Miller v. Michalek, 616

• Decision Date: 30 August 1971
• Docket Number: No. 616,616
• Citation: 281 A.2d 117,13 Md.App. 16
• Parties: Harry H. MILLER v. Laura M. MICHALEK and Frank C. Michalek.
• Court: Court of Special Appeals of Maryland

Page 16

13 Md.App. 16

281 A.2d 117

Harry H. MILLER v. Laura M. MICHALEK and Frank C. Michalek.

No. 616.

Court of Special Appeals of Maryland.

Aug. 30, 1971.

John A. Buchanan and Charles E. Channing, Jr., Upper Marlboro, for appellant.

Richard J. Clark, and Edward S. Digges, LaPlata, for appellees.

Argued before MURPHY, C. J., and MORTON, ORTH, THOMPSON, MOYLAN, CARTER and GILBERT, JJ.

ORTH, Judge.

Harry H. Miller seeks to have us set aside two judgments entered against him upon verdicts of a jury in the Circuit Court for Calvert County, ¹ one in favor of Laura M. Michalek in the amount of $30,000 and the other in favor of Frank C. Michalek, her husband, in the amount of $10,000. Miller does not contest that his negligence was the primary cause of the injury to Mrs. Michalek but he urges that the evidence showed as a matter of law that she assumed the risk of her injury or was herself guilty of negligence contributing to the cause of it. Therefore, he claims, the lower court committed prejudicial error in the denial of his motion for a directed verdict, Maryland Rule 552, or his motion for judgment n. o. v., Rule 563. The trial court is governed by the same considerations in determining a motion for a directed verdict as it is in determining a motion for judgment n. o. v. Wheeler Transp. Co. v. Katzoff, 242 Md. 431, 435, 219 A.2d 250. ² It 'must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made * * *.' Buchanan v. Galliher and Harless, 11 Md.App. 83, 87-88, 272 A.2d 814, 817. 'If there is any competent evidence, however slight, leading to support the plaintiff's right to recover, the case should be submitted to the jury,' and a motion for judgment n. o. v. denied. Belleson v. Klohr, 257 Md. 642, 646, 264 A.2d 274, 276.

The Facts

The pertinent evidence was substantially uncontradicted and uncontroverted. While Laura M. Michalek was driving on the Washington Beltway her car stopped due to mechanical failure. It came to rest in the left or 'fast' lane next to the median strip. The left lane at that point was the equivalent of two lanes in width so that the Beltway on that side consisted of a right lane, a middle lane and a left lane wide enough to accommodate two cars. It was raining hard, 'a torrent', and traffic was very heavy. When her car stopped the parking lights were on. Leaving them on she activated the left turn indicator signal. She got out of the car and went to the median strip, a place of relative safety. Two cars approaching in the left lane passed her car in that widened lane despite the traffic in the other two lanes on the right. She stood in the median strip for a while. She had read an article counselling that 'if you break down on the highway to make sure your lights are on, your blinker going and if possible to raise your hood, that makes the car more readily seen.' The first two had been accomplished so she decided to take steps to raise the hood. To do so she had to leave the median strip and proceed into the left lane to the front of her car. She was concerned about cars coming up and hitting her car-'I was-you know, I was leary about it.' While attempting to raise the hood of her car she saw the lights of an approaching car. She could not make up her mind at first whether to stay where she was or go back on the median strip. Feeling that the driver of the approaching car would see her car and stop or pass by as had the other two cars, she started to back away from the front of her car. The approaching car struck her car and drove it into her causing her to be injured.

Contributory Negligence

' Contributory negligence is the doing of, or omitting to do, some act or thing which a reasonably careful and prudent person would not have done or omitted to do under the circumstances, and which, concurring and co-operating with the negligent act of defendant, thereby becomes the real, efficient and proximate cause of the injury.' 2 Blashfield, Automobile Law and Practice, 3rd Ed., § 101.6, p. 20. ³ Like primary negligence, contributory negligence is relative and not absolute, and being relative, necessarily depends on the particular circumstances of each case. Yockel v. Gerstadt, 154 Md. 188, 189, 140 A. 40. However, it has been repeatedly and uniformly held that to constitute contributory negligence as a matter of law 'the negligent act of the plaintiff relied on must be prominent, decisive, and one about which ordinary minds would not differ in declaring it to be negligence. The act must present such features of negligence as to leave no opportunity for difference of opinion in the minds of ordinarily prudent men as to its imprudence.' Id. at 189, 140 A. at 40. Comparable language was used in Miller v. Mullenix, 227 Md. 229, 232, 176 A.2d 203 without citation of authority, and in Vokroy, Adm. v. Johnson, 233 Md. 269, 273, 196 A.2d 451, citing Miller. 'The standard of care to be used in measuring contributory negligence is the conduct of an ordinarily prudent person under the same or similar circumstances, and not that of a very cautious person, and even if the doing of what was done turns out to have been an error of judgment, this of itself does not make the act negligent if an ordinarily prudent person would have made what proves to have been the same error.' Sanders v. Williams, 209 Md. 149, 153, 120 A.2d 397, 398.

Miller does not appear to attribute negligence to Mrs. Michalek because of the position of her car on the highway. On the evidence it stopped when and where it did through no fault of her. We think it was a disabled vehicle within the contemplation of Code, Art. 66 1/2, § 244(b) and thus not under the proscriptions of § 244(a). See Williamson Truck Lines v. Benjamin, 244 Md. 1, 9-10, 222 A.2d 375. The question is whether she was negligent in leaving the median strip and proceeding to the front of her car to raise the hood or in remaining there instead of returning to the median strip when she saw the lights of Miller's approaching car. Ordinarily the law places upon one the duty of exercising reasonable care for his own protection. 'This principle has been applied where one leaves a place of safety to venture into a place or posture of danger, and is harmed; in such cases, the venturesome one often has been held to be guilty of contributory negligence as a matter of law. * * * Conversely, where one who remains in a place of danger with time and the physical ability to leave, and is harmed, the courts have often held such failure to act to be contributory negligence as a matter of law.' Martin v. Sweeney, 207 Md. 543, 548, 114 A.2d 825, 827, citations omitted. See 2 Blashfield, Automobile Law and Practice, 3rd Ed., § 101.9, p. 27. But there may be circumstances out of the ordinary.

'Under what is commonly referred to as the 'rescue doctrine', conduct which is so dangerous that it would ordinarily preclude recovery on the ground of contributory negligence or assumption of risk is regarded as justified and as not barring recovery where the dangerous conduct is undertaken in an attempt to save others from imminent danger of personal injury or death. The law is indulgent to the rescur if, in the emergency, he fails to use the same judgment and adopt the same measures for his protection which he might have if the opportunity were given him for calm deliberation; but it has been held that a rescuer is to be held to the standard of reasonable care under the circumstances. In order to invoke the rescue doctrine it is not essential that the effort should be to save the life of some particular and definite person.' Id., § 102.36, pp. 223-224.

We cannot say that the conduct of Mrs. Michalek presented such features of negligence as to leave no opportunity of difference of opinion in the minds of ordinarily prudent men as to its imprudence. It may be that she erred in her judgment but we think it was for the jury to determine that an ordinarily prudent person would not have made the same error so as to make her act negligent. We feel it was for the jury to consider, whether the median strip was a place of safety and whether her leaving it to venture into a place of danger was in accord with reasonable care under the circumstances, and whether or nor her conduct was justified under the rescue doctrine. Likewise it was for the jury to say whether or not she had time to leave a place of danger when she saw the lights of the approaching car and whether what she then did was what an ordinarily prudent person would have done under similar circumstances. In short, considering the evidence and all logical and reasonable inferences deducible therefrom in the light most favorable to Mrs. Michalek, we are unable to say that the facts and circumstances were such as to permit of only one inference with regard to any negligence of her contributing to the accident. See Pinchbeck v. Balto. Tank Lines, Inc., 258 Md. 211, 217, 265 A.2d 238, quoting Plitt v. Greenberg, 242 Md. 359, 367-368, 219 A.2d 237. If more than one inference can be drawn from facts in respect of the issue of contributory negligence, it must be submitted to the jury. Tie Bar, Inc. v. Shartzer, 249 Md. 711, 716, 241 A.2d 582. And we observe that '(t)here may also be a jury question, even where negligence seems fairly clear, 'when the facts permit a finding that the injured party's conduct had its basis in a reasonable expectation. '' Kasten Constr. Co. v. Evans, 260 Md. 536, 542, 273 A.2d 90, 93, citing Bennett v. District Heights Apts., Inc., 252 Md. 655, 659, 251 A.2d 215 quoting from 1 Shearman and Redfield, Negligence, § 121 (rev. ed. 1941). Recognizing the proposition that '(i)t is a fundamental principle of negligence law that a person must use his Providence-given sense to avoid injury to himself', Southern Maryland Electric Co-operative, Inc. v. Blanchard, 239 Md. 481,...