Zeamer v. Reeves

• Decision Date: 13 June 1961
• Docket Number: No. 273,273
• Citation: 225 Md. 526,171 A.2d 488
• Parties: Richard J. ZEAMER et al., etc., v. Harry V. REEVES, Sr., et al.
• Court: Maryland Court of Appeals

Page 526

225 Md. 526

171 A.2d 488

Richard J. ZEAMER et al., etc., v. Harry V. REEVES, Sr., et al.

No. 273.

Court of Appeals of Maryland.

June 13, 1961.

John M. Robb, Cumberland, for appellants.

Thomas N. Berry, Cumberland (Capper, Jenkins & Berry, Walter C. Capper, Cumberland, and Horace P. Whitworth, Jr., Westernport, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.

SYBERT, Judge.

This is a joint tort action brought in the Circuit Court for Allegany County by appellants Jean C. Zeamer, driver of her husband's automobile, for personal injuries; R. Warwick Zeamer, her minor son, a passenger, for personal injuries; and Richard J. Zeamer, her husband, for damages to his automobile and medical expenses for wife and son, against the operator of the other vehicle, Harry V. Reeves, Sr., and his employer, Reeves Motor Co., appellees. Reeves and his employer filed a counter-suit for injuries and vehicle damage and the cases were consolidated for trial before a jury.

The jury found verdicts in favor of the Zeamers in their action and in the counter-suit. Reeves and his employer filed motions for a new trial and for judgment N.O.V. in the original action. The latter motion was granted by the trial court, thus setting aside the verdict for the Zeamers, and judgment was entered in favor of Reeves and his employer. The Zeamers appeal from the judgment. (No motions were filed, nor was an appeal entered in Reeves' counter-suit against the Zeamers.) The issues presented are, first, whether Reeves was guilty, as a matter of law, of any negligence proximately causing or contributing to cause the accident; and second, whether Mrs. Zeamer was guilty of contributory negligence as a matter of law.

At about 4:10 P.M., on September 30, 1959, a 'misty * * * gloomy, rainy day,' Mrs. Zeamer and her son, aged 10, were proceeding east in the family car on McCoole Road, a two-lane macadam highway about 26 feet wide, in Westernport. She wished to turn around and go in a westerly direction in order to let her son out on the proper side of the highway at the home of his music teacher. To accomplish this, she turned right into the parking lot of an A. & P. supermarket, located on the southerly side of the highway, circled through the parking lot and returned to the edge of the highway, where she stopped preparatory to turning left thereon. Mrs. Zeamer testified that in the lot there were cars parked up to the very edge of McCoole Road and that traffic on the eastbound lane of the highway itself was very heavy, 'a constant stream of cars into the A. & P. and some would go ahead and some would go into the A. & P.' The entrance to the parking lot, through which she had just come, was 'a good 50-60 feet' on her left. Looking both to her right and left (she didn't recall which way she looked last) until she 'saw the way was clear,' she then started across the highway, proceeding somewhat diagonally to her left. She said she was almost across the eastbound lane and into the westbound lane when she 'saw a car where there shouldn't have been a car' coming toward her from the left, driven by Reeves, 'a good car's length' away. A collision followed, the left front of Reeves' car striking the side of the Zeamer car at the left front door. After the impact Mrs. Zeamer continued across the road, where she parked, while the Reeves car stopped a few feet from the point of collision. There was conflicting testimony both as to the speed of the vehicles involved and whether at the time of collision the Reeves car had been straddling the broken line in the middle of the highway. A police officer who investigated the accident testified that the Reeves car after the collision was standing with three wheels in the southerly or eastbound lane, but with its left front wheel approximately eighteen inches across the centerline. Reeves testified that he had been driving on his side of the street and that the impact 'knocked me out there'.

In ruling upon the propriety of the granting of a motion for judgment N.O.V., we are required, of course, to review the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. However, a careful review of the evidence in this record requires the conclusion that under applicable authorities Reeves was not guilty as a matter of law of any primary negligence, and thus the trial court properly granted the motion for judgment N.O.V. as to all three appellants.

This is a situation where an unfavored driver entered a favored highway from a private driveway. The statute directly involved here is not the so-called 'boulevard law', Art. 66 1/2, § 233 (Code, 1957), but is § 234 of that Article, which reads:

'The operator of a vehicle entering a paved public highway, which is hereby defined to be a highway having a hard, smooth surface, composed of gravel, shells, crushed stone, paving blocks, asphalt, concrete or other similar substance, from an unpaved public highway, or from a private road or drive, shall come to a full stop upon reaching the intersection and yield the right of way to all vehicles approaching on such paved public highway.'

The same section of the statute (then § 199) was applicable in Shriner v. Mullhausen, 1956, 210 Md. 104, 122 A.2d 570, which we think is controlling in the case before us. In Mullhausen, a driver on the favored highway, moving at or near the speed limit, came over the crest of a hill approximately 225 feet from an unmarked farm driveway and collided with heavy farm machinery entering the highway from the driveway. The Court found the operator of the farm machinery guilty of negligence in not yielding the right of way, even though the car was hidden from his view by the hill when he began to enter the highway, and held there was insufficient evidence to show that the driver of the car was guilty of contributory negligence or negligence under the last clear chance doctrine. The Court ruled that § 199 (now § 234) must be accorded the same interpretation as the 'boulevard law', stating, 210 Md. at page 114, 122 A.2d at page 575:

'The wording in Sections 198 and 207, supra, the boulevard statutes, are practically identical with the wording in Section 199, supra. The many decisions of this Court construing the boulevard statute have become a part of that statute and will continue to be so until changed by the Legislature. Sonnenburg v. Monumental Tours, 198 Md. 227, 233, 81 A.2d 617. Section 199, supra, was adopted by the Legislature by Chapter 1007, Section 179, of the Acts of 1943, approved May 6, 1943. The Legislature, when it passed that Act, must have known how this Court construed the boulevard statute in 1939 in Greenfeld v. Hook, 177 Md. 116, 8 A.2d 888, 136 A.L.R. 1485, and subsequent cases such as Pegelow v. Johnson, 177 Md. 345, 350, 351, 9 A.2d 645; Madge v. Fabrizio, 179 Md. 517, 520, 521, 20 A.2d 172; Rinehart v. Risling, 180 Md. 668, 674, 675, 26 A.2d 411. * * * Therefore, we must give the same interpretation to Section 199, supra, as has been given by this Court to Sections 198 and 207, supra, the boulevard statutes.'

The interpretation and underlying theory of the law in regard to boulevard traffic were enunciated in Greenfeld v. Hook, 1939, 177 Md. 116, 8 A.2d 888, 136 A.L.R. 1485 and have since then been restated many times. At the current term, this Court has again considered the subject at length in Eastern Contractors, Inc. v. State, 1961, 225 Md. 112, 169 A.2d 430; Harper v. Higgs, 1961, 225 Md. 24, 169 A.2d 661, and Green v. Zile, 1961, 225 Md. 339, 170 A.2d 753. Judge Hammond, for the Court in Harper v. Higgs, supra, 225 Md. at page 31, 169 A.2d at page 663, again expressed this Court's view of the basic requirements of the law: 'A motorist must stop before he drives onto a boulevard and yield the right of way to vehicles thereon during their passage past...