Van v. McPartland

• Decision Date: 27 May 1966
• Docket Number: No. 210,210
• Citation: 242 Md. 543,219 A.2d 815
• Parties: James E. VAN v. Loretta G. McPARTLAND.
• Court: Maryland Court of Appeals

Page 543

242 Md. 543

219 A.2d 815

James E. VAN v. Loretta G. McPARTLAND.

No. 210.

Court of Appeals of Maryland.

May 27, 1966.

William H. Geppert and Hugh A. McMullen, Cumberland (Gunter & Geppert, Cumberland, on the brief), for appellant.

Milton Gerson, Cumberland (Simon F. Reilly, Cumberland, on the brief), for appellee.

Before PRESCOTT, C. J., and MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

McWILLIAMS, Judge.

Here is an unusual variation on a familiar theme. Detective Captain James E. Van (appellant), while driving his own automobile north on Frederick Street ¹ in Cumberland, struck Loretta G. McPartland, widow (appellee), aged 68, as she was crossing ² Frederick Street. From the $5,000 judgment, entered on the verdict of an Allegany County jury in her favor, Capt. Van has taken this appeal.

Van contends primarily and principally that appellee was guilty of contributory negligence as a matter of law. He lists other contentions but it will not be necessary for us to consider them.

It was clear and cold on 30 January 1964. After a bush day at headquarters Capt. Van decided to leave a little early. No doubt this was one of the perquisites accorded him by reason of his 37 years' service. Homeward bound he approached the intersection of Frederick and Centre Streets a little before five o'clock. The traffic light controls at the northeast corner were manned by Officer Stanken. Although the light was green Officer Stanken was expediting the flow of traffic through the intersection with arm signals. Van, 'three or four car lengths' behind the car in front of him, entered the intersection and went on through it. Frederick Street immediately beyond the intersection bears left about 45 degrees.

Meanwhile, appellee, on her way to Twigg's store (somewhere west of Frederick Street) was walking along the north side of Centre Street intending to cross Frederick Street. She stopped at the intersection and 'looked.' She said she saw Van's 'car standing over ther' waiting for the light to change. She testified she 'started across the street' and had her 'left foot on (the opposite curb) and * * * (her right) foot in the air when * * * (she) was hit.'

Van, as he came through the intersection, 'saw no one except people standing on the curb, (and) the traffic officer * * *.' He 'didn't see Mrs. McPartland until she was about a foot from * * * (his) car * * *.' He applied his brakes 'just a fraction too late to avoid the impact.' '* * * (A)t the impact (he said), * * * the upper portion of her body sort of came back on the hood toward the windshield and then * * * when the car stopped (within a foot or two, he testified) she * * * slipped to the ground.' At the time he estimated the distance from the front of his car to the building line on Centre Street to be 26 to 27 feet. Immediately he jumped out of his car and found her 'sitting in a slumped position * * * right in front of the car.' Officer Stanken and several bystanders helped him 'put her in the rear seat.' He left immediately for the hospital.

Officer Stanken testified 'there was a good bit of traffic that day' and he had been 'trying to get the traffic out of Frederick Street.' He recalled that after Van's car passed him he 'heard the squeal of tires.' He turned 'around and * * * saw the car striking the lady.' He said 'she rolled up onto the hood * * * and fell back down on the road * * * in front of the car.' She was lying 'approximately in the middle of the street * * * about 33 feet from where (he) was standing.' He testified also that (according to his measurements) she was 24 feet from the crosswalk and 10 feet from the west curb of Frederick Street.

Perry W. Fields, a retired bus driver, helped Officer Stanken and Van put the appellee into the rear seat. He said she was 2 feet in front of the car and about 10 feet from the west curb of Frederick Street. The distance from the crosswalk to where she was sitting in the street, in his judgment, 'was around about 20 or 22 feet.'

It was suggested at argument that the jury could have found from the evidence that appellee was actually in the crosswalk when she was struck. There were no 'lines or other marking(s)' (Code, Art. 66 1/2, § 2(a) (9) (1957)) indicating a pedestrian crossing. Counsel argued, however, that since she crossed where 'every one crossed' a finding that she was in the crosswalk was justified. We rejected a similar argument in State to Use of Block v. Miller, 199 Md. 521, 526, 87 A.2d 401 (1952). Custom or habit, we said, 'does not entitle * * * (pedestrians) * * * to establish a crosswalk which then gives them the right of way.' Counsel also attach some importance to the fact that Centre Street changes direction slightly at this intersection and that if the lines of the sidewalk are 'prolonged' they would enclose and area which would support a finding that appellee was in the crosswalk. But counsel have misread the statute. The statute defines the crosswalk as 'that portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.' Code, Art. 66 1/2, § 2(a) (9) (1957). (Emphasis supplied.) Prolongation of the lateral lines of the sidewalk obviously applies in cases where there is no change in the direction of the street at the intersection. Where there is a change of direction or where some other asymmetrical condition prevails the lines of the sidewalk at one curb should be connected with the lines of the sidewalk at the opposite curb to delineate the crosswalk.

Appellee does not, in so many words say that she was in the crosswalk (as we have defined it), nor indeed do any of the witnesses who testified on her behalf. She was shown a photograph upon which she made a mark to indicate the spot where she contends she was struck. Her mark, alongside a utility pole, is about 5 feet west of and clearly outside of the crosswalk. Moreover it seems to us quite likely she has confused the pole standing where she made the mark with a similar pole about 20 feet further up the street and approximately where she was picked up by Van, Fields and Officer Stanken.

Since appellee was crossing between crosswalks she was bound to accommodate herself to whatever vehicles were using the street. In Love v. State for Use of Nelson, 217 Md. 290, 297, 142 A.2d 590, 594 (1958), Chief Judge Brune, for the Court, restated the familiar principles of law which are controlling here:

'It is true that crossing a street between crosswalks has repeatedly been held or said not to constitute negligence per se (Nelson v. Seiler, 154 Md. 63, 76, 139 A. 564; Slaysman v. Gerst, 159 Md. 292, 150 A. 728; Legum v. State for Use of Moran, 167 Md. 339, 173 A. 565), but as was pointed out in Henderson v. Brown, 214 Md. 463, 468, 135 A.2d 881, 884, a pedestrian crossing between intersections 'must use the greatest care for his own protection. While both the pedestrian and the driver have an equal right to use the street, the amount of diligence and care needed on the part of each is shifted from one to the other according to where the accident happens. When a pedestrian crosses between intersections, the law requires him to know that he must accommodate himself to vehicles on the road, that he cannot dispute their right-of-way but must cross only as the traffic affords safe opportunity.'

'Cases in this State are numerous and uniform in holding that a pedestrian crossing a street between intersections is guilty of contributory negligence if he fails to look for approaching motor vehicles, or, if having looked, he fails to see such a vehicle, and so fails to guard against being struck by it. Webb-Pepploe v. Cooper, 159 Md. 426, 151 A. 235; Thompson v. Sun Cab Co., supra, (170 Md. 299, 184 A. 576); Jackson v. Forwood, 186 Md. 379, 47 A.2d 81; Billmeyer v. State to Use of Whiteman, 192 Md. 419, 64 A.2d 775; Dean v. Scott, 196 Md. 70, 75 A.2d 83; Males v. Davidson, 200 Md. 296, 89 A.2d 597; and Henderson v. Brown, 214 Md. 463, 135 A.2d 881, above cited. For an extensive review of cases dealing with the rights of motorists and pedestrians under the Maryland right of way law down to 1950, see Due and Bishop, Motorists and Pedestrians, 11 Md.L.Rev. 1.'

There remains for consideration appellee's assertion that she 'looked' and that when she looked Van's car was stopped on the other side of Centre Street. In disposing of this aspect of the case we think it might be helpful to set forth precisely what was said by appellee:

'* * * and I stood there for a while and I looked over and I saw this (Van's) car;'

'Q. Was the car moving or was it stopped? A. It was stopped.'

'Q. And did you look? A. I looked.

Q. And what did you see? A. I saw the car standing over there.'

'Q. Before you stepped off the curb did you look to your left to see if any traffic was coming? A. Yes, I did.

Q. Was there any traffic coming? I didn't see any cars.

Q. If there was traffic coming you didn't see them; is that right? A. No.

Q. And did you observe a police officer standing in the street directing traffic? A. No.

Q. You did not. A. No.'

'Q. Did you look again to the left to look for cars? A. I looked and still the car was stopped there and I crossed.

Q. I want to get the details of this so the Court and jury will understand. You stepped off of the curb and you looked again to your left to see the car; is that right? A. Yes, sir.

Q. And was the car still stopped? A. Yes, sir.

Q. Then you started on across. A. Right.

Q. Did you look again? A. No.

Q. You did not look again at any time? A. No.

Q. So you looked when...