Wiggins v. State, Use of Collins

• Decision Date: 11 July 1963
• Docket Number: No. 213,213
• Citation: 192 A.2d 515,232 Md. 228
• Parties: David Llewellyn WIGGINS et ux., Irfan Kipman and Ilham Nami Basay v. STATE of Maryland, Use of Hazel M. COLLINS, etc., et al.
• Court: Maryland Court of Appeals

Page 228

232 Md. 228

192 A.2d 515

David Llewellyn WIGGINS et ux., Irfan Kipman and Ilham Nami Basay v. STATE of Maryland, Use of Hazel M. COLLINS, etc., et al.

No. 213.

Court of Appeals of Maryland.

July 11, 1963.

Herbert F. Murray, Baltimore (Clater W. Smith, Robert E. Powell, and Smith, Somerville & Case, Baltimore, on the brief), for appellants David L. and Elsie H. Wiggins.

Eugene A. Alexander, III, Baltimore (Nevin E. Leese and Rome & Rome, Baltimore, on the brief), for appellants Infan Kipman and Ilham N. Basay.

Richard H. James, Baltimore, for appellants Elsie S. Wiggins and David L. Wiggins.

Francis J. Monahan, Catonsville, for State to use of Hazel M. Collins.

Thomas F. Comber, 3rd, Baltimore (Wm. Pepper Constable and Constable, Alexander & Daneker, Baltimore, on the brief), for appellee Constance Basay.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

These consolidated cases arose out of an accident which occurred on the Baltimore-Washington expressway during a severe snowstorm in January of 1961. As a result of a rear-end collision of a moving automobile with a standing automobile that had been stopped for the purpose of removing ice and snow from the windshield, a pedestrian was killed, passengers in both vehicles were injured and the automobiles were damaged. The appeals present multiple questions pertaining to primary and contributory negligence.

Sometime after midday on the day of the snowstorm, Ilham N. Basay left New York in his automobile to return to the vicinity of Washington. He was accompanied by Constance Basay, his wife, and Irfan Kipman, a friend, who was driving. The automobile was not equipped either with chains or snow tires. It was snowing when they left New York. As they proceeded south, and the storm worsened, they inquired about chains in New Jersey and about snow tires in Delaware, and failing to find either, continued to drive on without them.

On the same day, David L. Wiggins and Elsie S. Wiggins, his wife, who were moving from Maryland to Florida, left Towson in their automobile about four-thirty in the afternoon. Chains had been put on because of the snow. At first, despite the heavy snow and strong wind, visibility was fair. But, after leaving Baltimore the accumulation of ice and snow on the windshield, particularly between the wiper blades, began impeding the motion of the wipers and closing in on the driver's vision, and caused him to stop to clear the windshield. In stopping he pulled over to the right and straddled the foot high ridge left by the snow plows. He had not gone farther off the plowed portion of the highway because of the deep snow and what he thought was a downward slope of the shoulder.

After the Wigginses stopped, the husband, who was driving, set the hand brake, left the motor running and the lights on, and got out. As he began to remove the ice and snow from the windshield, two or three vehicles went by without difficulty: there was considerably more than twelve feet between the left side of the stopped automobile and the ridge of snow on the left side of the southbound lanes of the highway. Another automobile stopped on the right shoulder a short distance ahead of the Wigginses. The driver got out and began walking on the edge of the plowed portion of the highway toward the Wiggins vehicle (for what reason is not apparent from the record). This was Luther G. Collins. David Wiggins first saw the Basay automobile when it was about a hundred yards away and continued to watch it because it had not moved to its left to pass the Wiggins vehicle. When it became certain the oncoming vehicle was not going to turn out and go by, the husband shouted a warning to his wife and stepped backward toward the center of the highway. The Basay automobile struck the Wiggins automobile in the rear and propelled it forward and to the left for about a car's length so that after the collision it was entirely on the plowed surface of the highway along side of the ridge of snow. Collins was found dead in front of the right bumper of the Wiggins automobile.

As they were approaching the scene of the accident, the Basays had run into heavy snow, gusty winds and varying wisibility. At times while driving through drifting snow they could not see anything at all for four or five seconds. Just before the collision occurred, Ilham Basay had seen red lights less than three hundred feet ahead in the slow traffic lane in which they were traveling and had told Kipman that the vehicle in front of them had stopped. But Kipman, because he thought he was a greater distance behind the stopped vehicle than he was, reduced his speed slightly but kept on going through drifting snow without being able to see. When he emerged he saw the stopped vehicle 'right in front' of him. It was then too late to turn left because another vehicle was approaching the Basays from the rear in the fast lane. Instead, Kipman applied his brakes, turned right and skidded into the stopped vehicle. The left front of the Basay automobile struck the right rear of the Wiggins automobile. The Basays came to a stop in the deed snow by the side of the highway. At the time they were closing in on the Wiggins automobile, Constance Basay, who was riding on the front seat, had turned partially around to talk to her husband on the back seat, and she did not see the Wiggins vehicle until after the collision.

There were conflicting versions as to where the Wigginses had stopped. According to David Wiggins, he had pulled to his right and straddled the snow ridge along side of the road. Elsie Wiggins corroborated her husband on this point. But, according to Kipman, the Wiggins automobile was in the slow lane and this was corroborated by Ilham Basay. The written report of the accident made by the trooper (Richard D. Vestrand) from notes he had taken while conducting the investigation tend to also corroborate Kipman in that (according to the report) both operators had stated in the presence of each other at the scene that Wiggins was stopped in the traveled portion of the highway to clean the windshield.

There was also a difference in the recollections of the Wigginses as to the ability to see through the windshield when they stopped to clear it. The husband said that his vision was seriously limited, but the wife stated that her view through the windshield was not completely obscured. The evidence as to whether it was practicable to stop farther off the highway was also contradictory. Instead of driving on with his head out the window until he reached a safer place to stop, David Wiggins stopped where he did because of the deep snow and a downward slope of the shoulder. And Elsie Wiggins stated that they had stopped at what they thought was a suitable place. But the evidence of other witnesses indicates that vehicles equipped with chains could be driven into the snow without getting stuck. The tow truck and police car were driven onto and off the shoulders. And the Collins vehicle (which had stopped on the shoulder) was later backed off of it onto the plowed surface of the highway.

The trooper, after attending to more imperative matters concerning the dead and injured, checked the position of the involved vehicles but he could not determine the point of impact. At the time of the accident the expressway was marked as a snow emergency route with signs warning motorists that there should be no stopping or standing during a snow emergency.

The suit brought by Hazel M. Collins (in the name of the State for her use) as the surviving wife of her deceased husband and as the administratrix of his estate against the Wigginses, Kipman and Ilham Basay resulted in a judgment for the plaintiff in both capacities. The suit brought by Constance Basay against David Wiggms and Kipman resulted in a judgment for the plaintiff. The suit brought by the Wigginses against Kipman and Ilham Basay resulted in a judgment for the defendants. A fourth suit brought by Ilham Basay on behalf of himself and his insurer against David Wiggins resulted in a judgment for the defendant (because the jury found that the negligence of the driver Kipman was imputable to the owner Basay) and no appeal was taken. There are therefore three appeals in the record.

At the trial, the court denied all motions for directed verdicts and submitted the cases to the jury on issues primarily framed to ascertain who was negligent and who was not and (when required) to determine the damages to be assessed. The lower court instructed the jury generally as to the law of negligence in motor vehicle cases and particularly with regard to the negligence of the drivers of the involved vehicles--each of whom claimed that he was free of all negligence but asserted that the other was chargeable with negligence which was the proximate cause of the collision.

With respect to Kipman, the court instructed the jury that (under the provisions of § 211(a), (b) and (e) of Art. 66 1/2) the driver of a motor vehicle on a highway is required to drive at a reasonable and prudent speed consistent with existing conditions; that the driver has a duty to decrease his speed (even though it may then be less than he posted limit) to such extent as may be necessary to avoid colliding with a pedestrian or a vehicle whenever a special hazard exists; and that the driver, because he is bound to anticipate the presence of pedestrian and vehicular traffic on a highway, is required to exercise due care commensurate with the situation whenever his vision is obscured or restricted by the weather or other conditions. Neither Kipman nor Ilham Basay excepted to this part of the instructions though they did interpose objections to other parts of the charge.

With respect to David Wiggins, the court informed the jury that it was unlawful (under § 244(a) of Art. 66 1/2) to stop and leave a motor vehicle standing on the main traveled part of a highway if it was practical...