Sonnenburg v. Monumental Motor Tours

• Decision Date: 15 June 1951
• Docket Number: No. 170,170
• Citation: 81 A.2d 617,198 Md. 227
• Parties: SONNENBURG v. MONUMENTAL MOTOR TOURS, Inc.
• Court: Maryland Court of Appeals

Page 227

198 Md. 227

81 A.2d 617

SONNENBURG v. MONUMENTAL MOTOR TOURS, Inc.

No. 170.

Court of Appeals of Maryland.

June 15, 1951.

Isidor Roman and Eugene A. Alexander III, Baltimore (Harry Lott, Baltimore, on brief), for appellant.

Paul F. Due, Baltimore (Due, Nickerson & Whiteford, Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a judgment, on a directed verdict, in a suit brought by appellant's intestate against appellee and Harry M. Cromwell for damages to decedent's store and residence property, Nos. 1542 and 1540 N. Patterson Park Avenue, at the southwest corner of Federal Street, which resulted from a collision at that crossing between appellee's bus, going south on Patterson Park Avenue, and Cromwell's automobile going west on Federal Street, and the consequent propulsion of the bus across the sidewalk into and through the store and into the wall of the residence.

Patterson Park Avenue is a boulevard and has the required stop signs at Federal Street. North of Federal Street it is forty-one feet, nine inches wide from curb to curb, with sidewalks fourteen feet and thirteen feet, eight inches wide; south of Federal Street it is forty-one feet, eight inches wide, with sidewalks fourteen feet, nine inches and fourteen feet, eight inches. East of Patterson Park Avenue Federal Street is fifty-nine feet, nine inches wide, from curb to curb, with sidewalks twenty feet and twenty feet, three inches wide; west of Patterson Park Avenue it is only thirty-nine feet, five inches wide, with sidewalks thirteen feet, two inches and thirteen feet, one inch. Thus, a projection westward of the center line of Federal Street (from curb to curb) east of Patterson Park Avenue would be less than three feet north of the south curb of Federal Street west of Patterson Park Avenue. From the plat it appears that east of Patterson Park Avenue the northern building line of Federal Street is a continuation from the west in a straight line or at an imperceptible angle toward the south, though the testimony of appellee's bus driver would indicate that the line east of Patterson Park Avenue was perceptibly south of, or at a perceptible angle toward the south from, the line west of Patterson Park Avenue.

The accident occurred about 4:30 P. M. on April 12, 1949, a clear day. Appellee's bus, in which there were no passengers, was going south on Patterson Park Avenue. Miss Augusta Ochs, then thirteen years old, who was sitting on her front steps at No. 1530, says the bus was coming 'at a terrific rate of speed'. Millard C. Kromm, appellee's driver, says that just before reaching Federal Street he was changing gears from second, at which the maximum speed permitted by the governor was twenty-two miles an hour, to third, thereby reducing his speed. Frederick K. Gerst, who was driving a truck with his wife and two children north on Patterson Park Avenue, says the bus was going not more than twenty miles an hour; when he was about twenty feet south of Federal Street, he saw Cromwell's automobile about twenty-five feet east of Patterson Park Avenue, going thirty-five or forty miles an hour; the bus was then about five feet north of the north building line of Federal Street; he knew Cromwell 'wasn't going to stop, so I stopped', if he had not stopped Cromwell probably would have run into him and killed his wife and 'kids'; Cromwell went right straight ahead and ran into the bus; they came together 'sort of more on an angle', the right front of the car and the left front of the bus collided; from the time he first saw Cromwell, Cromwell went in a straight line, the bus and the car were both coming in a straight line; when the car hit the bus the bus 'sort of glanced to its right;' the bus was on its right hand side of the street, whether any part of it was left of the center he does not know; the car was on its right hand side of the street. Miss Ochs, who was looking up Patterson Park Avenue, did not see the car until the collision. She says 'the bus dragged the car over into the property on the corner'; the collision occurred 'about the center of the intersection'. Mr. Kromm, who is twenty-nine, has been driving automobiles since he was sixteen; he looked at the street intersection as he approached it, looked to his right and left and saw nothing as he started to cross; when he was back at the building line he could see about half a block, to the far side of the street, on the near side he could only see a few feet from the intersection, 'you can't see around corners'; 'I was on a boulevard and I had the right to assume the right of way in the first place, but I was cautious about the intersection because it is--well, I know it to be a bad one. I used to live in that neighborhood'; he saw the car as it hit him, he was then 'approximately halfway across the intersection, about middleway'; the left front of the bus and the right front of the car came together. The collision 'threw me from the seat and I went over toward the step well on the righthand side of the bus [formed by the steps and the closed door, where when the door is open passengers enter and leave the bus] and I managed to scramble out and turn the ignition switch off and when I tried to turn the wheels to the left to get the bus back on the street I found the wheels were locked and there was nothing I could do about it, and it happened just about as fast as I can talk about it.'

Because of the different width and location of Federal Street east and west of Patterson Park Avenue the parties differently interpret the testimony that the car continued in a straight line across Patterson Park Avenue and the collision occurred in the centre of the intersection. Appellant says the collision occurred about sixty-five feet, appellee about thirty-five feet, from the store corner which the bus struck. We may assume, without deciding, that the testimony would warrant more than one inference, but it is difficult to find evidence of a distance appreciably greater than fifty feet. If the bus was going twenty miles an hour, the time between the collision of the car with the bus and the collision of the bus with the store--what appellant calls the 'two accidents'--would be slightly more than one second and less than two. If the speed of the bus was greater, the time was less.

Cromwell filed a plea, but did not testify or take part in the trial, in person or by counsel. The court directed a verdict for appellee, and for appellant against Cromwell. The jury found a verdict for $8,148.75 against Cromwell for damages to the property and contents. Neither appellant nor appellee disputes that Cromwell caused or directly contributed to the injury and damages. If negligence of appellee directly contributed to the injury and damages, then Cromwell and appellee are jointly and severally responsible to appellant. If appellee was not negligent, then Cromwell alone is responsible. Evidently Cromwell is financially irresponsible.

Appellant contends that negligence of appellee directly contributed to (1) the collision of the car and the bus, which appellant calls the 'first accident' and (2) the collision of the bus with the store, which appellant calls the 'second accident'. As to the 'first accident' appellant contends that: Negligence is relative, a breach of duty owed by one to another. The boulevard law primarily governs the relative rights and duties of favored and unfavored drivers. The duty to keep a bus off the sidewalk and out of a store and dwelling is a higher duty than that owed to an unfavored driver who by his violation of the boulevard law causes a collision. A bus is heavier, and in that respect more dangerous, than an ordinary automobile. Negligence of other drivers is one of the known dangers of driving. The driver knew this was a bad crossing. If he had looked, he could have seen, as Mr. Gerst saw, that Cromwell was not going to stop and could have avoided the accident. Instead, he went ahead 'at a terrific speed' without looking, or without looking when he could have seen.

These contentions are now open only to the extent, if any, to which they have not been foreclosed by the decisions of this court. The boulevard law, now Art. 66 1/2, secs. 178, 187, originated in Chapter 224 of the Acts of 1929. Decisions of this court construing the statute become part of the statute and continue to be so unless and until changed by statute. Greenfeld v. Hook, 177 Md. 116, 8 A.2d 888, 892, 136 A.L.R. 1485, was decided almost twelve years ago. It was a suit by an unfavored driver against the favored driver. Notwithstanding the plaintiff's contributory negligence this court found sufficient evidence to go to the jury on the last clear chance theory. The court, saying it was considering 'the relative rights of travellers' on a boulevard and an intersecting highway, Shedlock v. Marshall, 186 Md. 218, 232, 46 A.2d 349, stated the nearabsolute right of way of the favored driver, his right to assume that the unfavored driver will both stop and yield the right of way and to 'exercise the privilege of uninterrupted travel' without stopping or slowing down to bring his car into control. Greenfeld v. Hook has repeatedly been quoted in later cases. Little has been added to what was then said regarding 'the relative rights of travellers', but much has been done in expanding the scope and application of what was then said to persons in other relations. In Clautice v. Murphy, 180 Md. 558, 563, 26 A.2d 406, 408, the court said, 'The driver of the taxicab was of course under the duty to recognize that drivers from the left will often cross negligently, miscalculating the chances of collision. United Railways & Electric Co. v. State [to Use of Lapka], 163 Md. 313, 325, 163 A. 90; United Railways & Electric Co. [of Baltimore] v. Crain, 123 Md. 332, 91 A. 405; Lange v. Affleck, 160 Md. 695, 155 A. 150, ...