Warner v. Markoe

• Decision Date: 14 January 1937
• Docket Number: 44.
• Citation: 189 A. 260,171 Md. 351
• Parties: WARNER v. MARKOE.
• Court: Maryland Court of Appeals

189 A. 260

171 Md. 351

WARNER v. MARKOE.

No. 44.

Court of Appeals of Maryland

January 14, 1937

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Action by Frank Markoe against Lea M. Warner. From an adverse judgment, the defendant appeals.

Reversed and new trial granted.

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

George Weems Williams and Jesse Slingluff, Jr., both of Baltimore for appellant.

Joseph T. Parr, of Baltimore (Rome & Rome, of Baltimore, on the brief), for appellee.

BOND Chief Judge.

The owner of an automobile, appealing from a judgment for damages sustained by his guest in the car from collision with another car at a street crossing, contends that there was error in the trial court's refusal to direct a verdict in his favor, and if not, then in refusal of an instruction on a possible finding by the jury that negligence on the part of the other car, coming from the left, was the sole cause of the collision.

On a Sunday afternoon, January 6, 1935, the plaintiff and the defendant embarked on a tour of drinking places, starting at the residence of the plaintiff at Riderwood, in Baltimore county, where they had wine. Thence they rode in Warner's car, driven by a colored boy employed by him, to a hotel at Towson, where they drank whisky and beer. They next drove to a tavern on North Charles street in Baltimore City, and the plaintiff had more whisky and beer. There they met another party of five, two young women and three young men, and the combined parties, of seven in all, rode in Warner's car still driven by the colored boy, to a night club on South High street, about two and a half blocks south of Pratt street, arriving at the club at about 9 o'clock. The plaintiff testified that he thought he might be the one who told the driver to go to the club as the group had decided, that either he or Mr. Warner told him. More drinking followed. The plaintiff's estimate of the number of his drinks from the beginning at Riderwood was eight or nine in all, and he added that he was not drunk, but that he would not have driven his own car if he had had it there. The driver, who had no drinks, testified that all his passengers were drunk. From the club, the plaintiff expected, as he said, to be driven back to the Charles street place to let off the second group, and then either to be driven or to take a train to his home.

The plaintiff also testified that in the afternoon, while driving into the city, the driver had run at a high rate of speed, far over the speed limit, and was ordered by the defendant to "Slow up," to which the plaintiff added, "Yes, I don't want to get killed in an automobile." It is not clear that any of the testimony refers to the rate at which they subsequently drove to the night club. After an interrupting question on that fact the plaintiff said the driver slowed up when he, the plaintiff, told him, but it seems that this may have been a continuation of his testimony on the speed coming into the city from Towson.

At the club the plaintiff remarked to one of the second party who had joined them, that "they had been out all day, and the chauffeur wanted to get home, and he had words with Mr. Warner to that effect"; and later, in the car, the plaintiff and the defendant talked of means of the defendant's getting money to pay the driver, who was hurrying because he had been kept out all day, "that is why he was hurrying."

Leaving the club, the occupants of the car took seats as they had been sitting when coming from the Charles street place, the plaintiff sitting on the defendant's lap on the right of the front seat, with another young man between them and the driver, and the remaining four on the back seat. According to the plaintiff's evidence, the car started north with a jerk, and ran to Pratt street, increasing its speed to a rate estimated by one witness as high as 50 or 60 miles an hour, never stopping for an intersection. And this evidence of excessive speed is the ground of the charge of negligence causing the injuries. It was testified that one of the passengers asked the driver not to go so fast. The driver contradicted the testimony that he was driving at a fast rate, or was in a hurry, or that he was cautioned at any time. The plaintiff made no remonstrance during the ride of two blocks and more north, and heard no remonstrance from others. He was, as he said, engaged in conversation with the defendant on the need of money to pay the driver, and on the driver's hurry to get home.

While crossing Pratt street the car was struck on the left rear by another car coming from the left on Pratt street, turned over, and came to rest in the neighborhood of 40 feet beyond Pratt street on High street; and this caused the injuries to the plaintiff. There is no testimony on the movements of the other car except that of the defendant's driver, who said it was about 50 feet to the left on Pratt street when the defendant's car started to cross, and that it struck the defendant's car on the left rear of it with such force as to knock him, the driver, off his seat. None of the passengers saw the car from the left, and the driver of that car did not testify.

The argument that there was a lack of evidence legally sufficient to support a finding of negligence in the driver of Warner's car causing the injuries, supposes, as it must on the evidence, that the jury might find the car was driven at the excessive speed of 60 miles an hour. The contention is that nevertheless the proximate, legal cause of the collision must have been the invasion by the driver of the other car of the right of way of the defendant, which was an independent intervening act that Warner's driver was not required to anticipate, and except for which his driving would have resulted in no harm. In Sun Cab Co. v. Faulkner, 163 Md. 477, 163 A. 194, and Monumental Motor Tours v. Becker, 165 Md. 32, 166 A. 434, in which invasion of the right of way was held as matter of law to have been the proximate cause of collisions at crossings, the traffic was governed by signal lights definitely appropriating the crossings to the defendants' drivers for the time being, and excluding drivers from the left or the right. In this case there is no mention of signal lights or other governing signals, the case appearing to have been tried on the assumption--as, indeed, the defendant contends--that control was left under the rule that a driver shall yield the right of way to another driver coming from the right. Code, art. 56, § 209, as amended by Laws 1929, c. 224. "There is no testimony that at the time and the place of the accident traffic was either controlled by traffic officers or signal devices or that either public highway had been designated as a maintraveled or through highway, so the general rule applicable, under ordinary circumstances, was that all vehicles shall have the right of way over other vehicles approaching at intersecting public roads from the left." Billotti v. Saval, 165 Md. 563, 565, 168 A. 890. It is a rule that applies only in appropriate circumstances, that is when the two drivers come to the crossing in such proximity in point of time as to require accommodation of one to the other. Jersey Ice Cream Co. v. Bach, 161 Md. 285, 292, 157 A. 277; Minch v. Hilkowitz, 162 Md. 649, 656, 161 A. 164; Paolini v. Western Mill & Lumber Corp.,

165 Md 45, 52, 166 A. 609. Determination of the right of way, thus left to the drivers, in each instance, commonly involves the exercise of some judgment, the driver from the left being required to yield to avoid apparent chances of collision; and the fact should to some extent influence the driving of the car from the right. For one coming from the left may expect to have cars from the right approach under control, in compliance with section 209 of article 56 of the Code, as amended, and taking care to avoid traffic from its own right as well as traffic from the left which might be ahead of it at the crossing; and the driving from the left is likely to be governed accordingly. But one which comes from the right at such a speed as 60 miles an hour, in disregard of other traffic, creates a different situation, adding a difficulty and hazard which the driver cannot trust the ordinary accommodation at crossings to render safe for his passengers. Surprise and miscalculation on the part of other cars and aggravation of the results of a collision, should one occur, would be a new contribution of his for which there...