Wallace v. Fowler

• Decision Date: 24 March 1944
• Docket Number: 27-30.
• Citation: 36 A.2d 691,183 Md. 97
• Parties: WALLACE v. FOWLER (two cases). SAME v. TRAVERS (FOWLER, Third-Party Plaintiff). TRAVERS v. FOWLER (WALLACE, Third-Party Defendant).
• Court: Maryland Court of Appeals

36 A.2d 691

183 Md. 97

WALLACE v. FOWLER (two cases).

SAME v. TRAVERS (FOWLER, Third-Party Plaintiff).

TRAVERS v. FOWLER (WALLACE, Third-Party Defendant).

Nos. 27-30.

Court of Appeals of Maryland

March 24, 1944

Appeal from Superior Court of Baltimore City; W. Conwell Smith Judge.

Action by Elbert Fowler, to his own use and to the use of Service Fire Insurance Company, against Ethan Wallace, by Elbert Fowler against Ethan Wallace, by Ethan Wallace against Elbert Fowler and by Arthur Travers against Elbert Fowler, for damages and personal injuries resulting from an automobile collision. The cases were consolidated, and, from the judgments Wallace and Travers separately appeal.

Reversed and rendered.

Paul Berman, of Baltimore, for Arthur Travers.

Eugene A. Alexander, III, of Baltimore (Frank F. J. Daily, of Baltimore, on the brief), for Ethan Wallace.

Harry K. Lott and A. Frederick Taylor, both of Baltimore (Allers & Cochran, of Baltimore, on the brief), for Elbert Fowler.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, and BAILEY, JJ.

SLOAN Chief Judge.

We have here four appeals in one record in cases growing out of a collision of two automobiles on the Ritchie Highway near the town of Glenburnie. There were three suits brought; one by Elbert Fowler, to the use of the Service Fire Insurance Company, against Ethan Wallace for damage to Fowler's car; another suit by Ethan Wallace against Elbert Fowler for personal injuries; Fowler moved for a joint hearing under the authority of the Rules of Practice and Procedure, Part III, Rule 2, and it was so ordered. A third suit was brought by Arthur Travers, a passenger in Wallace's car against Elbert Fowler for personal injuries. Fowler then moved to have Ethan Wallace made a third party defendant in the Travers' case under the provisions of the Act of 1941, ch. 344, Code, Art. 50, sec 27, and the motion was granted. The cases as consolidated came to trial by the court sitting as a jury. There was no formal order of consolidation after Travers' suit was brought, but it was agreed at the trial table that the cases be tried together. The result was a judgment in favor of Fowler, to the use of the Service Fire Insurance Company against Wallace for $485; a judgment in favor of Arthur Travers against Wallace, whom he did not sue, but who was brought in by Fowler, for $1,250; judgments in favor of Fowler and judgment in the case of Wallace v. Fowler, in favor of the defendant, Fowler. Wallace in the appellant in Nos. 27, 28, and 29, and Travers appealed in No. 30, where he had sued Fowler, who in turn brought in Wallace, and ended with a judgment against Wallace with a judgment in favor of Fowler. At the hearing, we had Travers and Wallace fighting for each other against Fowler, and Fowler against both of them.

The cases were tried by the court so that under the Rules of Practice and Procedure, Part III, Rule 9, this Court is required to pass on the law and evidence as in appeals from equity.

The facts, as they appear in the record, are that on August 1, 1942, Elbert Fowler, who owned one of the cars here involved, accompanied by Mrs. Rose Elswick, who was driving, had gone from Baltimore to a tea house, which is known as 'The Barn,' just north of Glenburnie on the dual highway between Baltimore and Annapolis.

They went in there, from whence they started south toward Annapolis, intending to cross over to the other and northbound lanes to return to Baltimore. The Ritchie Highway is a dual highway with two lanes of traffic in each direction, north to Baltimore, south to Annapolis, with a wide grass plot between the pairs of lanes. The left of the lanes, on each side, is for passing other cars going in the same direction, and there are numerous signs so warning motorists. In addition to the public road crossings, there are many cross-overs, to be used when drivers want to go in the opposite direction. In doing this, however, the driver must observe at his or her peril, the statute, Act of 1931, ch. 428, Code, Art. 56, sec. 238, of which so much as applies reads:

'(a) A vehicle shall normally be driven in the lane nearest the right hand edge or curb of the highway when said lane is available for travel except when overtaking another vehicle or in preparation * * * or as permitted in subdivision (d).

'(b) A vehicle shall be driven as nearly as is practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. * * *

'(d) The State Roads Commission may designate right hand lanes for slow moving traffic and inside lanes for traffic moving at the speed indicated for the district under this section, and when such lanes are sign-posted or marked to give notice of such designation a vehicle may be driven in any lane allocated to traffic moving in the direction such vehicle is proceeding, but when traveling within such inside lanes vehicles shall be driven at approximately the speed authorized in such lanes, and speed shall not unnecessarily be decreased so as not to block, hinder or retard traffic,' with penalties for its violation.

It would be negligent, aside from the statute, for a driver not to do what the statute says must be done. The Act of 1931, ch. 428, was amended without substantial change by the Act of 1943, ch. 1007. Code Art. 66 1/2, sec. 168 , with a saving clause (sec. 4) in the latter act as to all acts passed prior thereto, and the cause of action herein arose nearly two years before the passage of the Act of 1943.

These sections, 238 of Art. 56 and 168 of Art. 66 1/2, are just as mandatory as the 'Stop' sign at intersections, and what Judge Offutt said of that in the case of Greenfeld v. Hook, 177 Md. 116, 125, 8 A.2d 888, 892, 136 A.L.R. 1485, applies with equal force here:

'The two duties, of stopping and of yielding the right of way, are correlated and coordinate. That of stopping is to give force and practicability to that of yielding the right of way, by requiring the inhibited traveller before entering the intersection to stop in order that he may ascertain whether traffic is approaching over and along the favored highway. The rule could have no other rational purpose, for unless the inhibited traveller yields the right of way to traffic on the stop street, the mere act of stopping would be idle, useless and futile. The obvious and essential purpose of such rules is to accelerate the flow of traffic over through highways by permitting travellers thereon to proceed within lawful speed limits without interruption. That purpose would be completely frustrated if such travellers were required to slow down at every intersecting highway, and the vast sums which have been spent in their construction in an effort to accommodate the great volume of automobile traffic which is so indispensable a part of modern life, would be largely wasted. On the other hand the safety of the travelling public demands that the rules defining the relative rights of travellers on through highways and on highways intersecting them be clear unmistakable and definite. If the duty of stopping and of...