Brooks v. Childress

Collins, J., delivered the opinion of the Court. These appeals are from judgments for costs in favor of the appellees, defendants below, upon verdicts directed by the court. On October 18, 1948, at about 3:45 P.M., the weather clear and the highways dry, Arthur Stanley Wesley, (Wesley), seventeen years of age, erroneously named in the amended declaration as Stanley Wesley, was operating a 1949 Pontiac Sedan, owned by his father, Arthur Wesley, one of the appellees, in a southerly direction on U. S. Route 40, a dual lane boulevard highway, a short distance from Elkton, Maryland. Each lane of this highway was twenty-two feet in width and separated by a grass plot forty feet wide.

At the intersection of the Nottingham Road and Route 40 there was a cross-over or paved lane thirty feet in width traversing the grass plot and connecting the north and south bound lanes. ⁴ The “cross-over” allows traffic in the southerly lane of Route 40 to cross the grass plot and the north bound lane and enter Nottingham Road. As Wesley approached the Nottingham Road, with seven passengers in the car with him, he turned left into this cross-over leaving the south bound lane of Route 40 with the purpose of entering Nottingham Road and stopped in the cross-over very close to the north bound lane. In crossing the northbound lane he collided with a tractor-trailer of the Childress Transfer Company, (Childress), one of the appellees. Three of the eight occupants of the Wesley car, including the driver, were instantly killed and four others died shortly afterwards.

The only survivor was a two-year old boy, who was rendered unconscious. From directed verdicts for the appellees, in a suit in tort, the appellant appeals. Of course, therefore, we should resolve all conflicts in the evidence in favor of the appellant and assume the truth of all evidence and all inferences which may be naturally and legitimately deduced therefrom which tend to support appellants’ claim. Walter Edward Lawrence, a witness produced by the appellants, testified that he was driving his truck north on Routh 40 for the purpose of picking up his two children at the Nottingham Road.

The children were in the middle of the dual highway between the two lanes on the grass plot. Before turning left into the cross-over, he opened the door of his truck and looked south on Route 40 and saw a vehicle which proved to be the Childress tractor-trailer back of him about four-tenths of a mile. He determined that he had plenty of time to cross the highway. He turned left into the intersection and stopped with the back end of his truck just clearing the north bound lane of Route 40.

At that time Wesley stopped his car directly opposite the door of the truck with his front wheels very near the north bound lane. As Wesley stopped he turned his head and looked at Mr. Lawrence. The truck, being high, he could see Wesley’s head and face because they were at a lower level. Lawrence said at that time the tractor-trailer was two- ⁵ tenths of a mile from him.

Wesley then took his gaze off of Lawrence and pulled out to cross the highway. As Wesley started to cross the highway Lawrence diverted his glance from him to his children. Wesley crossed to the other side of the highway and Lawrence then heard the impact caused by the collision between the tractor-trailer and the Wesley automobile. Mr. Lawrence said: “The truck was then approaching there, it went out of my vision, and it looked as though to me that they both tried to get out of one another’s way, the truck pulled around and Wesley pulled around and they had the impact, and the accident occurred in the back of my truck, and I didn’t see the impact.” Wesley had passed the middle of the highway before the impact.

The tractor-trailer was on the right side of the highway. Mr. Lawrence said that he had been- operating a motor vehicle for twenty years and he could not estimate the speed of the tractor-trailer. He said: “I saw the truck approaching here (indicating) as his car passed the center and I looked out my other window and saw parts of the car and the truck going through the guard rail and rolled over.” The tractor-trailer, weighing more than 13 tons and loaded with bales of cloth, coming slightly down grade, skidded approximately fifty feet before striking the Wesley vehicle. After the collision the tractor-trailer continued slightly down grade for a distance of 150 feet, pushed the passenger car against a guard rail and knocked over seven or eight steel guard posts and stopped overturned in a field to the east of the north bound lane.

The Wesley car was knocked to pieces and scattered over an area of seventy-five feet. The appellants here, of course, are not affected by the contributory negligence of Wesley and the doctrine of contributory negligence is not applicable in this case. The doctrine of last clear chance does not apply in this case for that doctrine is invoked only to avoid the bar of contributory negligence Where there is no contributory negligence as in the case at bar the doctrine of ⁶ last clear chance of course does not apply. Legum v. State, 167 Md. 339, 355 , 173 A. 565 ; State v. B. & O. R. R. Co., 196 Md. 459, 464 , 77 A. 2d 2 , 5 and cases there cited; Balto.

Transit Co. v. O’Donovan, 197 Md. 274, 278-279 , 78 A. 2d 647, 649 . In the case of Shedlock v. Marshall, 186 Md. 218 , 46 A. 2d 349 , Miller was a passenger in Shedlock’s automobile which was the unfavored car. Marshall’s tractor-trailer was the favored vehicle. In that case it is said at page 237: “Miller, of course, could not be bound by Shedlock’s contributory negligence, and if Shedlock and Marshall were both negligent and the negligence of both contributed to the accident, he (Miller) might have gotten a verdict' against both.

Shedlock’s negligence had to be the proximate cause of the accident before Marshall was absolved.” The question, therefore, before this Court in the Childress case is whether, assuming the truth of the evidence and inferences which may be naturally and legitimately deduced therefrom which tend to support the appellant’s claim, the negligence of Arthur Stanley Wesley was the proximate cause of the accident. In Sun Cab Co. v. Faulkner, 163 Md. 477 , 163 A. 194 , the Sun Cab had the green light before it, giving it the right of way. A Yellow Cab carrying an injured man, at an officer’s instruction, went through the red light and collided with the Sun Cab. In that case Chief Judge Bond said at pages 479 and 480: “But taking it as proved that there was negligence in the rate of speed in this instance, that negligence, in the approach, must be found to have been the cause of the collision, or there can be no legal responsibility for it on the Sun Company’s part.

The principal cause was, obviously, the unexpected coming through of the Yellow Cab, in violation of the right of way. Its doing so was not a consequence of any speed maintained by the Sun cab. Whatever other consequences the speed might have threatened, it could not be said that it threatened to cause a collision with a cab so coming through. On the contrary, the situation created by it, if left to itself, with all its natural con ⁷ sequences, would have been a safe one; and it was only by the intervention of the independent agency that the collision resulted, an independent agency not set in motion or at all influenced by the driving of the Sun cab.

That being being true, the assumed negligence of the driver of that cab could not be treated as a proximate, legal cause of the accident and injury.” In this case the appellant seems to rely on the speed of the tractor-trailer as proof of negligence. The speed limit was fifty-five miles an hour and there is no evidence that Childress was exceeding that limit. To show speed, appellant presents skid marks fifty feet in length before the impact, the tearing down of steel guard posts by the tractor-trailer after the accident and the complete destruction of the passenger car. The evidence shows that this truck weighed more than 13 tons and contained a load of bales of cloth.

No evidence was produced to show that the skid marks indicated excessive speed. No evidence was introduced to show the type of brakes on the truck, the condition of the road surface other than it was dry, the condition of the treads on the tires of the truck, or the reaction time of the driver. The driver here had no reason to believe that Wesley would disregard the boulevard law and pull out in the road in front of him. Of course, when a heavily loaded tractor-trailer strikes an automobile, the impact naturally causes much destruction.

Negligence cannot be proven from testimony as to what happened after the accident. There is no evidence as to what occurred in the tractor after the collision. The truck driver may have been thrown from his position back of the wheel, with no control of the operation of the truck. The effect of the impact might have been to accelerate its speed by jamming the accelerator to the floor of the vehicle.

As Childress points out, it is not difficult to understand how several steel guard posts 125 feet away from the collision could have been destroyed by the tractor-trailer weighing over 13 tons and heavily loaded, which was not being steered or controlled in any manner by its driver. There is no ⁸ evidence in this case as to the operation of the truck before, during or after the collision. Of course, speculation and conjecture are not sufficient to show negligence. Rules as to collisions between motor vehicles at the intersections of through highways, as in the instant case, under Code 1947 Supplement, Article 66 ½, Sections 178 and 187, have been clearly and definitely stated and applied in many cases by this Court.

The purpose of these statutes was clearly expressed in the case of Greenfeld v. Hook, 177 Md. 116 at page 125, 8 A. 2d 888 at page 892, 136 A. L. R. 1485, where it was said by Judge Offutt: “That statute imposes, upon one driving an automobile along or on a highway intersecting such a stop street, arterial highway, or boulevard, the duty of coming to a complete stop before entering the favored highway, and of yielding the right of way to all vehicles travelling thereon. The two duties, of stopping and of yielding the right of way, are correlated and coordinate. That of stopping is to give force and practicability to that of yielding the right of way, by requiring the inhibited traveller, before entering the intersection, to stop in order that he may ascertain whether traffic is approaching over and along the favored highway. The rule could have no other rational purpose, for unless the inhibited traveller yields the right of way to traffic on the stop street, the mere act of stopping would be idle, useless, and futile.

The obvious and essential purpose of such rules is to accelerate the flow of traffic over through highways by permitting travellers thereon to proceed within lawful speed limits without interruption. That purpose would be completely frustrated if such travellers were required to slow down at every intersecting highway, and the vast sums which have been spent in their construction in an effort to accomodate the great volume of automobile traffic, which is so indispensable a part of modern life, would be largely wasted. On the other hand the safety of the travelling public demands that the rules defining the relative rights of travellers on through highways and on highways in ⁹ tersecting them to clear, unmistakeable, and definite. If the duty of stopping and of yielding right of way is positive and inflexible, the inhibited traveller may know that he violates it at his risk, while the traveller on the favored highway may know that he may safely exercise the privilege of uninterrupted travel thereon, which the statute gives.

If, however, the relative rights of travellers on the two types of highway are held to depend upon nice calculations of speed, time, and distance, the rule would encourage recklessness and the privilege of uninterrupted travel would mean little more than the privilege of having a jury guess in the event of a collision whose guess was wrong. If the traveller on a stop street were required to slow down and bring his car into control at every intersection there would be no perceptible difference between such a street and any other street on which traffic is controlled by the general rules of the road.” This was quoted in the case of Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , at pages 178 and 179, 49 A, 2d 537. In Madge v. Fabrizio, 179 Md. 517 , 20 A. 2d 172 , the beer truck was the favored vehicle on a favored way or boulevard. The Barth automobile was the unfavored vehicle and in crossing the boulevard there was a collision between these two vehicles.

It was said in that case at page 523: “Appellant also makes the contention that because there is some testimony to the effect that the speed of the loaded beer truck exceeded the maximum allowed by law, this fact is sufficient to require the case to be submitted to the jury as showing negligence on the part of the truck driver, but this contention entirely ignores the fact that the proximate cause of the accident was not speed on the part of the truck, but the entry upon the boulevard by Barth in the path of the truck.” In Rinehart v. Risling, 180 Md. 668 , at page 675, 26 A. 2d 411 , at page 414, this Court said in holding that the demurrer prayer of the owner of the truck, the favored vehicle, should have been granted: “There is no evidence that this truck driver was not observing ¹⁰ the road ahead of him. It is admitted that he was on the right side of the road. * * * There is no evidence of any excessive speed on the part of the truck driver. * * * The driver of the truck, being the favored driver, had the right to assume that the unfavored car entering the boulevard would respect the provisions of the statute.” In Balto. Transit Co. v. O’Donovan, 197 Md. 274, 277 , 78 Atl. 2nd 647, 648, an automobile pulled out from the grass plot between the driveways of a boulevard in front of a bus, the favored vehicle. This Court said in that case: “The rules applicable to collisions between motor vehicles at the intersection of through highways, under Code 1947 Supp., Article 66%, Sections 178 and 187, have been clearly stated and applied in recent cases.

The cases were carefully reviewed in Shedlock v. Marshall, 186 Md. 218 , 46 A. 2d 349 . In that case we stressed the duty of the unfavored driver not only to stop but to yield the right of way to the favored vehicle during its entire passage over the intersection. In Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , 49 A. 2d 537 , where the suit was by a passenger in the unfavored vehicle, the emphasis was placed upon the right of the favored vehicle to proceed upon the assumption that the unfavored vehicle would stop and yield the right of way. We held that the proximate cause of the accident was the entry of the unfavored vehicle rather than the speed of the favored one.

Since the primary purpose of the statute is to speed the huge and growing volume of traffic, it would be quite impractical to require the operators of vehicles on the favored way to anticipate infractions of the peremptory command, and reduce speed at every intersection. Blinder v. Monaghan, 171 Md. 77, 83 , 188 A. 31 ; Madge v. Fabrizio, 179 Md. 517, 520 , 20 A. 2d 172 . In the instant case we think the bus driver had the right to assume that the other vehicle, in a place of safety by the grass plot, would remain there and yield the right of way.” Applying the law, hereinbefore so plainly stated and often repeated by this Court, to the facts of this case ¹¹ and all inferences legally deducible therefrom in a light most favorable to the appellant, it is evident that the speed of the Childress tractor-trailer was not the proximate cause of this accident and its demurrer prayer was properly granted. To have submitted this case to the jury would have required “nice calculations of speed, time, and distance,” [Greenfeld v. Hook, supra,] which is forbidden in boulevard cases where the unfavored vehicle fails to give the right of way.

The amended declaration alleged against the father, Arthur Wesley: “Defendant, Arthur Wesley, through Stanley Wesley, his son and agent, acting with his permission and in his behalf, was negligent in the operation of his vehicle at the time of the accident as follows: * * The appellant admits that there was not sufficient evidence for the jury to find that the driver of the automobile was acting as agent for Arthur Wesley and with his permission and in his behalf. Code, 1947 Supplement, Article 66V2,