Clemons v. E. & O. BULLOCK, INC.

Smith, J., delivered the opinion of the Court. This suit arises as the result of a collision at the intersection of University Boulevard and Adelphi Road near the University of Maryland in Prince George’s County. The automobile owned by Oliver Walter Clemons, Sr. (Clemons, Sr.), and operated by Oliver Walter Clemons, Jr. (Clentons, Jr.), was proceeding west on University Boulevard. It was occupied by Clemons, Jr.; Clemons, Sr.; Mrs. Clemons, Sr.; Eileen Shirley Clemons; the fiancee of Clemons, Jr., Mary Lorraine Heubschman; and a friend Sally Ann Matthews.

It turned left at Adelphi Road. A collision ensued between it and a dump truck operated by James Queen (Queen) and owned by E- & O. Bullock, Inc. (Bullock). The dump truck was proceeding east. William Queen, son of Queen, was a passenger in the dump truck.

Mrs. Clemons, Sr. and Miss Heubschman were killed. The dump truck was hauling material for Contee Sand and Gravel Co., Inc. (Contee). ⁵⁸⁹ Suits were brought by Clemons, Sr.; Clemons, Jr.; and Eileen Shirley Clemons against Bullock, Contee and Queen. Third party claims were brought by Queen and Bullock against Clemons, Jr. in the Clemons, Sr. and Eileen Shirley Clemons cases. Special pleas were filed in those cases reciting that joint tort feasor releases had been consummated by which claims of Clemons, Sr. and Eileen Shirley Clemons against Clemons, Jr. had been settled, reserving rights of those parties against other persons.

Queen brought suit against Clemons, Sr. and Clemons, Jr. for the medical expenses and loss of services of his son, William Queen, a passenger in the dump truck, and on his own behalf and to the use of Glens Falls Insurance Company for his own injuries. Suit was also brought against Clemons, Jr. and Clemons, Sr. for the personal injuries of William Queen. A directed verdict was entered in favor of Contee in all cases. A verdict in favor of the defendants Bullock and Queen was returned by the jury in the cases of Clemons, Sr. and Clemons, Jr. A verdict in favor of the defendants Clemons, Sr. and Clemons, Jr. was returned by the jury in the suits brought by Queen.

The jury returned a verdict of $500 in favor of William Queen against the defendants Clemons, Sr. and Clemons, Jr. The jury returned a verdict of $3000 in favor of Eileen Shirley Clemons against the defendants Bullock and Queen. In that case the jury also returned a verdict in favor of the third party defendant Clemons, Jr. in the third party claims of Bullock and Queen. Appeals were filed on behalf of Clemons, Sr. and Eileen Shirley Clemons as intervening plaintiffs in their case against Bullock, Contee and Queen. A cross-appeal was filed in that case on behalf of Bullock and Queen as defendants and third party plaintiffs to the appeal of Eileen Shirley Clemons as intervening plaintiff.

Clemons, Jr. appealed in his case against Bullock, Contee and Queen. Queen appealed in his case against the Clemons’. Clemons, Sr: and Clemons, Jr. appealed in the case of William Queen against them. Bullock and Queen as defendants and third party plaintiffs appealed in the case of Eileen Shirley Clemons against them. ⁵⁹⁰ University Boulevard is a divided highway at this intersection.

There is a traffic signal. Clemons, Jr. testified that he made the turn on a green light, tie saw a car in the right hand lane of the eastbound lane. It came to a full stop. Therefore, Clemons, Jr. shifted gears and proceeded south on Adelphi Road.

He did not see the dump truck. Clemons, Sr. said the traffic signal at Adelphi Road was green. He saw the traffic light on University Boulevard go from green to amber. It was amber when it disappeared from his line of vision.

Glen W. Howard, a disinterested witness, was operating a car immediately behind the Clemons car. He had followed the Clemons automobile for a mile or mile and a half. When Clemons went through the light at the intersection it was green. He saw it turn to amber.

He stated that the Queen dump truck came through a red light to strike the Clemons vehicle. Queen claimed that he had been in the right hand or slow lane of University Boulevard, that vehicles were turning from that lane into Adelphi Road, that he changed to the fast lane, looked at the light, found it to be green,- and when he was going through “like a flash this car was right in front of me.” He said when he last observed the light it was green and that he was not quite a truck’s length from it when he observed it. He placed his speed at about thirty miles an hour. A State Roads Commission employee testified that the traffic lights at this intersection are green for both westbound and eastbound traffic on University Boulevard at the same time, A similar situation prevails with reference to yellow and red.

The yellow or amber light on that day was five seconds in duration. The green and amber do not show at the same time. There is a solid amber light with no overlap in the signals. I. Clemons, Sr. and Clemons, Jr. except to the instruction wherein the trial judge charged the jury: . “You are further instructed that even if you should find that Queen’s truck entered the intersection on a red light, and you shall further find that his truck was ⁵⁹¹ so close to the Clemons’ car that to cross in front of the truck would make an accident inevitable, then the fact that Oliver W. Clemons, Jr. did not see the truck and attempted to cross the eastbound lanes of Route 193 to complete his turn, would constitute negligence on his part.

And, if you find that this negligence directly contributed to the accident, your verdict must be in favor of the defendant in his case and in the case of his father Oliver W. Clemons, Sr. “The point that the Court wishes to further instruct you on is that Oliver W. Clemons, Jr., even though this light was red for James Queen, had no right to attempt to cross the eastbound lanes in blind indifference to the approaching truck and if he knew or should have known that his progress would endanger him and others, he must use reasonable care to avoid injury to himself and others including Queen, the driver of the truck. That is to say, further, that even if he had the right of way, you find that the light was red for the truck, this does not mean that he could simply proceed across the intersection with blind indifference; he must proceed as a reasonable prudent man would have under all of the circumstances that you find as a fact existed in the case. If you find from all of the evidence that the failure of Oliver W. Clemons, Jr. to see the defendant’s truck in his attempt to cross in front of it were actions on his part which directly contrilmted to the accident, you must find your verdict in favor of the defendant in his case and in the case of his father Oliver W. Clemons, Sr., and even if you shall find any negligence on the part of Queen contributing to the accident, there can be in any negligence case more than one proximate cause of an accident; that is to state there may be two proximate causes of the accident, and you would have a right to find that Mr. Queen may have been negligent and his negligence contributed directly to the happening of the accident, and at the same time Oliver W. Clemons, Jr. was negligent and that his negligence may have contributed ⁵⁹² directly to the accident. It is up to you as the jury to determine what facts you are to believe in this case and come to a decision within the law as I have instructed you, within the framework of the law as I have instructed you. “Now, if you find from the evidence in this case that the sole proximate cause of the accident involved herein was due to the negligence of James Queen, the driver of the dump truck, then you are instructed to return a verdict in favor of Oliver W. Clemons, Jr., Oliver W. Clemons, Sr., and Eileen Clemons, that is to say, that if you find that James Queen was the only party guilty of negligence and that Oliver W. Clemons, Jr. was not guilty of any negligence which directly contributed to the accident, but James Queen’s negligence was the sole cause of the accident, then your verdict should be for Oliver W. Clemons, Jr., Oliver W. Clemons, Sr. and Eileen Clemons, and also such a finding would necessarily bar James Queen from recovering in his suit.” (Emphasis supplied.) Exceptions were duly noted at the time, which exceptions were overruled on the strength of Racine v. Wheeler, 245 Md. 139, 144 , 225 A. 2d 444, 446 (1967).

This was a boulevard case in which it was contended the trial judge there committed reversible error when he instructed the jury: 1. “However, if you find that the defendant stopped her vehicle in the crossover, but in such a position that the rear of her automobile extended into the travel portion of Route 40, and that the prior movement of her automobile was not a producing cause of the accident, then there was a duty imposed on the plaintiff to keep a reasonable lookout and to exercise reasonable and ordinary care and caution for his own safety. 2. “And if you further find that the plaintiff saw, or by the exercise of ordinary care, should have seen the rear of the defendant’s vehicle projecting into his lane of traffic, and that the plaintiff failed to move ⁵⁹³ from his path, when in the exercise of reasonable care he had the opportunity to do so, if the jury so finds, and he failed to do so, thereby striking the defendant’s automobile, then you should find the plaintiff guilty of negligence directly contributing to the happening of the accident, and your verdict should be for the defendant.” We upheld both instructions. With reference to the first instruction we held there was evidence of contributory negligence. We stated at pages 144 and 145 : “Since the jury is free to believe only a portion of the evidence of each side the synthesis apparently accomplished by the jury is simply a manifestation of its obvious function. Maryland Chemical Company v. Monn, 241 Md. 127 , 215 A. 2d 731 (1966). “The comment of Chief Judge Sobeloff in Rea Construction Co. v. Robey, 204 Md. 94, 100 , 102 A. 2d 745 (1954), is especially pertinent to the factual conflict here present: “ ‘When the interplay of circumstances is susceptible of different interpretations by rational minds, the problem is essentially one for the jury; the trial judge is not permitted to transform it into a question of law for his own determination.

The choice between conflicting facts and the weighing and assessing of competing inferences radiating therefrom is the jury’s province.’ ” Relative to the second instruction, we said, at page 145: “We do not think the disposition of this appeal requires an historical review of the Boulevard Rule in respect of the rights and duties of the favored driver. * * * As Judge Prescott (later Chief Judge), writing for the majority in Brown v. Ellis, 236 Md. 487, 495 , 204 A. 2d 526 (1964) said: “ ‘The question in regard to contributory negligence presents a different picture. Appellant contends that he is within the boulevard rule on this ⁵⁹⁴ issue as a matter of law. There can be little doubt that the decisions of this Court have jealously guarded and upheld the favored driver’s right of way in boulevard cases. In fact, the Maryland decisions seem to go as far as any of our sister States in upholding such rights of way.

However, no decision of this Court has ever stated that such a favored driver has a complete and absolute right of way which relieves him of all duty to exercise reasonable and ordinary care for his own safety. On the contrary, this Court, as early as 1939, stated in Greenfeld v. Hook, 177 Md. 116, that “the traveller on the favored highway [does not have] an absolute, unqualified, and complete right of way, at all times and under all circumstances, over persons who have lawfully entered the street, nor [can he] proceed thereon in blind indifference to the danger to which his progress may expose others,” but, “where a traveller on a favored highway knows or should know that his progress will endanger a traveller entering the same from a restricted highway, he must exercise reasonable care to avoid injuring him.” ’ ” In Racine v. Wheeler, supra, the instruction presupposed that the defendant’s vehicle had lawfully entered the intersection. In this case the instruction presupposes an unlawful entry on the part of Queen into the intersection. We think this case is analogous to Eastern Contractors v. State, 225 Md. 112 , 169 A. 2d 430 (1961).

This was a traffic light case. Judge Henderson (later Chief Judge) speaking for this Court said at pages 120 and 121: “But instead of instructing the jury that the case turned on who had the right of way, the trial court gave the following instruction “ ‘The Court further instructs you, at the request of Buckley & Company, that an operator of a vehide, even though given the green or go- signal at "an intersection,- is required-to üse due-care and cau ⁵⁹⁵ tion to see that traffic in the intersection is such that he can proceed with safety and he must regard and heed traffic conditions, even though he has the green light. Therefore, even if you find it a fact that the Eastern Contractors’ vehicle had the green light, and you also find that the operator thereof, Preston Jeffers, failed to observe the conditions of the traffic about him, and did not pay proper attention to approaching or crossing vehicles, or in any other respect failed to use due care, then your verdict must be against Eastern Contractors and Preston Jeffers, because you would have determined that he was negligent in the operation of his truck.’ “It is perfectly clear, as the first sentence of the instruction stales, that a driver having a green light in his favor cannot ignore traffic in the intersection when the light changes. “But the