling in the same direction at a slow speed; that he looked and saw the opposite lane was clear of traffic; that he proceeded to pass the tractor-trailer at a time when there was no oncoming vehicles; that while he was in the act of passing a vehicle came over the hill toward him; that there was not sufficient time to avoid the resulting collision.

Plaintiffs' version of the collision is the same as that described in defendant's affidavit, supra. Further, in answers to interrogatories posed by plaintiffs, defendants have informed this Court that they do not allege contributory negligence by plaintiffs or contend that the accident was caused by the acts or lack of action of any third person or persons, including the driver of the automobile in which plaintiffs were passengers at the time the accident took place. In addition, counsel for defendants has agreed that, for the purposes of the motion for partial summary judgment, this Court may assume that the collision was the proximate cause of some of the injuries suffered by the plaintiffs and each of them.

Under Maryland law, "it is well established that a driver who fails to comply with the statute Md.Ann.Code art 66½, § 217 (1967 Repl. Vol.) `which generally requires drivers of motor vehicles to keep to the right of the center of the roadway, is prima facie guilty of negligence where the violation directly and proximately causes a collision resulting in injury, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that he was justified in driving in the center or upon the left half of the road.' Sun Cab Co., Inc. v. Cusick, 209 Md. 354, 360-361, 121 A.2d 188 (1956)." Miller v. Mullenix, 227 Md. 229, 233, 176 A.2d 203, 204 (1961). See Cocco v. Lissau, 202 Md. 196, 199, 95 A.2d 857 (1952).

Federal, not state, standards determine the sufficiency of the evidence to go to the jury in this case. Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4th Cir. 1969). This would seem equally clear whether the question arises, as in Wratchford, in the context of taking a case away from the jury, or in the context of a motion for summary judgment.¹ Marsden v. Patane, 380 F.2d 489, 493-494 (5th Cir. 1967) (dissenting opinion by Judge Rives). In Marsden, the trial court granted a summary judgment motion which was affirmed by the Fifth Circuit as to liability, Judge Rives dissenting.

A plaintiff's burden in seeking summary judgment in a tort action, such as the within automobile accident case, is heavy. However, "it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture." Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 229 (1958).

In Marsden v. Patane, supra, in which plaintiffs claimed damages for injuries in an automobile accident, the defendant admitted that she drove through a stop sign. No claim of contributory negligence or third party negligence was advanced. While failure to halt at the stop sign was a violation of the State's traffic laws, Judge Thornberry, writing for the majority, noted (380 F.2d at 492) that "proof of a traffic law violation is not conclusive of the issue of negligence but may be rebutted by evidence of surrounding circumstances tending to eliminate the character of negligence from the act." However, Judge Thornberry also observed that no evidence had been offered to rebut that presumption of negligence and that the only defenses offered by defendant were: "(1) that she was unfamiliar with the surroundings; (2) that her attention was distracted by the vehicle approaching from her left (with which she ultimately collided); and (3...