Tobin v. Hoffman

• Decision Date: 15 May 1953
• Docket Number: No. 142,142
• Citation: 96 A.2d 597,202 Md. 382
• Parties: TOBIN et al. v. HOFFMAN et al.
• Court: Maryland Court of Appeals

Page 382

202 Md. 382

96 A.2d 597

TOBIN et al. v. HOFFMAN et al.

No. 142.

Court of Appeals of Maryland.

May 15, 1953.

Stanley B. Frosh, Silver Spring, for appellants.

Hal C. B. Clagett, Upper Marlboro, and Albert E. Brault, Washington, D. C. (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for Dreas & Bowen.

James F. Couch, Jr., Brentwood (Vaughan, Couch & Blackwell, Brentwood, on the brief), for Hoffman.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

SOBELOFF, Chief Judge.

A collision between two automobiles at a street intersection in Washington, D. C., gave rise to this case which was brought in the Circuit Court for Prince George's County. Questions of substantive law are therefore to be decided according to the law of the District of Columbia, although procedural matters are governed by Maryland law. Black Diamond S. S. Corp. v. Robert Stewart & Sons, 336 U.S. 386, 69 S.Ct. 622, 93 L.Ed. 754; W. W. Clyde & Co. v. Dyess, 10 Cir., 126 F.2d 719.

Mary Tobin, the plaintiff, was a passenger in a car driven by one of the defendants, Frederick Hoffman, her husband's business partner. Her suit was against him and against Alvin Dreas and George Bowen, the owner and operator, respectively, of a taxicab which collided with the car in which the plaintiff was riding. Her husband, Jack Tobin, was co-plaintiff, but our references to plaintiff are intended to refer to Mrs. Tobin.

Proceeding east on Kennedy Street in Washington on a dark, rainy night in May, 1951, Hoffman approached the intersection at Third Street. The latter is the favored artery, and stop signs on Kennedy Street protect Third Street traffic. The block of Third Street south of Kennedy traverses a hill, the ridge of which is approximately 200 feet south of the intersection, from which point it descends to Kennedy.

A full stop was made by Hoffman, who testified that he looked in both directions, saw nothing, and after Mrs. Tobin looked and declared that she saw nothing, he proceeded more than one-half of the way across the intersection, at which point the rear of the right side of his car was struck by the northbound taxicab. As a result of the collision, plaintiff was thrown clear of the vehicle, rendered unconscious, and sustained considerable injuries.

The above facts are uncontradicted, but from this point on the parties are in controversy as to the facts and their legal implications. Testimony of both plaintiff and Hoffman is to the effect that they saw no lights on the other vehicle and that they were not aware of its approach until an instant prior to the accident. According to the plaintiff they were then three-fourths of the way across the intersection. Hoffman also testified that after the arrival of the police, he turned off his lights at their order, but that on the taxicab one light was broken, and the other was out. He further testified that he was in sole control and operation of the vehicle and in no wise relied upon Mrs. Tobin.

At the end of the plaintiff's case the trial Court granted motions for directed verdicts in favor of each of the three defendants. In an oral opinion the Court held Mrs. Tobin guilty of contributory negligence as a matter of law because 'she failed to keep a proper lookout to her right for her own protection' and this, it was held, directly contributed to her injury.

After concluding that plaintiff and Hoffman were engaged in a joint enterprise, the Court added: 'That means that so far as her right of action against Hoffman was concerned if she was not then an active partner she was certainly a stand-in partner for her husband and that the Tobin suit against Hoffman represents an effort on the part of one partner to sue the other partner for a tort arising out of the conduct of the partnership business and the rule with reference to joint enterprise and the assumption of risk would certainly apply in such case.' Finding at most but a scintilla of evidence of negligence attributable to the cab driver, the Court also held that there was no proof of the defendants' primary negligence to warrant submission of the case to the jury.

1. Pertinent to a consideration of the question of primary negligence of the taxicab operator is section 28(b) of the Traffic and Motor Vehicle Regulations for the District of Columbia which reads: 'At any point at which an official 'Stop' sign has been erected all vehicles shall come to a complete stop and shall yield to other vehicles within the intersection or approaching so closely thereto as to constitute an immediate hazard, but said driver having so yielded may proceed and other vehicles approaching the intersection shall yield to the vehicle so proceeding into or across said intersection; * * *'. It has been held by the Municipal Court of Appeals for the District of Columbia that the right of way created by this regulation is not absolute in E. P. Hinkel & Co. v. Gerondikas, D.C.Mun.App., 48 A.2d 459; Towles to Use of Plymouth Ins. Co. v. Arcade-Sunshine Co., D.C.Mun.App., 32 A.2d 870; Yellow Cab Co. v. Sutton, D.C.Mun.App., 37 A.2d 655. We think these cases demonstrate that triers of fact could reasonably attribute negligence to the taxicab operator.

Nor can we be oblivious to the testimony of Hoffman that there were no lights on the taxicab prior to the collision. See Spund v. Myers, 67 App.D.C. 135, 90 F.2d 380, which held that evidence of headlights which were out immediately after the accident was of some evidentiary validity on the question of whether the lights were out at the time of the accident. At least it is evidence constituting more than a scintilla as to negligence.

2. We are confronted with a directed verdict for the three defendants, partly on the ground that the plaintiff was contributorily negligent as a matter of law 'by failing to see the vehicle which was within view and its danger to the driver Hoffman so as to avoid the accident.' With this ruling we disagree.

A jury could reasonably find that when the plaintiff and Hoffman both looked and did not see, it was because the cab had not at that time reached the peak of the hill and could not have been seen, or having started downhill, it was not visible because it was not illuminated. It must be borne in mind that Hoffman's car was struck when it was three-fourths of the way across the intersection, a situation which raises a jury question as to the conduct of the operators of both vehicles. The Court assumed negligence on the plaintiff's part when it declared that the vehicle was in view, a matter which appears to be not at all clear, at least from the plaintiff's case and in the absence of the taxicab operator's version. Reasonable men may well differ in their judgment as to this. What has been said here as to the question of plaintiff's negligence could likewise apply to defendant Hoffman's alleged negligence.

3. The next question is whether Hoffman's negligence, if any, is attributable to the plaintiff. Assuming a partnership relation between Hoffman and the plaintiff and her husband, or even between Hoffman and plaintiff herself, we do not think that the mere existence of partnership and common purpose in the journey render inevitable an imputation to her of Hoffman's negligence, if any. We recognize that notwithstanding that title to the car was in Hoffman, it was nevertheless, by agreement, partnership property. Before Hoffman's alleged negligence may be imputed to plaintiff there must be a finding that she could exercise, or in fact exercised, control over the car's operation.

Concerning the requisites of a joint adventure, the Municipal Court of Appeals...