Straughan v. Tsouvalos

• Decision Date: 07 April 1967
• Docket Number: No. 104,104
• Citation: 228 A.2d 300,246 Md. 242
• Parties: Clinton C. STRAUGHAN v. Chryson TSOUVALOS and James Tsouvalos.
• Court: Maryland Court of Appeals

Page 242

246 Md. 242

228 A.2d 300

Clinton C. STRAUGHAN v. Chryson TSOUVALOS and James Tsouvalos.

No. 104.

Court of Appeals of Maryland.

April 7, 1967.

Frederick J. Green, Jr., Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellant.

Peter G. Angelos, Baltimore, for appellees.

Before HAMMOND, C. J., MARBURY, OPPENHEIMER, and McWILLIAMS, JJ., and ROBERT C. MURPHY and CHARLES AWDRY THOMPSON, Special Judges.

ROBERT C. MURPHY, Special Judge.

Chryson Tsouvalos and her husband, James, an elderly Greek couple (65 and 73 years of age respectively when the accident occurred), were struck by an automobile owned and operated by appellant Straughan on January 16, 1963 as they were walking across Eastern Avenue near its intersection with Oldham Street in Baltimore City. A jury in the Superior Court of Baltimore City awarded damages to Mrs. Tsouvalos for her injuries in the amount of $6,300 and awarded $3,700 to Mr. Tsouvalos for his wife's medical and hospital expenses and for his loss of her services. The lower court entered an order granting a new trial unless Mrs. Tsouvalos filed a remittitur in the amount of $800 and Mr. Tsouvalos a remittitur in the amount of $1,200. The remittiturs were filed, and judgments were entered in favor of Mr. and Mrs. Tsouvalos in the respective amounts of $5,500 and $2,500. From those judgments Straughan has appealed to this Court, contending that the lower court erred in its instructions to the jury, and in admitting certain testimony at the trial.

The essential facts are these: Appellees had left their home on the morning of the accident to walk to their bank of Eastern Avenue. They walked in an easterly direction on the south side of Eastern Avenue, arriving at the southeast corner of the intersection of Eastern Avenue and Oldham Street at approximately 11:10 a. m., at which time they prepared to cross to the northeast corner. The intersection is controlled by an automatic traffic light and there is a ten foot marked pedestrian cross-walk from the southeast to the northeast corner. Oldham Street runs north and south and is fifty-six feet wide south of Eastern Avenue, but only forth-three feet wide north of Eastern Avenue. At this point, Eastern Avenue consists of four ten-foot lanes, two eastbound and two westbound.

At approximately the same time that appellees were standing on the southeast corner of the intersection, the appellant, who was southbound on Oldham Street, had stopped his vehicle for a red light at Eastern Avenue. When the light turned green for traffic on Oldham Street, appellant made a left turn to proceed in an easterly direction on Eastern Avenue and, in so doing, the right front bumper of his automobile struck the appellees who, when the light turned to red for traffic on Eastern Avenue, began crossing from the southeast to the northeast corner of the intersection.

The investigating police officer arrived at the scene of the accident after appellees had been taken by ambulance to the hospital. Appellant gave the officer a written statement at that time indicating therein that he was proceeding about fifteen miles per hour when the accident occurred; that he struck appellees at a point about ten feet north of the south curb line of Eastern Avenue and fifteen feet east of the southeast curb line; and that he did not see appellees 'until they stepped from the curb.'

Mrs. Tsouvalos, who did not speak English well, testified at the trial through a duly sworn interpreter. She stated that she and her husband began to cross Eastern Avenue when the traffic light turned in her favor. She testified that before they started across the street she saw that the light was in her favor and that there was no traffic; that had there been traffic, she would not have crossed; that 'I stepped down on the street from the sidewalk and I saw the car coming, and we were hollering at him to stop, stop, but he did not stop, but he strike us and threw us on the street'; and that the automobile was 'coming from Oldham Street, cross Eastern Avenue and came to the corner.' When asked how far away appellant's vehicle was when she first saw it, she responded by equating the distance with that of the width of Eastern Avenue. In response to the further question of whether, when she first saw appellant's automobile, it was 'farther away' than the length of a ten foot table or of a sixteen foot room, she answered: 'About that it had to be.' Mr. Tsouvalos, also testifying through the interpreter, stated that when the light turned in their favor he and his wife 'stepped immediately down' and started walking in the crosswalk, and had proceeded 'about six or seven feet' after which 'all sudden like, a car came on us and strike us.' He further testified that before stepping into the street he looked left and right, but saw the appellant's vehicle 'for the first time when it came to, just to strike us, about six or seven feet in the street, it all, all sudden like.'

Appellant testified that his vehicle was the first in line waiting for the red light on Eastern Avenue to change to green; that when the light changed he looked for northbound traffic on Oldham Street, but there was none coming; that he looked for pedestrians, but there were none; that he then proceeded to make his left turn, and 'as I was coming up then I seen Mr. and Mrs. Tsouvalos and I applied my brake.' Appellant further testified: 'When I was traveling east, after I made my turn, that's when I seen them'; that he first saw appellees when they were in the street 'about four to five feet from the curb'; and that he was then 'practically on top of them' and although he applied his brakes he could not stop. He also testified that although he told the police officer that he was going fifteen miles per hour, he wasn't sure of his speed, but wasn't traveling fast.

There was a conflict in the evidence as to whether appellees were within the pedestrian crosswalk or several feet east of it when the impact occurred. An eyewitness who observed the accident from a considerable distance placed appellees within the crosswalk, as did the testimony of appellees themselves. Appellant placed appellees several feet east of the crosswalk at the time of the accident. There was evidence showing that after the impact, appellant's vehicle moved ahead only six to eight inches, leaving no skid marks; that the front of appellant's vehicle came to rest five or six feet east of the east side of the crosswalk; that Mrs. Tsouvalos was thrown by the impact of the collision about eight to ten feet and that she and her husband had come to rest in the street about seventeen feet east of the southeast curb line and eight feet north of the south curb line in Eastern Avenue.

I

Appellant advanced the theory at trial that the evidence permitted a finding that Mrs. Tsouvalos (and her husband) had begun crossing in the crosswalk at a time when appellant's vehicle was in such close proximity that he could not, in the exercise of ordinary care, bring his vehicle to stop in time to avoid the collision. He embodied this theory in his second and third requests for instructions as follows:

'2. If the jury find that the accident happened within the pedestrians crosswalk, then even though the defendant did not have the right of way, he was entitled to proceed forward on the assumption that a pedestrian, then crossing within the crosswalk, would not begin to do so at a time when the defendant's vehicle was in such close proximity to the pedestrian that he, in the exercise of ordinary care, could not bring his vehicle to a stop in time to avoid the accident, then the plaintiff was guilty of contributory negligence and the verdict of the jury must be for the defendant.

'3. Even though pedestrians have the right of way within the crosswalk, the driver of a vehicle is entitled to assume that a pedestrian will not assert his right-of-way and attempt to cross the street at a time when the defendant could not, in the exercise of ordianry care, stop his vehicle in time to avoid striking the pedestrian.'

The trial judge declined to grant the requested instructions or to incorporate their basic substance in his charge to the jury. Appellant contends that the court's action constituted reversible error. We do not agree.

Code (1957), Article 66 1/2, Section 193(a)(1)(2) provides that whenever traffic is controlled by signals exhibiting different colored lights successively, all vehicles shall yield the right of way to pedestrians lawfully within the intersection at the time such signal is exhibited, and that pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk. Under this statute and predecessor statutes of like import, it has been repeatedly held that a pedestrian has a right to assume that the motorist will obey the law and yield the right of way to him; in other words, a pedestrian favored as to right of way is not bound to anticipate or required to foresee that his rights would not be honored. Folck v. Anthony, 228 Md. 73, 178 A.2d 413, 3 A.L.R.2d 549 (1962); Jackson v. Yellow Cab Co., 222 Md. 367 (1960); Henderson v. Brown, 214 Md. 463, 135 A.2d 881 (1957); Caryl, for use of Merchants Mutual Casualty Co. v. Baltimore Transit Co., 190 Md. 162, 58 A.2d 239 (1948). On the other hand, a pedestrian at a crosswalk is not free from obligation to observe the rule of due care and caution to avoid injury. Sun Cab Co. v. Cialkowski, 217 Md. 253, 142 A.2d 587 (1958); Chasanow v. Smouse, 168 Md. 629, 178 A. 846 (1935). Hence, before entering the intersection at the crosswalk, the pedestrian must use due care to look for oncoming vehicles, since he cannot place himself directly in the path of oncoming traffic in blind indifference to his situation. Baker v. Commissioner of Motor Vehicles, 228 Md. 454, 180 A.2d 482 (1962); Legum v. State, 167 Md. 339, 173 A. 565 (1934). This does not mean that the pedestrian, having...