Bratton v. Smith

Finan, J., delivered the opinion of the Court. As the result of a tragic, fatal accident, the widow of the decedent, Raby James Bratton, to her own use and to the use of two surviving infant children (appellants), brought suit against James Claude Smith, Charles Carmen Gamatoria, and the Chesapeake & Potomac Telephone Co. of Maryland (appellees). The following facts gave rise to the action. During the early afternoon of November 4, 1966, the defendant James Claude Smith, a tenant farmer, who from time to time employed the deceased to assist him in general farm work, was engaged with the deceased in moving a farm tractor and a loaded hay wagon from a field on defendant Smith’s farm to a field on Smith’s brother’s farm, located in Harford County, on Maryland Route 543, approximately one-half mile distant.

Smith and the deceased attached the loaded hay wagon to the tractor. The tractor was 7 feet 8 inches high, 7 feet wide and 11 feet 8 inches long. The wagon was 10 feet high from the top of the panel to the ground, 7 feet 1 inch in width and 19 feet 8 inches in length. The overall length of tractor and wagon was 34 feet 4 inches.

The wagon was partially filled with hay. The two units were coupled together by a drawbar. The drawbar plays a vital part ⁶⁹⁸ in the assessment of the quality of the subsequent action of the deceased and we therefore describe it in some detail. It was a detachable device made of smooth steel.

Its top surface was 28 inches in width and 2% inches fore and aft, as it fit between the tractor and the wagon. It had a raised plate in the middle approximately 6 inches wide and %ths of an inch high. The plate was pierced by two bolts side by side and had, in addition, another hole through which a tow-pin was dropped to pull the wagon. If a person chose to stand on the drawbar, astride its center, it would afford a place for each foot on two smooth steel areas 11 inches by 2% inches, or if one chose to stand on either side of the center of the drawbar, discounting the fact that he may be off balance, he would have to place both feet on a bar 11 inches by 2% inches.

The deceased was a man 6 feet tall; however, we do not know the size of his shoe. As the tractor and wagon proceeded toward Smith’s brother’s farm, the deceased chose to stand, balanced or perched on the drawbar between the tractor and the hay wagon. The tractor was equipped with only one seat which was occupied by the defendant' Smith who was operating it. There was ample room in the hay wagon for the deceased had he elected to ride there, but of his own volition he chose the drawbar.

There was evidence that farm hands frequently rode on the drawbar and also that at times they rode in the wagon. This applied at various times to the deceased. The only method of holding on while standing on the drawbar was either to hold onto the sides of the tractor seat or other devices on the tractor, none of which were specifically designed for the purpose of affording a grip. We would further add that the drawbar had some play in it and that changes in acceleration, deceleration, bumps and changes in direction of the rig would all be felt on the drawbar, which was the link between the tractor and the hay wagon and through which was inserted the heavy towing pin that pierced the raised plate on the drawbar and the slotted wagon tongue of the hay wagon. ⁶⁹⁹ As the tractor and hay wagon, which we will call the farm rig, proceeded down Maryland State Route 543 towards the lane which led to Smith’s brother’s farm it was traveling approximately 10 to 12 miles per hour.

For a short distance prior to the accident a Ford panel truck owned by the Telephone Company, and driven by its employee the defendant Gamatoria, had been following the farm rig. At the point of the accident Route 543 is 18 feet wide with no center line or lane markings and it accommodates traffic traveling in both directions. The farm rig was traveling south, and on the westerly side of the highway there is an unimproved shoulder 4 feet in width, and on the easterly side, an unimproved shoulder 5 feet in width. The roadbed proper is macadam surface and was dry at the time of the accident.

Gamatoria was cautiously approaching the farm rig preparing to pass. He could see neither the tractor driver nor anyone else because the hay load on the wagon obstructed his view. As he approached, his way ahead was clear for a distance of one-half mile or more with no oncoming traffic. At this point both the tractor and the hay wagon were “pretty well on the right.” Gamatoria states that under the circumstances he did not think it was necessary for him to blow his horn.

The tractor and wagon were not equipped with any kind of a rear view mirror or directional signals, nor is any required on this type of farm equipment pursuant to Maryland Code (1967 Repl. Vol.), Art. 66%, § 270(b). While in the process of passing, Gamatoria had reached a point where his front wheels were even with the rear wheels of the hay wagon when the tractor made a slight movement to the left, which Smith described as necessary to permit him to see behind without moving the tractor too much. At no time did Gamatoria observe any hand signals.

Smith testified that he made this move in preparation to turn left into the lane leading to his brother’s farm some 300 feet down the highway. He states that at the moment of confrontation, the telephone truck was one-half or two-thirds of the way towards the front of the hay wagon. There is no ⁷⁰⁰ evidence that Smith’s movement caused the tractor or hay wagon to cross the imaginary center line of the highway, but his movement was sufficient to prompt Gamatoria to pull smartly to his left off the side of the road and stop his truck. At the same time Smith’s reaction to this confrontation was to pull abruptly to the right.

After turning to his right Smith proceeded off the traveled portion of the highway, continued off the westerly shoulder, ultimately striking and traversing at an angle an embankment adjoining the westerly shoulder of the road. There was never any physical contact between the vehicles involved. Because of the sudden and unexpected operation of the tractor, the deceased was thrown or hurled from the tractor drawbar onto the westerly shoulder of the highway and was run over by the wheels of the hay wagon as the result of which his skull was crushed. There was some evidence from the blood marks near the highway that he had been dragged 15 to 16 feet.

The decedent’s body came to rest 34 feet from the point where the tractor first left the traveled portion of the highway. There was no conclusive evidence to indicate when or why the deceased became separated from the tractor, that is, whether the fall was occasioned by the abrupt movement of the tractor at the moment of the confrontation with Gamatoria as distinguished from any other movement made by the tractor. Gamatoria testified that after the tractor turned to the right, the farm rig fishtailed down the road. When Gamatoria, after stopping, embarked from his truck and went over to the farm rig, the defendant Smith was shouting excitedly about there being another man on the rig.

Gamatoria looked back and saw Bratton’s body along the highway. At the conclusion of the entire testimony the Circuit Court for Harford County granted a motion for a directed verdict on behalf of the defendants Gamatoria and his employer, the Telephone Company. The jury was instructed by the court to consider the presence or absence of primary negligence on the part of James Claude Smith ⁷⁰¹ and the presence or absence of contributory negligence on the part of the deceased. After deliberating, the jury returned a verdict for defendant Smith.

On appeal the plaintiffs challenged the granting of the directed verdict for Gamatoria and the Telephone Company, on the ground that Gamatoria was guilty of negligence in not sounding his horn when attempting to pass the tractor and hay wagon, relying on their interpretation of Maryland Code (1967 Repl. Yol.), Art. 66V2, § 293. The appellants in appealing the verdict of the jury in favor of the defendant Smith, contend that the court erred in not instructing the jury, (1) that the deceased was entitled to the presumption that he was exercising due care on behalf of his own safety at the time of the accident, and (2) that the defendant Smith should have given an appropriate turn signal when making his movement to the left, as provided by Maryland Code (1967 Repl. Vol.) Art. 66y%, § 228 (a).

For the reasons which we shall hereafter set forth, we think the judgments of the lower court should be affirmed. First, with regard to the directed verdict in favor of the defendants Gamatoria and the Telephone Company, we think the statute does not obligate the overtaking driver to sound his horn in every case but only when it appears reasonably necessary. Smith v. Transport, 211 Md. 134, 139 , 126 A. 2d 584 (1956). Art. 661/2, § 293(a) reads in pertinent part: “The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn, but shall not otherwise use such horn when upon a highway.” As was stated by Judge Dyer in his opinion rendered in support of his denial of the plaintiff’s motion for a new trial: “There is no duty on the part of the overtaking motorist to sound his horn when there is ⁷⁰² no apparent necessity to do so, i.e. when the overtaken vehicle is proceeding in his own lane and leaving sufficient clearance for the overtaking vehicle to pass.

There was no evidence in the present case which would permit reasonable men to conclude that Gamatoria was negligent in not sounding his horn prior to passing Smith.” See also Cantrell v. H. G. Hill Stores (La. App.) 193 So. 389, 392 , (1940), wherein the Court construed a statute similar to ours to be for the