Whitt v. Dynan

• Decision Date: 13 February 1974
• Docket Number: No. 256,256
• Citation: Whitt v. Dynan, 315 A.2d 122, 20 Md.App. 148 (Md. App. 1974)
• Parties: Phillip Baxter WHITT v. Philip A. DYNAN et al.
• Court: Court of Special Appeals of Maryland

Page 148

20 Md.App. 148

315 A.2d 122

Phillip Baxter WHITT v. Philip A. DYNAN et al.

No. 256.

Court of Special Appeals of Maryland.

Feb. 13, 1974.

Clarence E. Pusey, Jr., and Shirley J. Stanton, Timonium, for appellant.

W. Lee Harrison, Towson, with whom were G. Mitchell Austin and Cooper C. Graham, Towson, on the brief, for appellees.

Argued before MOYLAN, MENCHINE and DAVIDSON, JJ.

DAVIDSON, Judge.

On 24 February 1972 an automobile struck and killed a pedestrian, Joseph Lee Dynan, aged 20. His parents, Philip and Rosnell Dynan, and his father as personal representative of his estate sued Phillip Baxter Whitt, the driver of the automobile, for damages. At the trial in the Circuit Court for Baltimore County, Judge Walter R. Haile denied Whitt's motion for a directed verdict. A jury returned verdicts totaling $12,000 in favor of the parents and estate of the deceased. Whitt's subsequent motion for judgment n. o. v. or a new trial was also denied. This appeal followed.

Most of the relevant facts in this case are not in dispute. Any discrepancies have been resolved in favor of the appellees. ¹ York Road, also known as Maryland Route 45, runs north and south through Baltimore County. The accident occurred in a residential area on the east side of York Road south of its intersection with Padonia Road, an intersection at which traffic is governed by a traffic signal. The Padonia Village Shopping Center is located in the southeast quadrant of that intersection. An entrance to the shopping center is located on the east side of York Road about 200 feet north of the site of the accident. About 62 feet north of the site of the accident Harding Street intersects the west side of York Road. Traffic at this 'T' intersection is controlled by a stop sign located on Harding Street. Between the site of the accident and Padonia Road there are no public streets which intersect the east side of York Road, nor is there evidence of any streets intersecting the east side of York Road south of the accident site.

At the site of the accident York Road has a paved width of 44 feet. The pavement is divided by a double yellow line which separates the northbound from the southbound traffic. On each side of that line there is a twelve-foot lane, one for traffic moving north and one for traffic moving south. Adjoining each of these twelve-foot lanes there is a ten-foot-wide paved shoulder. While there is a small crack that separates the ten-foot-wide paved shoulder from the twelve-foot-wide traffic lane on the east side of York Road, there are no broken white lines or other lane markings dividing the northbound lane from the northbound paved shoulder. The paved shoulder on the east side of York Road is generally used by motor vehicles for the purpose of making right-hand turns. The speed limit on York Road at this location is 40 miles per hour.

At the edge of the northbound paved shoulder there is a slight downgrade. Thereafter the terrain levels off. The houses along the east side of York Road are set back a considerable distance from the road, although the mailboxes serving these houses are located in close proximity to the edge of the northbound paved shoulder. There are some large trees along the road. There are no sidewalks on the east side of York Road in this area.

On the night of the accident the deceased, a boy of slender build, was living by himself in an apartment within a house located on the east side of York Road 'about two blocks south of where the accident took place.' At about 7 p. m. he decided to cash his paycheck at a Drug Fair located in the Padonia Village Shopping Center. When he reached a point approximately 62 feet south of Harding Street he was walking north approximately four or five inches from the edge of the paved shoulder on the east side of York Road. The unpaved downhill slope adjoining the paved shoulder on which he was walking was 'slushy and muddy,' and there was snow on the level land immediately adjoining it on the east. The deceased was dressed in dark clothing. It was 'on its way to getting dark' and there was no artificial illumination at that location.

Appellant Whitt was on his way home from work when the accident occurred. He lived between a quarter and a half of a mile north of the accident site and was familiar with the road, on which he traveled every day to and from work. Just before the accident he was driving at a speed of approximately 40 miles an hour in the northbound 12-foot lane of York Road in a two-door 1970 Ford approximately 6 1/2 feet wide, and there were cars behind him. Southbound traffic was heavy. He was approximately three car lengths behind a small compact car driven and owned by Mr. Richard C. Philipp. His headlights were on low beam, his windshield was unobstructed, and he had no problems with his vision. The car ahead of him slowed down somewhat. In order to go into the shopping center Whitt pulled over onto the northbound paved shoulder at a steady speed of 40 miles an hour. Just as the front of his car pulled ahead of Philipp's car he struck the deceased, whose body was thrown about 42 feet to the northeast and came to rest on the unpaved downgrade immediately at the edge of the northbound paved shoulder. Whitt testified that he did not see the boy before he struck him. The boy was taken to the hospital where he died. The right side of the windshield of appellant's car was broken and the right fender and radio antenna were damaged.

Richard C. Philipp and his wife, Linda Anne, were in the small compact car Whitt was passing when the accident occurred. Mr. Philipp, who was driving, testified that his car was going 35 to 40 miles an hour until he began to slow down to stop for the red light at Padonia Road. Whitt had been traveling behind him for some distance, and he moved over to the paved shoulder on the right when Philipp slowed down. As Whitt's car was traveling alongside of his, separated by approximately three feet, he saw the deceased walking on the paved shoulder about four or five inches from its edge. Philipp speculated that the deceased was probably 'going in between the mailboxes' and opined that there was no other place for a pedestrian to walk. When first observed, the boy was about 100 feet in front of him. Philipp testified that he had no difficulty in seeing the boy, and noticed him because he saw both the white portions of the bottom of his tennis shoes and the reflection from metal studs attached to the side seams of his dungarees. Philipp realized that 'either the boy was going to jump out of the way or get hit and I knew he couldn't even see the car coming from behind him.' He applied his brakes, swerved to the left and moved as close to the center line as he could. He then saw appellant's vehicle strike the boy. According to Philipp, the deceased boy did not look to his rear to observe approaching vehicles.

Mrs. Linda Anne Philipp testified that at the time of the accident she was a passenger in her husband's car. She first saw the boy walking on the edge of the paved northbound shoulder with his back to the traffic when he was approximately 150 feet ahead of her and before Whitt's vehicle started to move to the right, and continued to observe both him and the Whitt car until he was struck. She stated that neither the Whitt vehicle nor the boy altered their course at any time. Moreover, the deceased never turned around nor glanced to his rear.

Appellant contends that his motion for a judgment n. o. v. should have been granted. He maintains that Code (1957), Art. 66 1/2, § 11-506(b) prohibits a pedestrian from walking along a highway except on the left side facing oncoming traffic. He asserts that the decedent was contributorily negligent as a matter of law because the evidence establishes that the deceased was walking along the right side of the road with his back toward the approaching traffic. Appellees contend that the statute requires a pedestrian to walk on the left side of the road facing traffic only when it is practicable to do so. They insist that the evidence shows that in order to comply with the statute the deceased would have had to cross York Road against heavy traffic without benefit of a crosswalk or traffic light at a time when visibility was poor. They conclude that the question of whether noncompliance with the statute was justified under these circumstances was properly submitted to the jury. Neither of these positions is entirely correct.

Code (1957) as amended, ² Art. 66 1/2, § 11-506 provides:

'(a) Where sidewalks provided.-Where sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.

'(b) Where sidewalks not provided.-Where sidewalks are not provided, any pedestrian walking along and upon a highway shall walk only on the left shoulder, when practicable, or on the left side of the roadway as near as practicable to the edge of the roadway facing traffic which may approach from the opposite direction.'

The effect of this statute as a penal provision is clear. ³ Its words are plain and unambiguous. ⁴ We are persuaded from a reading of the statute that where sidewalks are not provided pedestrians are required to walk either on the left shoulder or the edge of the left side of the roadway facing oncoming traffic. A pedestrian's failure to exercise one of these two options constitutes a misdemeanor. To this extent appellees' contention is not correct.

However, the effect of this penal statute in a civil tort action has not previously been decided by the appellate courts of Maryland. ⁵ We are not convinced that a pedestrian's violation of this mandatory rule of the road should be regarded as contributory negligence as a matter of law.

The Court of Appeals of Maryland in considering the effect of violations of penal statutes, including the rules of the road, has generally followed the rule that if a violation of a penal statute is the proximate cause of an...