U.S. Fidelity & Guaranty Co. v. Continental Baking Co.

• Decision Date: 17 March 1937
• Docket Number: 5.
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CONTINENTAL BAKING CO.
• Court: Maryland Court of Appeals

190 A. 768

172 Md. 24

UNITED STATES FIDELITY & GUARANTY CO. v. CONTINENTAL BAKING CO.

No. 5.

Court of Appeals of Maryland

March 17, 1937

Appeal from Superior Court of Baltimore City; Rowland K. Adams Judge.

Action by the United States Fidelity & Guaranty Company, for its use and the use of Ellsworth D. Dryden, against the Continental Baking Company. From a judgment on an instructed verdict for defendant, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Robert D. Bartlett, of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant.

Rignal W. Baldwin, Jr., and Douglas N. Sharretts, both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellee.

SLOAN Judge.

On March 4, 1933, Ellsworth D. Dryden, a sergeant of the state police, was in charge of the escort to Gov. Albert C. Ritchie to and from the Presidential inauguration held that day in the city of Washington. On the return from Washington to Annapolis, Sergeant Dryden collided with a bakery truck of the defendant, the Continental Baking Company, appellee, at the intersection of Rhode Island avenue with 34th and Perry streets at Mt. Rainier, located north of and adjacent to the District of Columbia in Maryland. Sergeant Dryden was riding a motorcycle, and as a result of the crash was seriously injured. He and Corporal Flakenstine headed the procession then Gov. Ritchie in a closed car, followed by an open car, which had been used by the Governor in the inaugural parade, occupied by Melvin V. Shanley, Charles N. Brill, Irvin H. Sentz, and Clarence A. Thornberg, with Officer H. G. Schultheis on a motorcycle in the rear. Rhode Island avenue runs northeast from Washington toward Baltimore, and, at the place of the accident, is intersected by Thirty-fourth street running north and south, and Perry street running east and west, and intersecting each other at Rhode Island avenue, which at this point is 86 1/2 feet from curb to curb, with two street car tracks almost in the center of the street. The avenue is paved its entire width. There are eight traffic lights and four traffic signals or signs in the intersection, so that every driver has ample notice of the character of the intersection. The place is densely populated. There was a safety zone painted white, with buttons about 3 inches high at the near end, about 70 feet from the intersection with South 34th street, with the front or vertical line of the safety zone 40 feet from that intersection. The safety zone is useful only in locating the witnesses and their evidence, but otherwise has nothing to do with the case.

At the conclusion of the plaintiff's case, the trial court granted the defendant's prayer for an instructed verdict for want of legally sufficient evidence of primary negligence, and from the judgment thereon the plaintiff appeals.

This suit is brought by the United States Fidelity & Guaranty Company of Baltimore, insurer, of the commissioner of motor vehicles of Maryland, whose officer or employee Ellsworth D. Dryden was injured, as stated, in the course of his employment, the declaration charges, as a result of the defendant's negligence, and the insurer sues to reimburse itself for the costs and expenses incurred as such insurer under the provisions of article 101, § 58, of the Code.

The police and two cars, after they left the district line, were going at the rate of from 26 to 30 miles an hour, which was several miles per hour in excess of the legal rate of speed permitted in crowded districts (20 miles an hour, Code Supp.1935, art. 56, § 194 (3), and the appellee argues that this is evidence of contributory negligence of Sergeant Dryden. It has been held in this court that the mere violation of a statute or rule of the road is not evidence of negligence unless such violation is the proximate cause of the injuries sued for (Kelly v. Huber Baking Co., 145 Md. 321, 334, 125 A. 782; Greer Transportation Co. v. Knight, 157 Md. 528, 537, 146 A. 851; Oberfeld v. Eilers (Md.) 189 A. 203), but in this case we do not see where the speed of the sergeant's car had anything to do with the negligence charged on either side, proximate or contributory.

The appellant also argues that because the motor vehicle officers were escorting the Governor of Maryland on an official expedition that their right was superior to that of the other users of the road, and the appellee's answer is that the officers were then merely employees of the department of motor vehicles whose only duty was to patrol the roads of the state and to enforce the traffic laws as they there existed (Act of 1918, c. 85, § 136, and section 137, as amended by Acts 1920, c. 506, § 137, Code of 1924, art. 56, §§ 175, 176), and that they did not become police officers of the state until the establishment of the department of Maryland state police by the Act of 1935, c. 303, Flack's Supplement to Code art. 88B, and that even then they had no such privileges as would entitle them to override or suspend the traffic laws of the state. So far as we are here concerned with the duties of the state police as traffic officers, there is no difference between their former and present status, and it still is as defined in Sudbrook v. State, 153 Md. 194, 138 A. 12, and in Rosenthal v. Durkin, 142 Md. 18, 119 A. 685, and it is not necessary to the decision of this case to discuss the question of any superiority over other users of the road on this occasion because of the official character of the work to which they had been assigned by their superior officials. They were doing road patrol work at the time and were officially engaged, even if they were not pursuing violators of the traffic or other laws. No such emergency, however, is shown as to justify any action on the part of the officers to disregard the precautions taken to promote the safety of the traveling public, or to protect the Governor of the state.

The collision in this case, resulting in injury to Sergeant Dryden, occurred about 30 feet from the intersection of South 34th and Perry streets with the southeasterly side of Rhode Island avenue, and 6 or 7 feet from the southeasternmost rail of the car tracks, the bakery truck coming to rest, after the accident, between the tracks. The only evidence in the record is that of the plaintiff and its witnesses, and it is conflicting, much of it throwing little light on the true situation, although they were all mixed up in the accident. These accidents generally occur so quickly that the recollection of what happens, even to the participants, is not always accurate, and the evidence often unreliable.

The rule with respect to road intersections, where the traffic is directed by signal lights or semaphores as stated in Blashfield's Cyc. of Automobile Law, 1926 to 1931 Supp., p. 482, § 15d, is: "An automobile which enters a street intersection in which a police semaphore system of lights has been installed with the green or crossing light facing him, is entitled to continue until it clears the intersection, whether the green changes to amber and the amber to red or stop sign before he completes the crossing or otherwise. Traffic awaiting the green or crossing signal on intersecting streets must first ascertain whether the intersection is clear before starting to cross." Harrison v. Loyocano, 12 La.App. 228, 125 So. 140. "The superior right of way at street intersections, controlled by traffic officers or signals, belongs to that vehicle, trolley car or pedestrian whose course is favored by the traffic officer or signal, subject to the rights of those already in the intersection." Galliano v. East Penn Elec. Co., 303 Pa. 498, 154 A. 805, 807.

The evidence is that the green and red lights each remained on for fifteen seconds, with an intervening amber light for five seconds, and the only inference we draw from the evidence is that it was in those five seconds that everything happened. On the right side, the direction Sergeant Dryden was going, the side from which the bakery truck entered, the break in the Rhode Island avenue sidewalk, made by the entry of 34th and Perry streets, was about 85 feet. When the collision took place, the officer had gone half this distance, or about one second from the intersection, two seconds from the safety zone. In the car track, at the safety zone, a roadster had been stalled or was in trouble, and Corporal Falkenstine dodged around the left of it, when Dryden for an instant glanced toward Falkenstine, then looked ahead and saw the bakery truck, his first sight of it, out in Rhode Island avenue in the path of his motorcycle, and too near to avoid the collision. He did not know where it came from. Falkenstine said as he was passing to the left of the stalled roadster "he observed the white truck coming to his right and just as he passed the front end of the truck he heard the crash."

Dryden testified "that half way between Thirty-third and Thirty-fourth streets the traffic light was green, and the last time he looked at the light as they were going into it it changed to...