Smith v. State Roads Commission

• Citation: 240 Md. 525,214 A.2d 792
• Decision Date: 01 December 1965
• Docket Number: No. 438,438
• Parties: Mary Virginia Baltzell SMITH v. STATE ROADS COMMISSION and State Accident Fund.
• Court: Maryland Court of Appeals

Page 525

240 Md. 525

214 A.2d 792

Mary Virginia Baltzell SMITH v. STATE ROADS COMMISSION and State Accident Fund.

No. 438.

Court of Appeals of Maryland.

Dec. 1, 1965.

Charles L. Carter, Jr., Baltimore, (O'Connor & Preston and Leroy W. Preston, Baltimore, and Edwin F. Nikirk, Frederick, on the brief), for appellant.

Charles R. Goldsborough, Jr., Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., J. Edward Holzer, Sp. Asst. Atty. Gen., and J. Raymond Buffington, Jr., Sp. Atty., Baltimore, on the brief), for appellees.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, OPPENHEIMER and McWILLIAMS, JJ.

McWILLIAMS, Judge.

On 17 September 1962, within a few minutes of 8:00 p. m., Joseph Leo Smith, an employee of the State Roads Commission, on his way home, drove his pickup truck off of Liberty Road and struck a telephone pole. He sustained injuries which caused his death. A post mortem examination was performed the following morning. In a specimen of blood taken from the heart there was present a concentration of alcohol amounting to 0.27%, indicating intoxication.

Within sixty days the widow (appellant), on behalf of herself and six minor children, presented her claim to the Workmen's Compensation Commission. A hearing was held 16 January 1963 on two issues. Was the deceased in the course of his employment when fatally injured? Was the accident the result of intoxication? The Commission found that the deceased was in the course of his employment and that the accident did not result solely from his intoxication. The employer and its insurer (appellees) noted an appeal to the Baltimore City Court. By agreement, the case was submitted for determination to the court without a jury on the single issue of intoxication. This appeal is from the court's finding that Smith's death resulted solely from his intoxication.

Not since S. Rosenbloom, Inc. v. Willingham, 190 Md. 552, 59 A.2d 311 (1948), have we been asked to consider the language of Sections 15 and 45 of Art. 101 of the Maryland Annotated Code (1957), which provides that where injury or death results solely from the intoxication of the injured employee, no compensation shall be paid. In that case the employee, who during twenty years of married life had never been seen intoxicated by his wife, drove his car off of the Matapeake Ferry at Sandy Point and a few minutes later, after the ferry had left, turned the car around, drove it toward the empty ferry slip and plunged into the Chesapeake Bay. No bottle was found on his person and the police who attempted to revive him by artificial respiration did not detect any odor of alcohol. Judge Henderson, for the Court said at 558, 59 A.2d at 313: 'No one saw the decedent take a drink. His conduct may have been due to alcohol or something else. * * * The action of the decedent was more suggestive of dementia than intoxication. We cannot say that the trial court was clearly wrong in finding that causes other than intoxication played a part in the accident.' Judge Henderson also reviewed the earlier cases, in all of which the evidence of intoxication was either conflicting, minimal or presented situations demonstrating that intoxication was not the sole cause of the death or injury.

In the case before us the fact of intoxication, if not actually admitted, is established, for the first time in Maryland, by evidence which is both overwhelming and unchallenged. Whether or not the trial judge was clearly erroneous in concluding that the death of Smith resulted solely from his intoxication is the issue raised by appellant's principal contention and the one which we shall consider first.

I.

The evidence produced at the trial shows that Smith, a resident of New Windsor, was 40 years old, 6 feet tall, and weighed 214 pounds. He commuted daily in his 1948 half-ton Ford pickup truck to White Marsh, a distance of about 55 miles, where the construction of the Northeastern Expressway (now Kennedy Expressway) required his services as an inspector. Because rain fell during most of the last day of his life, Smith and Jack Hartman, another inspector, quit work around 3:30 and went to a tavern nearby. Smith borrowed five dollars from Hartman and they each had two glasses of draft beer and a barbecue sandwich. Hartman recalled that Smith had a few dollars besides the five he had loaned him. They both left around four o'clock, each going his separate way. Where Smith went or what he did thereafter we do not know.

At 8:08 p. m., Officer Robert Borgmann of the Baltimore County Police received a call directing him to investigate an accident on Liberty Road at a point 8.1 miles north of its intersection with the Beltway. Upon arrival he found Smith's severely damaged truck lying on the north shoulder of the road just beyond a shallow curve, slightly banked to the left, and 47 feet beyond a telephone pole with which it had collided. The front wheels and the front axle were about half way between the pole and the truck. The pole itself was fractured about four feet above the ground and the impact had pushed it at ground level about a foot away from its normal position. There were no marks on the road or the shoulder to indicate skidding or sliding prior to the collision. Although it had stopped raining, the surface of the road was damp. Liberty Road at this point is 25 feet wide with a solid double yellow line in the center. The posted speed limit is 30 miles per hour.

There was no evidence of any mechanical defect in the truck nor any evidence of malfunction in its operation. There was no evidence of blowout or other tire trouble nor of any defect in the road.

Dr. Russell S. Fisher, the Chief Medical Examiner, testified that both the American Medical Association and the National Safety Council take the position that a person with a concentration of 0.15% alcohol in his blood must be considered under the influence of alcohol insofar as motor vehicle operation is concerned. ¹ He said the presence of 0.27% would indicate that the person was highly intoxicated and that he would show this in terms of some staggering and a very clear cut and evidence decrease in his ability to perform finer motions such as braking or steering an automobile, walking in a straight line, or any activity requiring a high degree of physical coordination, and that many people 'pass out' at this level. He also said that the amount of alcohol in Smith's body at the time of the accident amounted to a pint of one hundred proof whiskey and that he did not drink less than that amount because that was the amount that was present.

It was stipulated that in September of 1962 in the eight mile stretch of Liberty Road between the Baltimore Beltway and the scene of the accident there were located six bars, saloons or cocktail lounges. It is conceded that Smith habitually used this part of Liberty Road going to and returning from work.

Appellant claims that there were other factors besides intoxication which contributed to the accident. She cites the fact that the road surface was damp; that it was a dark, cloudy day; that illumination was poor; that it was hazy; that excessive speed is indicated; that the telephone pole was 2 feet east of the shoulder; that this was the fifth of a series of curves that some of the curves were double curves. She suggests that any number of things could have happened, such as Smith's having been blinded by on-coming lights; swerving to avoid an animal; being run off the road by an oncoming car; sneezing; falling asleep. She argues that something else must have contributed to the accident and that a finding that intoxication was the sole cause is pure speculation.

She might, with equal force, have argued that the road ran north and south instead of east and west, that the sun was not shining, that it was September instead of May. We all know that a road surface is damp after a rain and that tire adhesion may be less precise than it is on a dry road, depending, of course, on the type of tread and its condition, the degree of inflation, the surface of the road, the efficiency of the vehicle's suspension and the judgment and skill of the operator. Every motorist knows that driving on wet, damp roads is one of the facts of life common to all users of the highways. The day was indeed dark and cloudy. But what of that? This accident happened at night. Perhaps illumination was poor at the scene of the accident but must we not assume that Smith, as the law requires, had turned on his headlights? Perhaps it was hazy, but there are many degrees of haziness and there is no evidence here that the haze, if any there was, in any way inhibited visibility. That the pole was 2 feet east of the shoulder has no relevance. The shoulder was 7 feet wide which would put the pole at least 9 feet from the traveled portion of the road. It is not suggested that under the circumstances this amounted to a hazard in any way peculiar to Smith's daily travel. Much is made of the curves and the claim of excessive speed. It is impressed upon us that this is the fifth of a series of curves and that some of them were double curves. What the other four, whether single or double, have to do with this accident has not been demonstrated. The photographs in evidence show a simple, shallow, slightly banked left-hand curve. One could speculate endlessly on what speed would be too great for its successful negotiation.

Appellant argues that the damages to the truck and the nature of Smith's injuries require a finding that his speed was 'excessive' or, in other words, that he was going too fast to get safely around the curve. Appellant does not provide us with a definition of 'excessive' as used herein. 'Excessive speed' is one side of an equation, the other side of which has many factors which can be arranged in infinite combinations. What weight, for instance, should be given to the skill and experience of the driver? Was he a Stirling Moss or a teen-ager just licensed? ...