Schwier v. Gray

• Decision Date: 14 May 1976
• Docket Number: No. 150,150
• Citation: 357 A.2d 100,277 Md. 631
• Parties: Donald M. SCHWIER et ux. v. Horace Malyn GRAY.
• Court: Maryland Court of Appeals

Page 631

277 Md. 631

357 A.2d 100

Donald M. SCHWIER et ux. v. Horace Malyn GRAY.

No. 150.

Court of Appeals of Maryland.

May 14, 1976.

John F. Calabrese and Steven Rosen, College Park (DePaul, Willoner & Kenkel, P. A., College Park, on the brief), for appellants.

Leon Shampain, Annapolis (Vaughan & Shampain, Riverdale, and John J. Corbley, Executive Director, Mayland Automobile Ins. Fund, Annapolis, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

This is yet another 'boulevard rule' ¹ case, but unlike most that have reached this Court, where unfavored drivers were attempting to collect from favored drivers, here a favored operator is endeavoring to recover damages from an unfavored operator. The principal question for us to resolve in this appeal is whether there was sufficient evidence of contributory negligence on the part of the favored driver to authorize the submission of that issue to the jury. As we agree with the trial judge that there was, and since with respect to the other contentions raised by the favored driver we discern no reversible error, we will affirm the trial court's entry of final judgment in accordance with the jury's verdict for the unfavored driver.

The accident which is the genesis of this appeal occurred at dusk on the evening of April 16, 1972, when the plaintiff-petitioner Donald M. Schwier, while traveling on his motorcycle in an easterly direction along Annapolis Road (Route 450) in Prince George's County, collided with an automobile owned and operated by the defendant-respondent Horace Malyn Gray. The vehicle driven by Gray, having just traversed an exit ramp leading from the Baltimore-Washington Parkway to Annapolis Road, was beginning to cross the two eastbound lanes of Route 450 (at that point a four-lane highway divided in the center by a concrete median strip) and had actually intruded one to three feet onto Annapolis Road when the impact occurred. Schwier, who had been traveling in the right (outside) lane of Route 450 behind an automobile being driven in the same lane by Paul Snead, overtook the Snead vehicle when it stopped or nearly stopped in response to Gray's encroachment upon Route 450. As Snead decelerated, Schwier moved into the left lane, passed Snead, and then abruptly veered back into the right lane in such a manner as to bring his motorcycle close enough to the outside edge of Annapolis Road to collide with that portion of Gray's car which was encroaching upon Route 450. Since this intersection was controlled by a stop sign which required vehicles using the exit ramp to stop and yield the right-of-way to those traveling on Annapolis Road, motorcyclist Schwier was the favored driver and automobilist Gray the unfavored. Maryland Code (1957, 1970 Repl.Vol.), Art. 66 1/2, § 11-403(c).

Seeking compensation for his personal injuries and property damage, Schwier instituted this law action against Gray in the Circuit Court for Prince George's County. During the trial, at the close of all the evidence, Schwier made a motion for a directed verdict in his favor but Chief Judge Ralph W. Powers, concluding that there was sufficient evidence of contributory negligence on the part of the favored driver to require resolution of that issue by the jury, declined to grant the motion. The jury thereafter returned a verdict for Gray, the unfavored driver; this appeal followed.

In order to make a proper disposition of the issues presented in this appeal it is imperative that we recall and keep in mind this State's oft-asserted law with respect to the relative rights, duties and responsibilities of favored and unfavored drivers when, as here, the boulevard rule is applicable; consequently, we will in a summary manner set out these well-settled legal principles. We do so primarily by quoting the following passage from Creaser v. Owens, 267 Md. 238, 245, 297 A.2d 235, 239 (1972), one of our more recent decisions dealing with the boulevard rule:

'(I)f an unfavored driver is involved in an accident with a favored vehicle under circumstances where the boulevard law is applicable then in a suit based on that collision the unfavored driver is deemed to be negligent as a matter of law. (Thus), if the unfavored driver is a plaintiff, his suit is defeated (as a matter of law) unless the doctrine of last clear chance rescues his claim. (On the other hand), if the unfavored driver is a defendant (and the favored driver is the plaintiff (the present case), then the unfavored driver) is liable (, again as a matter of law,) except in the rare case when the issue of contributory negligence on the part of the favored driver is properly submitted to a jury (or is determined to be present as a matter of law) . . ..' (Citations omitted and emphasis added.)

To a like effect are Kopitzki v. Boyd, Md., 355 A.2d 471 (1976) and Hensel v. Beckward, 273 Md. 426, 330 A.2d 196 (1974).

Since Gray concedes he entered a favored highway (Annapolis Road) from an unfavored highway (an exit ramp controlled by a stop sign), that when he did so he failed to yield the right-of-way to the operator of a favored vehicle (Schwier), and that the ensuing accident occurred within the intersection, it is clear Gray was, as a matter of law, guilty of primary negligence which was a proximate cause of the accident. Kopitzki v. Boyd,supra, Md., 355 A.2d 471; Hensel v. Beckward, supra, 273 Md. at 429, 330 A.2d 196; Creaser v. Owens, supra, 267 Md. at 244-45, 297 A.2d 235.

Having established the unfavored driver's negligence, we now turn to the nub of this appeal-was the trial court correct in submitting to the jury the issue of whether the favored driver was contributorily negligent? Gray asserts that there was sufficient evidence of such negligence to present a jury question, while Schwier contends that he was free of contributory negligence as a matter of law. 'Where there is a conflict of evidence as to material facts relied upon to establish contributory negligence, or the act is of such a nature that reasonable minds, after considering all the circumstances surrounding the accident, may draw different conclusions as to whether it constituted contributory negligence, it is not for the court to determine its quality as a matter of law, but it...