Owens v. Creaser

• Decision Date: 06 March 1972
• Docket Number: No. 127,127
• Citation: 288 A.2d 394,14 Md.App. 593
• Parties: Martha OWENS et vir v. Frank Allen CREASER.
• Court: Court of Special Appeals of Maryland

Page 593

14 Md.App. 593

288 A.2d 394

Martha OWENS et vir v. Frank Allen CREASER.

No. 127.

Court of Special Appeals of Maryland.

March 6, 1972.

Thomas P. Meehan, Washington, D. C., with whom was Michael K. Heaney, Washington, D. C., on brief, for appellant.

Laurence T. Scott, Rockville, for appellee.

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

THOMPSON, Judge.

Martha Owens, the plaintiff/appellant, driving alone in a Montgomery County school bus, was involved in an accident with Frank Creaser, defendant/appellee. Creaser struck the bus as Mrs. Owens was turning left onto a favored highway from a stop sign controlled gravel road. The appellant sued for personal injuries and on appeal claims the trial court committed reversible error by granting the appellee's motion for directed verdict on the issue of contributory negligence. She also contends that the trial court abused its discretion in refusing to permit the investigating police officer to give certain expert opinions.

In determining the propriety of the motion for directed verdict we, as well as the trial judge, must consider the evidence together with all reasonable and legitimate inferences which may be deduced therefrom, in a light most favorable to the plaintiff. Mazer v. Stedding, 10 Md.App. 505, 271 A.2d 381, Md. Rule 552. We narrate the evidence accordingly.

About 7:00 A.M. on March 9, 1970, a clear dry morning, the appellant was driving a Montgomery County school bus in an easterly direction on Stewartown Road, toward its intersection with Goshen Road. Stewartown Road is a gravel public road approximately 20 feet in width with one terminus at Goshen Road; the entrance to Goshen Road is controlled by a stop sign. Goshen is a two lane, blacktopped road with a paved width of approximately 20 feet, and it runs roughly north and south; its lanes at the intersection are divided by a double yellow line and the speed limit is posted at 40 miles per hour. Looking north along the upgrade of Goshen Road an observer at the intersection has a road visibility of not more than 200 feet. Visibility beyond is, by nature, physically impossible because of a curve and a hill. The measured distance from the northernmost edge of Stewartown Road to the crest of the hill is 175 feet. An observer's visibility south from the intersection is unobstructed for almost 1000 feet. The stop sign on Stewartown Road is placed about 8 feet west of the edge of the paved surface of Goshen Road. A driver who halts his vehicle at the stop sign has a very limited view of traffic on Goshen because of a bank, large trees and bushes.

Appellant initially stopped at the sign, she then 'creeped out' and stopped the second time at the westernmost edge of Goshen Road. Looking first to her right and then to her left and once more to her right, she saw no oncoming traffic, and while continuously looking to her left and still not seeing any traffic, she began to swing the school bus into a left turn. The bus was in second gear, proceeding at 5 miles an hour or less, with its front wheels approximately at the double yellow lines when the appellee's Cadillac 'jumped over the hill.' (W)hen I looked up and saw the defendant's car he was rolling, I know at least 60 or more.' She attempted to accelerate her 29 or 30 foot long bus in an attempt to clear the appellee's proper lane of traffic but the front end of the car struck the left front wheel of her bus. She testified that appellee was moving at 20 to 30 miles per hour at the time of impact. There was evidence that the force of the impact turned the front end of the bus around as though it had been making a right turn. Mrs. Owens testified that, '. . . the force of knocking me out of my seat, I knew it had to be really great. Because I didn't just fall out of the seat, it threw me . . . out of the seat belt and out of the seat.' She claims she was thrown headlong into the step-well and sustained injury.

Montgomery County police officer, Donald M. Crowley, testified that his investigation revealed that by standing on Goshen Road, where Stewartown intersects, he was able to see north a maximum of 200 feet. He placed impact at a point 18 inches to 2 feet north of a line extending the northernmost edge of Stewartown Road and 5 or 6 inches into the northbound traffic lane of Goshen. Damage to the car was generally to the front but most heavily to the right front. The bus had its left front fender, bumper and wheel damaged. The officer testified that on Goshen Road, he measured 166 feet of '. . . deep dark burning (skid) marks. You could rub (them) and it would leave marks on your fingers.' He explained that this recorded distance was computed by totaling the length of the skid marks left by each of the four automobile tires and dividing by 4. One hundred forty-five feet of the marks were in the southbound lane and then crossed into the northbound lane where they continued 17 feet to the point of impact and 4 feet beyond. The school bus came to rest 34 feet 11 inches to the south or southeast of the point of impact with its nose slightly off of the road.

There was testimony that the Cadillac automobile weighed 4,000 pounds; the weight of the school bus was not given.

Immediately prior to the accident, one Charles Frazier was parked in a driveway facing the west side of Goshen Road about 400 yards north of the crest of the hill. As he was preparing to drive out of the driveway, he observed appellee's car traveling south at 'I would estimate between 60 and 65 miles per hour.' He testified that from his experience he could estimate the speed of a car viewed from his position within about 5 miles per hour.

The appellee, Frank Creaser, called as a hostile witness, was not asked his speed immediately prior to the accident but testified that he was very familiar with Goshen Road, having driven it twice a day for 7 years. Of its intersection with Stewartown Road, he testified, 'It is a place where you should be cautious . . . It is one where I am always cautious.'

I

The threshold question simply stated is: is an unfavored driver/plaintiff always, as a matter of law, guilty of contributory negligence when involved in an accident with a favored driver at or near a stop sign controlled intersection? ¹

In 1966, John W. T. Webb, Esq., writing in 26 Md.L.Rev., 111, made an exhaustive analysis of the Maryland cases and predicted that an unfavored driver would be held guilty of contributory negligence as a matter of law in all such situations. ² The Courts have since continued to apply the rule most rigorously, Cornias v. Bradley, 254 Md. 479, 255 A.2d 431; Oddis v. Greene, 11 Md.App. 153, 273 A.2d 232; in fact there is little doubt that Maryland applies the boulevard rule more strongly than most other jurisdictions. 3 A.L.R.3d 180, 236, 281. Brown v. Ellis, 236 Md. 487, 495, Road, having driven it twice a day for 7

We are required to apply the law as interpreted by the Court of Appeals. Neither we, nor the Court of Appeals have, until now, faced a factual situation where it was possible, indeed probable, for a finder of facts rationally to conclude, that due to the physical facts, the unfavored driver was not negligent.

In Cooper v. Allen, 243 Md. 9, 219 A.2d 920, the Court found the unfavored driver guilty of contributory negligence as a matter of law because 'he did not yield the right of way' to a motor vehicle which has been stopped at a stop light some 150 feet distant, operated by an alcoholically stimulated driver, who speeded forward paying no attention to the unfavored driver and crashed into him. It must be noted that in Cooper the issue was whether or not the unfavored driver yielded within the meaning of the statute; there was no evidence that the unfavored driver kept a lookout while proceeding through the intersection nor attempted any evasive action. Thus, the unfavored driver violated his duty to keep a continuous watch for traffic as required by Fowler v. DeFontes, 211 Md. 568, 128 A.2d 395.

The Court in Cornias v. Bradley, supra, applied the boulevard rule to a complicated intersection with many lanes of traffic and 8 traffic lights. There was positive evidence the unfavored driver did not keep a lookout for traffic and of course, consequently failed in his duty to yield to traffic on the favored highway.

In Oddis v. Greene, supra, the unfavored bicycle rider could have, had he looked, seen the favored vehicle in time to avoid the collision. In Bayliss v. Federal Mutual Insurance Co., 13 Md.App. 166, 282 A.2d 531, it was obvious the unfavored driver could have seen the approaching traffic had she been dutifully attentive.

The cases relied upon by the appellee are readily distinguishable. Shriner v. Mullhausen, 210 Md. 104, 122 A.2d 570, presents a somewhat similar factual situation to the instant case except that: (1) although the nearest crest of a hill was 225 feet from the intersection, a second hill beyond the first, was visible from the intersection, the Court said the unfavored driver was guilty of negligence in '. . . not yielding the right of way when Mrs. Shriner's car was evidently in the depression between the two hills. If he had waited a few moments longer to give an approaching vehicle the time to clear that depression, the accident here would not have happened.', and (2) there was no evidence that the favored driver was speeding. In holding an unfavored driver guilty of contributory negligence, even though the favored driver was engaging in a speed contest, the Court in State to Use of Frizzell v. Gosnell, 197 Md. 381, 79 A.2d 530, said at 535, 'If the defendants were racing, and (the unfavored driver) saw them, or by the exercise of reasonable care and caution could have seen them in time to prevent the accident as he proceeded across the highway, but did not do so, and the collision resulted, (the unfavored driver) was guilty of contributory negligence as a...