Safeway Trails, Inc. v. Smith

• Court: Maryland Supreme Court
• Writing for the Court: Before BRUNE; HAMMOND
• Citation: Safeway Trails, Inc. v. Smith, 159 A.2d 823, 222 Md. 206 (Md. 1960)
• Decision Date: 08 April 1960
• Docket Number: No. 184,184
• Parties: SAFEWAY TRAILS, INC., Trailways of New England, Inc., and Robert A. Neff v. Calvin B. SMITH, Arthur A. Gallagher, et al., etc. and Wayne C. Wood.

Page 206

222 Md. 206

159 A.2d 823

SAFEWAY TRAILS, INC., Trailways of New England, Inc., and Robert A. Neff v. Calvin B. SMITH, Arthur A. Gallagher, et al., etc. and Wayne C. Wood.

No. 184.

Court of Appeals of Maryland.

April 8, 1960.

Jeffrey B. Smith and M. King Hill, Jr., Baltimore (Smith, Somerville & Case, Baltimore, on the brief), for appellants.

Paul Berman, Baltimore (Sigmund Levin, Stanley Paul, Theodore B. Berman, Baltimore, on the brief for Calvin B. Smith), by Paul F. Due, Baltimore (Due, Nickerson, Whiteford & Taylor, Baltimore, on the brief for Arthur A. Gallagher, and others), by Foster H. Fanseen, Baltimore, for Wayne C. Wood.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

This appeal is by two intercity bus companies and their driver from a very large judgment in favor of a paying passenger who was seriously hurt when a bus sideswiped a heavy trailer.

The bus was owned by Trailways of New England, Inc., and was being utilized at the time by Safeway Trails, Inc. Calvin Smith, the injured plaintiff, boarded the bus one June night of 1957 in Baltimore to go to Philadelphia to visit his sister. About half a mile beyond the Susquehanna River bridge, on Route 40 while the bus was in the fast lane passing an automobile, its left side was ripped open, in the words of its driver, Neff, 'like a can opener on a can' by the rear right corner of a heavy fiatbed trailer which was projecting into the fast lane at a cross-over. Neff testified he did not see the silhouette of the trailer until he was sixty-five feet away; he had told the police he had not seen it at all as he approached.

At the point of the accident Route 40 is a dual lane highway with two twelve-foot lanes on each side, separated by a thirty-seven foot grass median strip. There are macadam shoulders about eleven feet wide on each side. The tractor-trailer, which weighed twenty thousand pounds was loaded with forty thousand pounds of steel covered by a dark tarpaulin. It was travelling towards Philadelphia ahead of the bus and had turned left into the crossway in order to drive to a garage on the other side to stop for the night. Traffic in the fast lane of the Baltimore-bound side of the road made the tractor stop at the edge of that lane for a minute or two. Because the over-all length of the tractor-trailer was forty-four feet, all of it would not go into the thirty-seven foot long crossway even though the driver 'jack-knifed' the rig, and the right rear corner of the trailer projected at an angle into the fast lane of the Philadelphia-bound side of Route 40 about a foot and a half. The tractor-trailer was equipped with some twenty lights, including red rectangular clearance lights on both the left and right rear corners, which delineated its outlines. It also bore seven red reflectors. All the lights were lighted at the time of the accident.

The jury exonerated the owner and driver of the tractor-trailer and Wood, the driver of the car which the bus was passing at the time of the accident. No one questions the correctness of the jury's action as to Wood.

The appellants claim error in the failure of the trial court to instruct the jury as they requested: (a) as to the boulevard law; (b) that, as a matter of law, their verdict should be for the plaintiff against the owner and driver of the tractor-trailer; and (c) that there was no evidence of excessive speed. A second main contention is that a verdict should have been directed in favor of Trailways of New England, Inc. Appellants strongly contend also that there was reversible error in refusing to declare a mistrial because of the cumulative effect of misconduct of a juror and an improper and inflammatory argument to the jury, and particularly to the juror in question, by counsel for the plaintiff. Finally, they urged that the trial court's 'erroneous consideration of the facts and law in denying defendants' motion for a judgment n. o. v. or a new trial amounted in reality to a failure to exercise sound discretion and the case should be remanded for a new trial.'

The bus companies excepted to the charge of the trial judge because the jury was not told that Route 40 is a boulevard and because the charge did not contain requested instructions that (a) 'The favored driver on the boulevard has nearly an absolute right-of-way over other vehicles and this dispenses with calculations of speed, time and distance;' (b) 'A driver on the boulevard is not required to slow down at intersections;' and (c) 'The primary, obvious and essential purpose of a boulevard is to accelerate the flow of traffic.' We find no error. At the end of the case the parties stipulated that Route 40 was a boulevard. The requested instructions were abstractions not related to the facts of the case. We think the boulevard law does not apply, but if it be assumed that it does, the instructions sought were too broadly stated. 'It is true that the driver on a boulevard is not obliged to anticipate that someone will negligently come into his path, but he is not excused from liability to his passengers if someone does come in, and he fails to avoid a collision because he did not look in time to see what was inevitable.' Sun Cab Co. v. Hall, 199 Md. 461, 467, 86 A.2d 914, 917. In the same case it was also said, in speaking of earlier boulevard cases: 'Neither of these cases holds that a driver on a favored highway can proceed without regard to the possibility of some other driver usurping his right of way.' In Fowler v. DeFontes, 211 Md. 568, 574, 128 A.2d 395, 398, we said: 'Of course, although the favored driver has the right to assume that the unfavored driver will yield the right of way to him, that does not mean that the traveler on the favored highway has an absolute, unqualified, and complete right of way at all times and under all circumstances. This right of way is to be enjoyed with due regard to the circumstances then and there existing.'

The boulevard law was not applicable here for several reasons. The tractor-trailer was not entering a through highway, it was leaving one. The proposition that a following motorist on a boulevard has the right either to assume that a vehicle ahead will uninterruptedly complete a left turn off the favored road, or to ignore the possibility that it will for some other reason temporarily block the highway, is new to us and we have not been referred to or found authority supporting it. By its express terms, the boulevard law controls entrance onto the favored highway; exit from it is not mentioned. Code (1957), Art. 66 1/2, Sec. 2(60) and Secs. 233 and 242.

The error claimed in the refusal to direct a verdict against the owner and driver of the tractor-trailer is that its violation of the boulevard law was the proximate cause of the accident. The contention is disposed of by our holding that the boulevard law was not applicable. Maryland permits a tractor-trailer as long as that involved to use the highways and it allows the left turn from the boulevard which was made. The driver of the tractor-trailer executed the only feasible and practicable maneuver available in making a lawful turn and his blinking turn lights and the other warning lights and reflectors warned drivers following that the crossing was too short by a foot and a half to contain all of the trailer. The question of the negligence of the tractor-trailer was for the jury.

On the question of speed a State trooper testified that the tachograph taken from the bus showed it was traveling at fifty-six miles an hour--a mile above the limit--and then said that a more detailed study made later showed the true and accurate figure shown to have been forty-six miles an hour. Plaintiff's counsel attempted, by cross-examination of the bus driver, to establish that the failure of the bus to stop after the accident until it had gone four hundred feet was evidence of excessive speed. After appellants had excepted to the court telling the jury they could decide whether the speed was under or over the limit, the trial judge supplemented the charge by advising the jury that 'the expert advice or testimony * * * [as] to the probable speed of the bus as determined from the tachograph would indicate a speed at the time of impact of forty-six miles per hour and not fifty-six miles per hour speed. I just want to make it perfectly clear that I was not suggesting to you that you should consider the speed as fifty-six miles per hour but the indication is that the actual speed was around forty-six miles per hour * * *.' If there was error in the original charge, it was cured by the supplemental instructions.

The evidence that Neff was not the agent of Trailways of New England, Inc., was neither uncontroverted nor conclusive, and the motion for a directed verdict in favor of that corporation properly was rejected. Trailways concedes the established rule that ownership of the bus gave rise to a presumption that the driver was its agent. When Safeway denied ownership of the bus by special plea, the plaintiff traversed it and sought by interrogatories to discover who owned and was operating the bus when the accident happened. Interrogatory thirteen asked the names and addresses of all corporations and persons 'who, on June 25, 1957, owned or had any interest in or any right to possession of the motor bus being operated by the individual defendant, Robert A. Neff, at the time of the collisions * * *.' (Emphasis supplied.) It further asked (as to each such corporation or individual) '(a) * * * in detail the nature and extent of the ownership, interest or right of each in the motor bus on said date;' '(b) If the name Safeway Trails, Inc., or a name similar thereto, is furnished in response to this interrogatory state, in detail, the relationship, if any, that existed between that company and the corporate defendant, Trailways of New England, Inc., on June 25, 1957, including particularly but not...