Privett v. Hauswald Bakery, 371

• Decision Date: 12 May 1970
• Docket Number: No. 371,371
• Citation: 258 Md. 218,265 A.2d 473
• Parties: Frances O. PRIVETT and Carl B. Privett v. The HAUSWALD BAKERY.
• Court: Maryland Court of Appeals

Page 218

258 Md. 218

265 A.2d 473

Frances O. PRIVETT and Carl B. Privett v. The HAUSWALD BAKERY.

No. 371.

Court of Appeals of Maryland.

May 12, 1970.

A. Harold DuBois, Baltimore (Stanley Levin, Verderaime & DuBois, Baltimore, and A. Freeborn Brown and Brown, Brown, Lanahan & Whitfill, Bel Air, on the brief), for appellants.

William M. Nicherson, Baltimore (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, FINAN, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

In the early winter of 1964 Mrs. Privett, the appellant, was driving her husband's new automobile north on Route 136, a two-lane road in Harford County, on the way to work about 8:30 in the morning when according to her view at the time, or her later more reflective version, one of two events occurred. At the time she said a bread truck left its position in front of a store on the east side of Route 136 and she thought it was coming out in front of her, hit her brakes and skidded (the morning was foggy and some snow and ice were on the road) into one of two cars parked in front of the store some six feet east of the roadway of Route 136. At the trial Mrs. Privett's hedge against her statement the morning of the accident was that the bakery truck came onto the smooth paved portion of Route 136 directly in front of her, causing her to slam on the brakes and skid into the parked car.

The truck driver says he started up from in front of the store-some twenty feet off Route 136-and drove within six feet of the roadway so that he could see to the left towards a curve around which Mrs. Privett was coming. Mrs. Privett says that when he saw her he backed up but says that before this he had driven to a position actually in the roadway directly in front of her.

The further testimony was that almost immediately after the accident Mrs. Privett told the truck driver that she was not hurt and the accident was her fault, and 'to go ahead and call the State Troopers,' and that she told the lady who owned the parked car she hit that it was her fault. The investigating State Trooper testified that Mrs. Privett placed the position of the truck when she hit the brakes as several feet off the paved portion of Route 136, and testified further that along the east side of Route 136 in front of the store there was loose stone or gravel which could be considered either a shoulder of Route 136 or part of the parking area in front of the store, most of which was paved.

Mrs. Privett makes two contentions to us. She says Judge Raine erred in not instructing the jury that as a matter of law she was not guilty of negligence and then erred in instructing the jury that the truck driver had not violated Code (1967 Repl.Vol.), Art. 66 1/2, § 234, unless he had entered the paved portion of Route 136 in violation of Mrs. Privett's rights as a driver on a smooth, paved highway favored over one entering the intersection from a private road.

The case clearly was one for the jury. Mrs. Privett's operation of her vehicle was such that she lost control of it and there was testimony that she told two people at the time, unequivocally, that the collision was due to her fault.

We turn to her second point. Judge Raine told the jury that the truck driver violated § 234 of Art. 66 1/2 only if he 'actually entered onto the paved portion of Maryland Route 136.' Mrs. Privett by he offer of prayers and by objection to the charge, which referred to the prayers, requested Judge Raine to instruct that under the statutory definition of a highway a shoulder is part of the highway and that the jury could find that the truck driver violated § 234 if they found that before stopping he had invaded the shoulder of Route 136 in violation of Mrs. Privett's right as the favored driver to proceed uninterruptedly along that highway.

We think Judge Raine correctly instructed the jury. It is true that Code, Art. 89B, § 2(a) defines 'Road-Highway' as broadly a can be imagined, as:

'Both the word 'road' and the word 'highway' include rights-of-way, roadway surfaces, roadway subgrades, shoulders, median dividers, drainage facilities and structures, roadway cuts, roadway fills, guardrails, bridges, highway grade elimination structures, railroad grade elimination structures, tunnels, overpasses, underpasses, and other structures forming an intergral part of a road or highway.'

It is equally true, however, that Art. 66 1/2, § 234, makes it the duty of the operator of a vehicle 'entering a paved public highway * * * from an unpaved public highway or from a private road or drive' to come to a full stop 'upon reaching the intersection, and yield the right-of-way to all vehicles approaching on such paved public highway.' The emphasis in the quotation was added and all subsequent emphasis in quoted statutes likewise has been added.

The statute makes the stopping point the near edge of the intersection. Code (1967 Repl.Vol.), Art. 66 1/2, § 2(a)(20) defines 'Intersection' as:

'The area embraced within the prolongation or connection of the lateral curb lines, or if none, the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles travelling upon different highways joining at any other angle may come in conflict.'

Article 66 1/2, § 2(a)(47), defines 'Roadway' as: 'That portion of a highway improved, designed, or ordinarily used for vehicular travel.'

The definition of 'Street or Highway' in Art. 66 1/2, § 2(a)(58), includes 'any highway or thoroughfare of any kind used by the public whether actually dedicated * * * or otherwise.'

We think it is clear from the definitions that the 'paved public highway' defined in § 234 of Art. 66 1/2 as 'a highway having a hard, smooth surface * * *,' see ...