Bode v. Carroll - Independent Coal Co.

Johnson, J., delivered the opinion of the Court. On the afternoon of January 10th, 1936, the automobile of Doctor William C. Bode, while being driven by him in an easterly direction on Preston Street in Baltimore City, was in collision at the intersection of Preston and Wolfe streets with a truck which was proceeding in a southerly direction upon Wolfe Street. The truck was owned by the Carroll-Independent Coal Company, and its weight loaded with coal was five tons. Preston Street runs east and west.and intersects Wolfe Street at approximately right angles.

Each of these streets is about forty feet wide, and, as nearly as can be ascertained from the record, the vehicles came together at about the center of the intersection, above which there is an overhead railroad bridge supported by heavy pillars at each of the four comers formed by the intersection. By reason of the impact Dr. Bode’s automobile was damaged and he himself sustained personal injuries, to recover for both of which he instituted suit in the Baltimore City Court. The case was tried before a jury, whose verdict was in favor of the defendant, and from the judgment entered thereon this appeal is taken. The principal contention between the parties hereto relates to the rulings upon the prayers, and is embraced in the third exception.

The plaintiff offered six prayers, all of which, except the second, were granted, while the ⁴⁰⁹ defendant offered five. Its A and B prayers, which were refused, sought a directed verdict, the A prayer being based upon the theory that the plaintiff was, as a matter of law, guilty of negligence which directly contributed to the happening of the accident, while its B prayer was a general demurrer to the evidence. In considering these instructions it becomes necessary to refer briefly to the evidence, much of which produced on behalf of each party is of little aid to us, since the testimony of many of the witnesses was given with reference to locations and designations not contained in the record. However, apart from these, the testimony of the plaintiff, together with that of certain of his witnesses, was, if believed by the jury, sufficient to enable them to find that, on the date of the accident, plaintiff was proceeding in his automobile easterly on Preston Street at a speed of eight or ten miles an hour at the time he arrived at the Wolfe Street intersection.

He continued easterly, and, after passing the building line, looked south on Wolfe Street, which was to his right, for on-coming traffic, and after seeing the way was clear he next looked to his left, which was north, upon Wolfe Street. He then observed the coal truck coming south on Wolfe Street at a fast rate of speed and immediately applied his brakes, stopping his car. When he first observed the coal truck, it was from three to four lengths from him, yet its driver made no effort to stop it, but it continued southerly at the same rate of speed and struck the left front hub cap of his automobile, which at that time was not “quite in the middle” of Wolfe Street. The impact was of such force as to crush his left front fender and headlight and practically demolish the entire front of his automobile.

However, photographs which he exhibited tended to show that his car was in practically a head-on collision, with perhaps slightly more force applied to its left front than to the right. It was also testified that the driver of the truck could, by veering two feet further to the left, have entirely avoided striking the automobile. On cross-examination appellant stated he was driving about twenty ⁴¹⁰ miles per hour when he crossed Gay Street going toward Wolfe, those streets being only a block apart. Upon being asked how near he was to the center of Wolfe Street when he first looked to his. right, he answered, “I could not say that.

I told you as soon as I passed the corner there, I could see down Wolfe Street. I looked down and it was all right, and I looked back, and it was all wrong.” Appellee relies upon his failure to look to his left before arriving approximately at the center of Wolfe Street to support its demurrer prayers, and insists that according to his own statements he is, as a matter of law, guilty of negligence directly contributing to the accident, but the court concludes that these prayers were properly refused, and the evidence was sufficient to require its submission to the jury. Gavin v. Tinkler, 170 Md. 461 , 184 A. 903 , and authorities there cited. The testimony on behalf of the defendant is in sharp conflict with the story detailed by appellant and his witnesses as to how the accident happened, and if believed by the jury would have justified a finding that, when appellant crossed Gay Street, which is one block west of Wolfe Street, he was driving his car at ah excessive rate of speed; that at the Gay Street intersection he came dangerously near striking another automobile entering the, intersection from his right, and avoided it only because its driver had the presence of mind to swing around and prevent being struck; that he kept on going east on Preston Street at the same rate of speed, and when he arrived at Wolfe Street the coal truck was already occupying the intersection, but appellant drove his' car headlong into it, striking its right side with such force as to knock it eight feet to the east, locking its brakes; that when the driver of the coal truck arrived at Preston Street he looked to his right and observed Dr. Bode’s car at the Rutland Avenue and Gay Street intersection, which was a block away.

The driver then put the truck in low gear and continued across Preston Street, and was just changing into high gear when struck by the Bode car. There was also testimony to the effect that the truck was half ⁴¹¹ way across Preston Street when struck, and the automobile hit its right side and damaged its running board and hoist, but there was no damage whatsoever to the front part of the truck. Appellee also exhibited photographs of the truck, which, according to the testimony, was involved in the accident, and these showed it was not damaged in front, but its right side had been hit opposite the rear of the cab, from which point the damage extended toward its rear wheel. Appellant’s second prayer, which was refused, reads as follows: “The jury are instructed that under the law all vehicles shall have the right of way over other vehicles approaching at intersecting roads from the left, and shall give the right of way to those approaching from the right, and if the jury believe from the evidence that the defendant, its agent or servant, on the 10th day of January, 1936, was driving an automobile truck southerly on Wolfe Street, in Baltimore City, approaching from the left, at intersecting streets, and that the automobile which the plaintifE was driving was being driven easterly on Preston Street, at said Wolfe Street, approaching from the right, both streets being public highways of Baltimore City, and if they shall further find that the said defendant, its agent or servant, on the occasion aforesaid, did not give the right of way to the automobile which the plaintiff was driving which was approaching from the right, if they so find, and that the plaintiff while driving said automobile acted with due care and caution immediately preceding the accident, if they shall so find, and that the failure of the said defendant, its agent or servant, to give the right of way caused the collision in this case, then their verdict must be for the plaintiff.” Obviously, this instruction is predicated upon section 209 of article 56 of the Code (Supp. 1935), which among other things provides that “all vehicles shall have the right of way over other vehicles approaching at intersecting public roads from the left, and shall give right of way to those approaching from the right.” This statute has many times recently been before this court, and the ⁴¹² latest expression concerning it is found in Warner v. Markoe, 171 Md. 351 , 189 A. 260, 262 .

Here, as in that case, there is an absence of testimony to show that, at the time and place of the accident, traffic was controlled by officers or signal devices. Hence this general rule expressed in the statute would, under ordinary circumstances., be applicable, but in that opinion Chief Judge Bond, after citing Billotti v. Saval, 165 Md. 563 , 168 A. 890 , stated: “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 léft is likely to be governed accordingly.” In Taxicab Co. v. Ottenritter, 151 Md. 525, 530, 531 , 135 A. 587, 589 , this court was considering an action brought by a truck driver for injuries sustained by him When his truck collided with a taxicab at a street intersection. In that case the cab entered the intersection from the right, but, in the course of that opinion, Judge Urner, speaking for this court, said: “According 'to the testimony of one of his witnesses, the taxicab was still fifty feet or more from the crossing when the plaintiff had proceeded about as far as the middle of the intersection area. The truck was then only about fifteen or twenty feet from the point where it and ⁴¹³ the cab collided. Even if the plaintiff, when at the middle of the crossing, had seen the cab approaching from his right at the distance just mentioned, he was not obliged to anticipate that it would approach and enter the intersection at an unlawful rate of speed. * * * “While it was incumbent upon the plaintiff to respect the rule giving the right of way, at street intersections, to vehicles approaching from the right (Code, art. 56, sec. 209), yet if the way for a safe distance was clear of traffic coming from that direction, he should not judicially be declared negligent in not providing against the possibility of collision with a car which could not come into dangerous proximity to his own, unless it were unlawfully operated.” In the later case of Friedman v. Hendler Creamery Co., 158 Md. 131, 141 , 148 A. 426, 430 , a prayer similar to appellant’s second prayer, except that it embodied the doctrine of last clear chance, was offered by the defendant, and in the course of that opinion Judge Offutt said: “In effect the prayer declares that, if two motor vehicles are approaching over public highways the same intersection, without any reference to the speed or relative position of either, the vehicle approaching from