Dix v. Spampinato

Menchine, J., delivered the opinion of the Court. Arnita Denise- Dix (hereinafter referred to either as appellant or pedestrian) was a 1971 graduate of Western High School in Baltimore City, who had earned a scholarship to Bentley College in Waltham, Massachusetts. She had gained employment for the summer months of 1971 as a nurse’s aide in the Bent Nursing Home, located on the west side of Reisterstown Road in Reisterstown, Maryland. On August 27, 1971, at about 3:30 p.m., she alighted from a public transportation bus on the east side of the Reisterstown Road at a point south of the place of her employment.

The bus stopped somewhat north of the ordinary bus stop because of puddles of water left in the road at that place. At that point Reisterstown Road is a four lane dual highway, with two marked lanes northbound and two marked lanes southbound, divided by double line yellow markings. There is no grass or concrete median strip. Each lane is about 10 feet wide.

Very seriously injured while attempting to cross the highway, pedestrian and her father, as next friend during a period of infancy, brought suits in the Circuit Court for Baltimore County for damages for personal injury and for medical and hospital expenses against Patricia Mae Spampinato, operator of a motor vehicle that struck her, and against Jeanette Horak, operator of a vehicle that had come to a stop upon the highway to permit her to pass. The crossing point was between intersections. There was a marked crosswalk to accommodate the passage of pedestrians about 200 feet south of the accident scene. At the con ⁸³ elusion of the plaintiffs’ cases the trial judge granted separate motions for directed verdict filed by the defendants.

From the judgments against them thereafter extended Arnita Denise Dix and her father have appealed to this Court. The duty of an appellate court on appeal in such circumstances was clearly and succinctly stated in Campbell v. Jenifer, 222 Md. 106, 110 , 159 A. 2d 353 , 355: “In a case such as this, where the trial court has granted either a motion for a directed verdict, or a motion for a judgment n.o.v., this Court must, in determining whether the ruling was proper, resolve all conflicts in the evidence in favor of the plaintiff and assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support the right of the plaintiff to recover. Or, as it is often stated, the evidence must be considered in the light most favorable to the plaintiff.” The Facts Pedestrian’s own description of her crossing was as follows: “When it [northbound traffic] was clear I crossed to the centerline, I looked up, and the driver [Jeanette Horak] of the [Volkswagen] bus waved to me to go across. I looked up to make sure that the bus had come to a stop, and then I started to walk out from the bus. * * * She [operator of the Volkswagen] looked at her hand, and she waved for me to cross the street. * * * [She] moved it from left to right. * * * the next thing I remember I was on the ground.” The record shows the following inquiries by and her responses to, the trial court: “THE COURT: Young lady, did you ever see the ⁸⁴ vehicle which you now claim struck you?

THE WITNESS: No, sir. THE COURT: Was there anything to prevent you from seeing it if you had looked? THE WITNESS: Well, while I was standing on the centerline the Volkswagen ' bus — THE COURT: Yes. But after you started to move forward you would have to pass in front of the Volkswagen before you got to the next traffic lane, right?

THE WITNESS: Yes, sir. THE COURT: As you were passing in front of the Volkswagen bus did you look to your right to see whether or not traffic was proceeding south in the other lane of traffic? THE WITNESS: I don’t remember, judge. I remember walking out from the centerline in front of the bus, and that’s all.

The Volkswagen (hereinafter called “standing vehicle”) was being operated by Jeanette Horak. The pedestrian walked in front of and continued past the standing vehicle, and was struck by a Buick automobile (hereinafter called “moving vehicle”) being operated by Patricia Mae Spampinato. The pedestrian, 5 feet 3 inches tall, was unable to see over the top of the standing vehicle. The following excerpts from the testimony of the operator of the moving vehicle, called as a witness by appellant, give her version of the incident: “Q At that time can you recall what the weather conditions were?

A Yes, sir, it was raining very hard. ⁸⁵ Q And can you recall passing Caraway Road southbound in the right-hand lane? A Yes, sir. Q And what did you observe next? A Well, when I was riding down Reisterstown Road, and I came to Caraway Road, Fm not sure of the distance, but in the left-hand side, the left lane was a Volkswagen bus, I didn’t see her traveling, I just saw her stopped there.

Q And when you made that observation what action did you take? A Well, I was wondering why she had, why it was there, why she had stopped, there’s no red light, there’s no way to turn, and with it raining, the first thing that came to my mind was that she had stalled or — Q Could you give us your approximate speed at that time, if you can recall? A Yes, sir. I went, I was very, I was wondering why she was there, so immediately I looked down, which my husband has told me to do so many times — on the left-hand side there are the red lights for generators, and things like that, that go on, which has happened to me before, because — so I looked there to see if everything, you know, I looked down to see if everything was okay, and that’s when I happened to notice how fast I was going.

Q And how fast were you going? A It was between twenty and twenty-five. Q What I was getting at was whether the fact that this Volkswagen bus was stopped in the left-hand lane, whether that caused you to look down at the instruments on your dashboard? A Sure, I was very conscious, I was wondering — ⁸⁶ you know, you see a car stopped in the left lane, you wonder why.

But I had cars behind me, and I never thought ever that there was anybody there. Q How far behind you were the cars following you, if you can recall? A It wasn’t bumper-to-bumper. When you look out it’s a busy, you know, highway, but when you look out there are cars behind you.

I guess a couple car lengths, I guess it would be something like that; it wasn’t, you know, bumper-to-bumper. Q And then what happened next, Mrs. Spampinato? A Well, I passed the Volkswagen bus, and as I did I heard a thump. And I said, oh my goodness, I wonder what that was or what that is?

And I looked in my mirror, and the traffic had stopped, of course I stopped right away. And I was afraid to stay in the middle of the road, so I backed back a little and got, and I was in front of McDonald’s. And I sat there, and got out, that’s where I parked my car, and then I got out, and then that’s when I saw Miss Dix. Q Her body was in the left lane?

A Yes, sir.” These excerpts from the record depict most favorably the testimony of an eyewitness called to the stand by appellant: “Q And you say you saw a lady? A Yes. ⁸⁷ Q What did you observe after that? A She was walking north on the side of the road, and began to cross into the highway, and she crossed to the center strip of Reisterstown Road. Q Yes?

A And then she stood there. Q What did you observe after that, Mrs. Spurrier? A I glanced to my left, to McDonald’s, and when I looked back there was a Volkswagen bus parked at the centerline. Q In what direction was the Volkswagen bus facing?

A South. Q Yes? A And the girl was still on the center strips. Q And what did you see next?

A I saw the girl look towards the Volkswagen bus, and then she started to move, to leave where she was standing, and I saw a white car pass by, and after the white car passed by I saw the girl rolling in the road. Q Let me go back a step. The Volkswagen bus was stopped in which lane, southbound lane, if you can remember? A The left.

Q The left-hand lane? A Yes. Q With reference to that lane, can you recall observing which lane the lady was rolling in after the white car passed by? A She was in the left lane.

Q Her body was in the left lane? A Yes. ⁸⁸ Q Could you see, from where you were seated in your car could you see any point of contact between the lady’s body and the white car that passed by? A I didn’t see it when they came in contact, no. Q Would you describe for the jury the manner in which the lady crossed the highway to the centerline and also the manner in which she moved away from the centerline after looking up at the Volkswagen bus?

A From the time she left the side of the road she was walking on an angle towards the yellow strip. Q After she got to the yellow strip, and you say she looked up at the Volkswagen bus and then started again, what direction was she walking in? A I couldn’t be positive of that; she just sort of took off, and I couldn’t say what angle. THE COURT: Would you tell the jury, please, Mrs. Spurrier, precisely what do you mean by she took off?

THE WITNESS: Well, in the beginning she was walking slow, and when she, as I say, took off, she wasn’t walking slow, she started out fast. Q The second time, Mrs. Spurrier when you say she started out fast, was she walking or was she running, as far as you could see? A As far as I could see, she wasn’t walking but she wasn’t running. Q Could you describe the weather conditions at the time, please.

A Yes, it was raining very bad. ⁸⁹ Q Could you describe the visibility at the time. A I’d say it was poor visibility. Q * * * Can you describe for me as best you can in as much detail as you can the manner in which this young lady was proceeding across the southbound lanes? A Do you mean after she left the center?

Q Right after she left the centerline. A I don’t know how to explain it. THE COURT: I would gather from what Mrs. Spurrier has told us that it was something between a walk and a run. Is that right?

THE WITNESS: Yes. It was like she — she wasn’t running but she was going fast, but she wasn’t actually running. Q Did you at any time, Mrs. Spurrier, see the pedestrian stop again once she started to look for southbound traffic in the lane in which Mrs. Spampinato’s vehicle was traveling? A I didn’t see her again until she was on the ground.

Q Well, did she have one continuous motion until you saw her on the ground or saw the car pass her, or did she stop? A She didn’t stop, she just kept going. Q Could you see* the front of that vehicle as it was southbound? A Yes.

Q Did you see the front of that vehicle come in contact with the pedestrian? A No. ⁹⁰ Q What I am trying to find out, and I don’t think it’s clear to the jury, is why you did not see what part of the vehicle, the white vehicle you described, come into contact with the pedestrian or vice versa. Can you describe for me, and tell the jury, why you couldn’t tell precisely where the point of impact was? A Well, I believe it’s because the girl was a certain distance from the Volkswagen, and when the white car passed at a certain time I couldn’t see the girl any longer as the car got, the white car got so far past.

Q Are you saying that the white car was between where you were and the pedestrian was? A Right. Q Did you at any time — let me ask you this: Was that white car in it’s own lane? A Yes.

Q Did it cross the centerlines, the white strips, and go into the lane the Volkswagen was parked in? A No.” The left sideview mirror of the moving vehicle was loose and hanging down after the accident. The moving vehicle bore no evidence of other damage. The Law Article 66V2, § 11-503, Crossing at Other Than Crosswalks, in pertinent part reads as follows: “(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” In Subtitle 1. of Article 66V2, Words and Phrases Defined, § 1-175 reads as follows: ⁹¹ “Right-of-way means the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian.” There can be no doubt that the movement of a pedestrian from a place of safety at the centerline of a highway into the path of a moving vehicle proceeding in a lawful manner on the highway ordinarily would constitute contributory negligence as a matter of law.

In Vokroy, Admr. v. Johnson, 233 Md. 269 , 196 A. 2d 451 , it was said at 273-74 [453]: “This Court has often held it to be contributory negligence as a matter of law for a pedestrian to leave a place of safety for a position of peril between street crossings, thereby contesting the right of way of vehicular traffic then in the street. Leonard v. Hanson, 225 Md. 76 , 169 A. 2d 459 ; Campbell v. Jenifer, 222 Md. 106, 111 , 159 A. 2d 353 , and cases there cited.” The crux of appellant’s contention in the subject case, however, is that this well established rule of law is not available as a bar to the liability of either the operator of the standing vehicle or the operator of the moving vehicle because of the existence of these unusual facts, namely: (1) that the standing vehicle came to a stop to permit the pedestrian to complete her crossing of the highway; (2) that the operator of that vehicle waved to her to cross the highway; and (3) that the operator of the moving vehicle, alerted to appellant’s danger by one or both of those facts, did nothing to avoid harming her. We have found no Maryland case directly in point. Cases in other jurisdictions against operators of standing or moving vehicle or both, under circumstances akin to the subject case are relatively few, and are conflicting.

In the ⁹² subject case the trial judge stated that the separate motions for directed verdicts were granted because he found appellant to be contributorily negligent as a matter of law. Some of the cases in other jurisdictions hereinafter discussed, wherein verbal directions or hand signals by operators of standing vehicles had been given to pedestrians or to other vehicles, dealt with both the primary and the contributory negligence aspects of their facts. We think both aspects appropriate for consideration where the allegedly negligent actions of the parties defendant are so markedly different in character. We shall first set forth those decisions where it was concluded that the liability issue was for the jury.

In Spagnola v. New Method Laundry Co., 152 A. 403 (S. Ct. of Errors of Conn., 1930) a pedestrian was struck by an automobile as she passed in front of a street car. The motorman had motioned to her to pass in front of the standing car. The operator of the street car was not sued. After holding that the negligence of the automobile driver was a jury question, the Court addressed itself to the issue of the contributory negligence of the pedestrian, saying at 404: “* * * It is reasonably clear from these circumstances that the first and only opportunity the plaintiff had to know of the approach of the automobile was while she was covering the two feet of distance beyond the trolley car.

She had the assurance of the motorman that she could cross in front of his car, and it cannot be said that she did not act the part of a reasonably prudent person in doing so. The trial court felt that she should have seen the automobile and that her failure to do so was negligence as matter of law. But she had the right to assume that no automobile would be running at such speed within two feet of the side of a standing trolley car that it could not be stopped in time to avoid a collision with her. It cannot be said as matter of law that she was bound, under the ⁹³ circumstances, to stop and peer around the front of the trolley car before stepping into the street beyond for two feet.

Naylor v. Haviland, 88 Conn. 256, 259 , 91 A. 186 ; Wennell v. Dowson, 88 Conn. 710, 712 , 92 A. 663 . Even if, with the utmost vigilance, the plaintiff had been able to see the approaching automobile during the fraction of a second she required to cover the two feet, it is quite evident she could not, even then, have avoided the collision. A statement made by the trial court, when denying the defendant’s motion for a directed verdict, that this was a matter which it believed should be left to the jury as a question of fact rather than to the court as a matter of law, was, we think, the correct view.” Under facts quite similar to Spagnola, supra, the Supreme Court of Rhode Island in the case of Cunningham v. Walsh, 163 A. 223 , said at 225: “As her view was obstructed by the car and as she was leaving a place of safety to go into a place of possible danger, the circumstances were such as to require her, for her own safety, to be alert and cautious. At the first opportunity she was bound to look for street traffic before going into the part of the street between the curbing and the trolley car.

Apparently she was struck by the truck before she had taken more than one step beyond the side of the trolley car and before she could stop or look toward the rear of the car. Judging from the posture of her body after she was knocked down, it is evident that the truck was being driven close to the side of the trolley car. It was not negligence as a matter of law for her merely to extend a part of her body beyond the side of the car. She was entitled, if necessary, to a reasonable opportunity to move a sufficient distance into the street to enable her to observe that part of the street upon which she must pass to enter the trolley car. ⁹⁴ “In the recent case of Spagnola v. New Method Laundry Corp., 112 Conn. 399 , 152 A. 403 , in similar circumstances, it was held that a pedestrian was not bound as a matter of law to stop and peer around the front of a trolley car before stepping into the street beyond. “On a motion to direct a verdict for defendant, all reasonable inferences in favor of plaintiff must be drawn from the evidence.

Jacobs v. United El. Rys. Co., 46 R. I. 230, 125 A. 286 . The question of contributory negligence commonly is a question of fact to be determined by a jury, and a verdict should not be directed for a defendant on this ground if, on any reasonable view of the evidence, a plaintiff is entitled to recover.” In Armstead v. Holbert, 122 S.E.2d 43 (S. Ct. of App., W. Va., 1961), an action against the operators of both standing and moving vehicles, although the decision largely dealt with issues not relevant to the subject inquiry, it is clear that the decision inferentially determined that where the operator of a motor vehicle has waved a pedestrian to pass in front of his vehicle and the latter is struck by another vehicle in his continuing movement across the highway, the issues of negligence and contributory negligence of the parties are matters properly left for determination by the jury. 1 In Sweet v. Ringwelski, 106 N.W.2d 742 (S. Ct. Mich., 1961), a 10 year old pedestrian had stopped in the center of an intersection at a crosswalk because of the approach of traffic from her right.

A truck and other vehicles in the center lane of traffic stopped. The driver of the truck waved to the child to cross in front of him. The child was struck by a vehicle traveling in the curb lane of the highway. On those facts the Court in its discussion of the negligence of the operator of the standing vehicle and the contributory negligence of the pedestrian said: (at 744-46) ⁹⁵ “The action of defendant Thompson [truck driver], claimed as negligence by plaintiff, was his waving her on without having ascertained that she could proceed across the rest of the intersection in safety, without danger from other approaching vehicles.

In Hart v. Ludwig, 347 Mich. 559, 564 , 79 N.W.2d 895, 898 , this Court quoted from 38 Am. Jur., Negligence, § 17, p. 659, as follows: ‘ “The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies.” ’ “Reference to that same American Jurisprudence section discloses the further statement that: ‘The good Samaritan incurs a responsibility avoided by those who “pass by on the other side.” One person seeing another in distress may or may not be under legal obligation to afford him relief, but if he does undertake it he is bound to act with reasonable prudence and care, to the end that if his effort be unavailing it shall at least not operate to increase the injury which he seeks to alleviate.’ “We do not believe that the court should have determined, as a matter of law, the intended meaning of Thompson’s waving action and, more important, the thought that it might reasonably have been anticipated would be conveyed thereby to the 10-year-old girl. These, it seems to us, were questions of fact for the jury. The answers would be determinative of the question of Thompson’s negligence. ⁹⁶ “* * * we conclude that the question whether her proceeding, in the fashion she did, continued to be caused by Thompson’s action, or whether that had been superseded by intervening negligent action of plaintiff, presented a question of fact for the jury.

And so, also, for the question of whether Thompson should or might have foreseen such consequence, that was for the jury to say. If plaintiff’s subsequent act was reasonably foreseeable, it would not, of course, constitute such intervening conduct as to terminate the effect and legal consequences of defendant’s antecedent negligent act. 2 ” See also: Gamet v. Jenks, 197 N.W.2d 160 (C. A. Mich., 1972), where the Court said at 164: “In Michigan, a driver who waves a pedestrian across a street where he is hit by another driver may be liable for the pedestrian’s injuries. Sweet v. Ringwelski (1961), 362 Mich. 138 , 106 N.W.2d 742 . In Ringwelski, the Supreme Court indicated that it is not for the trial judge to decide the intended meaning of such a wave to a pedestrian.

The answer is for the jury and determines liability. 3 ” In Riley v. Board of Education, 223 N.Y.S.2d 389 (S. Ct., App. Div., 3rd Dept., 1962), the Court sustained judgments ⁹⁷ recovered against the operators of both the standing vehicle and the moving vehicle. As to the moving vehicle the court found that excessive speed gave rise to a jury question as to the negligence of its operator. As to the standing vehicle the Court said: (at 391) “We likewise find the defendant McGinnis guilty of negligence in the operation of her automobile. This teacher, apparently acting as a Good Samaritan, invited the children to ride in her privately owned automobile rather than to wait for a returning school bus.

When she reached the vicinity of the child’s home and the decedent alighted from the car, she undertook to direct him across the road and in so doing, she apparently confused the little boy so that he started to cross and into the path of danger and death. The affirmative act of waving her hand to direct the discharged passenger, under the circumstances, was negligence. There was evidence for the jury to determine that Miss McGinnis was at fault in the manner in which she operated and controlled her automobile.” The Court summarily declared that there was “no evidence of contributory negligence on the part of the decedent.” The decedent was an eight year old child. In Wulf v. Rebbun, 131 N.W.2d 303 (S. Ct. Wisc., 1964), although the question arose by demurrer to the declaration, the Court posed the issue as follows: (at 305) “Specifically, can an operator of a motor vehicle parked along a curb be negligent