Stem v. Nello L. Teer Co.

• Decision Date: 04 April 1957
• Docket Number: No. 94,94
• Citation: 130 A.2d 769,213 Md. 132
• Parties: Aubrey J. STEM, Jr., t/a Stem Motor Lines and James Dawson Carroll, v. NELLO L. TEER COMPANY, Inc. and Eastern Contractors, Inc.
• Court: Maryland Court of Appeals

Page 132

213 Md. 132

130 A.2d 769

Aubrey J. STEM, Jr., t/a Stem Motor Lines and James Dawson Carroll, v. NELLO L. TEER COMPANY, Inc. and Eastern Contractors, Inc.

No. 94.

Court of Appeals of Maryland.

April 4, 1957.

Dissenting Opinion April 16, 1957.

W. Hamilton Whiteford, Baltimore (William H. Price, Snow Hill, on the brief), for appellants.

John W. T. Webb, Salisbury (Webb, Bounds & Travers, Salisbury, on the brief), for Nello L. Teer Co., Inc.

Richard M. Pollitt, Salisbury (Vaughn E. Richardson, Salisbury, on the brief), for Eastern Contractors, Inc.

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

BRUNE, Chief Judge.

This is an appeal by the original defendants in a Lord Campbell's Act suit, arising out of a motor vehicle collision, from judgments entered on directed verdicts in favor of two other defendants, whom the appellants had impleaded under third party practice. The plaintiffs recovered judgments against the original defendants, pursuant to a stipulation and under instructions of the trial court in accordance therewith which was apportioned among the dependents of Benjamin F. Foxwell. There is, of course, no appeal from that judgment, which has been entered to the use of the appellants and presumably has been paid by them.

The original defendants, now appellants, are Aubrey J. Stem, Jr., trading as Stem Motor Lines ('Stem') and James Dawson Carroll, an employee of Stem. The decedent for whose death the suit was brought, Benjamin F. Foxwell, was killed in a head-on collision between his automobile, which he was driving, and a truck owned by Stem and driven by Carroll. Stem and Carroll impleaded the appellees, Nello L. Teer Company, Inc. ('Teer') and Eastern Contractors, Inc. ('Eastern'). Despite a denial by the original defendants of liability on their own part, the chief objective of the third party claim was apparently to enforce rights of contribution against Teer and Eastern under the Uniform Contributions Among Tortfeasors Act, Code 1951, Article 50, Secs. 20-29. Sec. 26 thereof, dealing with procedure, was superseded by our General Rules of Practice and Procedure Pt. Two, subd. III, Rule 4, which was in force when this case arose and was tried, and is now embodied in Rule 315 of the Maryland Rules.

Teer challenged the validity of the service of the third party claim because of a defect in the order authorizing it, but its objection was overruled. Four days later, and before its time to answer the third party complaint had expired, the plaintiffs filed an amended declaration (each containing but a single count). The amended declaration joined Teer and Eastern as defendants. Stem and Carroll filed the general issue pleas. Eastern, who had filed the general issue pleas to the third party claim, also filed them to the amended declaration. Teer demurred to the amended declaration, did nothing more about the third party claim, and, when its demurrer was overruled, filed the general issue pleas to the amended declaration. The case then went to trial on the general issue pleas of all of the defendants and the plaintiff's joinder of issue thereon. At the conclusion of the plaintiffs' case, Teer and Eastern moved for directed verdicts in their favor and the motions were granted over the objections of Stem and Carroll.

Following an overnight recess Stem and Carroll declined to offer any testimony. Thereupon, pursuant to the stipulation and instructions above mentioned, the jury returned a verdict in favor of the plaintiffs and judgment was entered accordingly. The appeal, as already stated, is from the judgments in favor of the other defendants, Teer and Eastern.

The questions presented on this appeal are: first, whether there was sufficient evidence of negligence on the part of Teer and Eastern at the conclusion of the plaintiffs' case to warrant submitting the plaintiffs' claim against them to the jury; and second, whether their motions for directed verdicts should have been granted before hearing testimony on behalf of the original defendants who had first brought Teer and Eastern into the case by impleading them.

The Facts.

Carroll was driving Stem's truck to deliver a load of fertilizer at a farm owned by John H. Delaney and Sons, located south of the point where the collision occurred. Carroll did not know the way. He stopped at Nichols' office in Fruitland, just south of Salisbury, to make inquiry. There he met Charles Nichols, Delaney's farm manager, who was about to drive back to the farm in his station wagon. Nichols suggested that Carroll follow him, and they drove south on U. S. Route 13, with Nichols leading the way. This was at about 11:30 on the morning of June 3, 1955, which was a clear day.

At that time Teer, as the general contractor, was constructing for the State Roads Commission a new roadway paralleling the existing main State highway, U. S. Route 13, between Salisbury and Princess Anne. Teer had a contract with Eastern under which Eastern was to haul fill dirt from a pit about three miles south of Fruitland and on the west side of Route 13 to the point where Teer was to use it in the road building work. This point was to the south of the pit and the route to be followed was easterly from the pit over a dirt road to Route 13, then south on the latter to a turn-off point. The pit apparently belonged to Teer and Teer had a crane there which was used to load Eastern's trucks with fill dirt.

Route 13 is a heavily traveled highway. At the point where the dirt road used by Eastern's trucks intersected it, there were fairly long, straight stretches (the exact length of which is not clear) to both the north and the south. By arrangement between Teer and the State Roads Commission warning signs were erected, two to the north and two to the south of the intersection, one at a distance of 1000 feet and one at a distance of 500 feet in each direction. The more remote sign was marked 'Caution' or 'Slow', the one 500 feet from the intersection was marked 'Caution, Truck Entrance', and the speed limit for the construction zone was posted as 35 miles per hour, instead of the usual 50 on that road. There were also two large drums painted red, one a little to the north, the other a little to the south of the intersection, set up on the white, painted line dividing the north and south bound lanes of Route 13. In addition, Teer stationed a flagman at the intersection in question. It was his duty to warn or 'flag down' traffic on the main highway so as to permit the hauling trucks to enter.

Nichols, who drove the road frequently, was familiar with all of these facts and was on the lookout for the flagman. As Nichols approached the intersection an Eastern truck was about to enter. The flagman stepped to the side of the road and 'dropped his flag' as a signal to stop when Nichols said he was 'just about to him' (the flagman) or 'very close' to him, or, as he said in another portion of his testimony, about 'twenty strides' away. In any event, Nichols stopped at the intersection without entering it. He testified that 'It was a sudden stop--if I was loaded--but with what I was driving, it was not too sudden.' He also testified 'There wasn't any trouble to stop.' He said his speed had been 30 to 35 miles an hour as he approached the intersection.

The Stem truck was following him. At what distance is not clear. Driscoll, the driver of Eastern's truck waiting to enter Route 13, said he first noticed it, after Nichols' station wagon had stopped, about 90 to 95 feet behind Nichols. He estimated that the truck was about 45 feet behind Nichols' car when the truck driver first applied the brakes. There was no skid mark. Nichols' testimony with regard to the speed of the truck was far from positive, since he was not watching it, but we shall take it as warranting an inference that it was about the same as his own (30 to 35 miles per hour) and for purposes of testing the sufficiency of the evidence against Teer and Eastern we shall disregard Driscoll's higher estimate of 40 or 45 miles an hour.

The shoulders of Route 13 were rather narrow--perhaps six or eight feet wide--north and south of the intersection, and there was a guardrail at the far side of the shoulders, with openings only for the dirt road. This may have looked discouraging to Carroll as a means of avoiding hitting Nichols' car. It also should have been evident to him for some distance after the entered the clearly marked danger zone.

The truck carried a load weighing seven or eight tons. As the driver tried to stop it, he swung over into the northbound lane of the highway, passed Nichols' stopped car at a speed of about five miles an hour (as estimated by Nichols) and at the south side of the intersection collided head-on with Foxwell's car. None of the witnesses who testified apparently saw the Foxwell car until almost the moment of impact. The evidence indicates that it should have been visible for a minimum distance equivalent to the length of three or four city blocks--say 900 to 1200 feet. There was some testimony to show that Foxwell's speed was not excessive.

Sufficiency of Evidence against Teer and Eastern at the Close of the Plaintiffs' Case.

When the appellants filed their third party claim, they asserted two grounds of negligence against Teer and Eastern. These grounds were later included in the plaintiffs' amended declaration.

One was that as Eastern's loaded trucks made the turn into Route 13 they spilled dirt and debris over the highway and that this contributed to the accident. This claim appears to have been completely abandoned, and it found no support in the evidence. We shall therefore not discuss it further.

The other ground upon which negligence was charged against Teer and Eastern was based upon the alleged negligence of the flagman in 'flagging down' traffic on Route 13. The appellants contend that this was enough to take the case to the jury as against both Teer and...