Williamson Truck Lines, Inc. v. Benjamin

• Decision Date: 13 September 1966
• Docket Number: No. 198,198
• Citation: 222 A.2d 375,244 Md. 1
• Parties: WILLIAMSON TRUCK LINES, INC., et al. v. Henry C. BENJAMIN.
• Court: Maryland Court of Appeals

Page 1

244 Md. 1

222 A.2d 375

WILLIAMSON TRUCK LINES, INC., et al. v. Henry C. BENJAMIN.

No. 198.

Court of Appeals of Maryland.

Sept. 13, 1966.

Hamilton O'Dunne, Baltimore (Patrick A. O'Doherty, Baltimore, on the brief), for appellants.

Thomas V. Friedman, Baltimore (Rosen & Esterson, Baltimore, on the brief), for appellee.

Argued Feb. 9, 1966, Before HAMMOND, HORNEY, OPPENHEIMER, and McWILLIAMS, JJ., and JOHN E. RAINE, Jr., Special Judge.

Reargued June 1, 1966, Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES, and McWILLIAMS, JJ., and JOHN E. RAINE, Jr., Special Judge.

BARNES, Judge.

The appellee, Henry C. Benjamin, was the plaintiff below in an action in the Superior Court of Baltimore City against the Williamson Truck Lines, Inc., owner of a tractor-trailer, and against William B. Sasser (Sasser), its operator, to recover damages for personal injuries to the plaintiff, medical expenses and other losses, and property damage to the plaintiff's automobile resulting from an accident occurring on Maryland Route 3 on February 14, 1963. The action was originally tried before Chief Judge Manley and a jury. After the jury could not agree and was discharged, and after the denial by the lower court of motions of the defendants for a judgment non obstante veredicto, the parties waived a jury trial and the action was, by the agreement of counsel, submitted to the trial judge who had conducted the original jury trial for determination upon the record and testimony previously taken. The trial court rendered a verdict in favor of the plaintiff and against both defendants for $6,500.00. Judgment for this amount was made absolute on May 18, 1964 and the defendants filed a timely appeal from that judgment to this Court.

There is no challenge on the appeal to the amount of the verdict or to the finding of primary negligence of the defendants. The defendants-appellants, however, earnestly contend that the plaintiff-appellee disentitled himself from recovery by his own conduct in that he was guilty of contributory negligence as a matter of law and assumed the very risk which materialized.

The accident occurred between 4:00 and 5:00 A.M. in the morning of February 14, 1963, a good distance south of Glen Burnie in Anne Arundel County on Maryland Route 3. Route 3 is part of a major northsouth highway linking Baltimore with Richmond, Virginia. The accident occurred in the right hand northbound 'slow' lane where the posted speed limit was, at the time of the accident, 60 miles per hour for automobiles and 55 miles per hour for trucks. At this point the median strip between the north and southbound lanes is extremely wide and the southbound lanes (which have no relation to the accident) are not visible to a northbound motorist.

The two northbound lanes are each twelve feet wide. These are separated by a white dashed line and are surfaced with black top macadam. There is a shoulder on both the east side and the west side of this northbound highway consisting of sand and gravel, and varying in width from eight to ten feet. The highway does not curve to the right or to the left for a quarter of a mile south of the scene of the accident, but from that point the road proceeds downhill at a 25 degree grade, bottoms, and then begins a 30 degree incline approximately 500 feet south of the point of impact.

The plaintiff was alone and was operating his 1953 Studebaker northbound in the right hand lane returning from Gambrills in Anne Arundel County to his home in Baltimore City. His automobile was equipped with standard headlights, tail lights and license plate light. These were all lighted and functioning normally at all times material to this case.

While the plaintiff was proceeding uphill toward the scene of the accident, the hood of his automobile, without prior warning, suddenly flew up and buckled over the cab of his Studebaker, obscuring his vision. The plaintiff had never had such trouble with the hood before. He pulled slowly to a stop in the right lane, very close to the shoulder, approximately 500 feet from the bottom of the hill. The plaintiff had traveled Route 2 a number of times before. He knew it was heavily traveled and was a high-speed expressway. He also knew there were shoulders at that point.

As soon as he had stopped, the plaintiff set his emergency brake and alighted from the right door of his automobile onto the shoulder of the road. He was unable to investigate the full width of the shoulder because it was pitch dark and he was afraid of walking into a ditch. He then stood on the shoulder for about one minute observing northbound traffic to be sure that approaching motorists could see his automobile before he ventured out into the highway to lower and secure the hood. He saw two or three northbound automobiles pass safely on the left of his stopped vehicle but he could not say in which lane they had approached it. He then observed a northbound tractor-trailer approach in the right lane, saw it cut over to the left lane when it was better than 100 yards to the rear of his automobile and pass safely by it. From the passing of the automobiles and the tractor-trailer, the plaintiff assumed that his automobile could be seen by approaching motorists and he then began to try to secure the hood. While on the right side of his automobile, he grabbed the top of the hood and used force to free it from where it had buckled over the cab of his vehicle. He then walked to the front and pushed down. Because of the buckle in the hood, the front of the hood would not go down and was far from latching. He then removed his belt and secured one end of the belt to the spring latch on the under side of the hood.

While he was tying the belt to the spring latch, the plaintiff saw for the first time the headlights of the tractor-trailer of Williamson Truck Lines, Inc. approximately one-quarter of a mile away, and heard the roar of the motor. The plaintiff could not determine in which lane this tractor-trailer was moving or its rate of speed. He then bent down in front of his automobile, stuck the other end of his belt through the grill and hooked it in once in an effort to tie the belt. He could hear the motor of the approaching tractor-trailer approaching as he worked. He then raised up to pull the hood down in order to get a better hold on the belt to tie it when he noticed the tractor-trailer a second time. It was then in the right hand lane close behind his automobile and bearing to the left lane. The right front of the tractor-trailer struck the left rear of the plaintiff's automobile, which in turn struck the plaintiff, knocking him to the right shoulder of the road and into what Sasser (called by the plaintiff as a hostile witness) originally called a 'ditch', but later explained was the 'sloping of the bank.' The plaintiff spent less than two minutes in front of his automobile in his attempt to secure the hood.

Sasser, the driver of the tractor-trailer which struck the plaintiff's automobile, testified that he was traveling northbound in the right lane of the highway at a speed of 50 miles per hour when he noticed for the first time the plaintiff's automobile 400 feet ahead. When the tractor-trailer was 200 feet from the plaintiff's vehicle, he cut to the left lane. Sasser testified that the plaintiff's automobile appeared to swerve into the left lane when the tractor-trailer was approaching either a few feet or was two or three automobile lengths away. He did not reduce his speed from the time he first saw the plaintiff's automobile until the time of the impact, nor did he sound the electric or air horns with which the tractor-trailer is equipped. Although there were no other vehicles on the road ahead, Sesser did not continue to watch the vehicle in the road or determine if it was standing or moving at any time.

Corporal Werner, an experienced investigating officer of the Anne Arundel County Police, was the investigating officer. He testified that he received a telephone call in regard to the accident at 4:55 A.M. and arrived at the scene approximately five minutes thereafter. Upon his arrival it was a clear night, and the road was dry. There were no obstacles or curves in the road to obstruct vision for approximately a quarter of a mile approaching the scene northbound. He located the point of impact from the major part of the debris in the right lane of the highway. The automobile of the plaintiff was standing in the right lane with both doors jammed shut. He identified the 120 foot skid marks of the tractortrailer beginning 30 feet before the impact in the slow (right) lane, then into the fast (left) lane and then back into the slow (right) lane again up to the tractor then ahead of the plaintiff's automobile but on the east shoulder of the highway.

It is clear from this evidence that there was sufficient evidence to support a finding that there was primary negligence upon the part of the driver of the tractor-trailer. The appellants (defendants) do not contend in this Court to the contrary. As we have already indicated, the two contentions here are (1) the plaintiff was guilty of contributory negligence as a matter of law and (2) in any event, the plaintiff incurred the risk involved and is barred from recovery by the application of the maxim, volenti non fit injuria. We have concluded that these contentions of the appellants are unsound and that the judgment of the lower court must be affirmed.

(1)

In considering the contention that the plaintiff was guilty of contributory negligence as a matter of law, there are certain well established general principles of law which we should keep in mind. They were recently enunciated by this Court in Wiggins v. State, to Use of Collins, 232 Md. 228, 237, 192 A.2d 515, 520-521 (1963). Judge Horney, for the Court, stated:

'The absence or presence of contributory negligence is generally a question for the jury. Jackson v. Forwood, 186 Md. 379, 47 A.2d 81 (1946)...