Eastern Contractors, Inc. v. State

Henderson, J., delivered the opinion of the Court. August R. Seifert, employed as a special police officer by Buckley & Co., Inc., a dirt moving contractor working on the approaches to the Baltimore Harbor Tunnel, was killed while directing traffic on the morning of June 1, 1956, at the intersection of Belle Grove Road, a paved State highway running east and west, and a temporary dirt road intersecting it at right angles. His widow and children brought a death case action against Eastern Contractors, Inc., and its employee Jeffers and against Buckley and its employee Rhodes. Eastern brought an action against Buckley for damages to its truck.

The cases were consolidated for trial. It was shown that Aetna Casualty and Insurance Company, appearing as plaintiff-subrogee in the death case, had paid $10,000 to the widow and children of Seifert under a Workmen’s Compensation policy it had written for Buckley. At the conclusion of the trial the ¹¹⁷ jury answered issues submitted, determining that Jeffers was guilty of negligence directly contributing to the happening of the accident, that Rhodes was likewise guilty, and that Seifert was not guilty. The court entered judgments for the Seiferts in the amounts found by the jury, less a remittitur of $10,000 which was accepted, against Eastern, Jeffers and Rhodes; granted a motion for judgment N.O.V. in favor of Buckley, the conforming employer; and entered a judgment for costs in favor of Buckley against Eastern in the property damage case.

Eastern and Jeffers appealed. The appellants make three contentions: (1) that the trial court erred in its instructions to the jury as to the negligence of Jeffers and Rhodes, (2) that the court erred in refusing to grant a motion for mistrial at the conclusion of the closing argument of counsel for the Seiferts, and (3) that the court unduly restricted the cross-examination of Rhodes by counsel for the appellants. To resolve the first contention it is necessary to review the testimony in some detail. Belle Grove Road is a heavily travelled highway twenty-five feet wide with nine-foot dirt shoulders.

The temporary dirt road w’as forty-eight feet wide. Traffic at the intersection was controlled by an overhead signal light, installed by Buckley under a permit issued by the State Roads Commission, and by traffic officers, of whom Seifert was one. It was shown that the traffic light had an automatic cycle 50 sec. green for Belle Grove Road, then 5 sec. amber, then 25 sec. red. For the intersecting road the interval was 25 sec. green, 5 sec. amber, 50 sec. red.

When the light turned red for either road, it turned green for the other road. Buckley was engaged in moving dirt across the State highway and had been so engaged for two or three months before the accident. The traffic light had been installed for a month to six weeks. During the same period Eastern had been engaged in hauling sand along the Belle Grove Road.

On the morning of the accident Jeffers was driving east on Belle Grove Road up grade in a ten-w’heel Mack truck loaded with sand, and Rhodes was driving north on the dirt road down grade in a payscraper thirty feet long loaded with about eighteen cubic yards of dirt and ¹¹⁸ weighing about thirty-five tons. It was powered by a diesel engine and had air brakes on all wheels. The vehicles collided in the intersection, and it would appear from photographs and other evidence that the left front of the payscraper struck the truck on its right side behind the front wheel, blowing the front tire and rupturing the air line to the brakes. The impact caused the truck to move sideways and diagonally across the road where it came to rest on its side in the ditch on the north side of Belle Grove Road.

The damage to the truck was over $6,000. In its progress it struck and killed Mr. Seifert, who had started to run but ran in the wrong direction toward the east. The payscraper came to rest about eight feet from the south side of the paved portion of Belle Grove Road at an angle toward the south. Jeffers testified that he was thoroughly familiar with the road and crossing in the course of making some 20 round trips daily.

He knew that the payscrapers, of which there were eight on the job, were using the crossing. He testified that he stopped because the light was red. Traffic moving west on Belle Grove Road also stopped for the light. When the light changed to green he started across in low split second gear at a speed of from two to three miles per hour.

The officer also waved him to come on. Jeffers testified he had frequently seen the payscrapers go across the road when he was stopped for a red light. It was shown that he had testified at a magistrate’s hearing in 1956 that he had seen them “go across the road when I saw the light changing.” He explained that he meant “they might go across sometimes” when “right at the road,” not against a red light. He didn’t see the payscraper until just before the impact.

He looked to his right when he saw the officer start to run. He heard the noise of the payscraper coming over the hill but didn’t look at it. He couldn’t judge its speed without knowing what gear it was in. The motors make more noise in the lower gears.

Clinton Smith, seventy-two years of age, testified he was driving his car west on Belle Grove Road and stopped for the red light at the edge of the intersection. He saw the Eastern truck loaded with sand stop on the opposite side. ¹¹⁹ There were several cars behind the truck and a tank truck and several cars behind his own car. He saw the officer directing traffic standing about in the center of the dirt road and on the north side of Belle Grove Road on the shoulder. When the light changed to green, the officer blew his whistle and made an arm signal, and he started up.

The tank truck was blowing for him to go ahead. His wife yelled “look at that thing coming down hill, that’s going to hit something.” He stopped about eight feet into the forty-eight foot crossing zone. He saw the payscraper strike the truck, which was crossing at a slow rate of speed, on its right side. Mr. Seifert ran towards his car, but the truck hit him.

Mrs. Smith testified to the same effect. She saw the light turn green, and heard the officer blow his whistle. Her husband started but stopped when she noticed the big payscraper coming down and cried out. Rhodes testified that he was driving the loaded payscraper at about ten to twelve miles per hour in second gear as he approached the crossing.

The vehicle was equipped with air brakes and could also be stopped “instantly” by tripping a lever and dropping the pan. He testified that the light was green for him when he was thirty feet from the intersection, and Mr. Seifert gave him a signal to come on. He saw the sand truck, but it did not stop at the intersection but came straight through. At the last moment he realized that the truck “wasn’t observing the light at all.” He turned to his right, but the truck struck his hub cap and “drug up the side”.

He was “jack-knifed” and at a “dead stop” when the truck hit him. After the accident Rhodes told an investigating officer he didn’t remember anything at all that had happened. The case presents a sharp conflict of evidence as to which vehicle had the right of way. If the testimony of Jeffers and the Smiths is to be believed by the triers of fact, Jeffers had the green light and was directed to proceed by the officer in charge.

He moved more than twenty-four feet to the point of impact at a speed of three miles per hour. It may be inferred that during that interval the payscraper, moving at ¹²⁰ twelve miles per hour, would cover four times the distance, or ninety-six feet, with the red light against him all the way. Allowing for reaction time and time to start the truck from a standstill, the payscraper may have been much farther away. On the other hand, if Rhodes is believed, he had the green light in his favor, and Jeffers came through without stopping against the red and struck the payscaper while it was at a standstill.

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 vehicle, even though given the green or go signal at an intersection, is required to use due care and caution 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 states, that a driver having a green light in his favor cannot ignore traffic in the intersection when the light changes. The amber interval affords vehicles facing it an opportunity to stop and requires that they stop, “but if such stop cannot be made in safety a vehicle may be driven cautiously through the intersection.” Code (1957), Art. 66)4, sec. 193 (b) (1). It also allows time for vehicles entering on a green or amber light to complete the crossing, but does not authorize entry against a red light.

If the amber interval is insufficient in the ¹²¹ case of wide streets or long or ponderous vehicles, the mere fact that the light may have turned green in favor of traffic moving along the intersecting street does not alter the right to complete the passage. Code (1957), Art. 66y2, sec. 193 (a) states the rule clearly: “Green alone or ‘go.’ (1) Vehicles facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. All vehicles shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited.” Subsection (c) “Red alone or ‘stop’” provides: “(1) Vehicles facing the signal shall stop before entering the nearest cross-walk at an intersection or at such other point as may be indicated by a clearly visible line and shall remain standing until green or ‘go’ is shown alone.” The subsection first quoted was applied in Valench v. Belle Isle Cab Co., 196 Md. 118 , and Eisenhower v. Balto. Transit Co., 190 Md. 528, 534 .

Cf. Caryl v. Baltimore Transit Co., 190 Md. 162 , and United States Fid. & Guar. Co. v. Continental Baking Co., 172 Md. 24 . But the second part of the instruction does not follow from the first.

The jury was instructed that if the favored driver failed to observe the conditions of the traffic about him and did not pay proper attention to approaching vehicles, or in any other respect failed to use due care, the verdict must be against him. We may note that the instruction is incomplete in that it leaves out any reference to proximate cause. In effect, the court was directing a verdict against the favored driver, for Jeffers admitted that he did not see the payscraper “approaching” the intersection, although it may be inferred that it was at a substantial distance at the time he started across. This goes far beyond the statutory duty to yield the right of way to vehicles “lawfully” in the intersection and imports that he was not entitled to rely upon his right of way even as to vehicles, unlawfully entering the intersection against a red light.

We think that is not a correct statement of the law. We think the applicable rule of law is well settled under the Maryland cases. In Sun Cab Co., Inc. v. Cialkowski, 217 Md. 253, 257 , ¹²² a case in which, in one view of the evidence, a pedestrian had a green light and was struck by a cab coming through against the red, Chief Judge Bruñe, for the Court, said that “the jury could properly have found that the plaintiff had the right of way and that he was not bound to anticipate that the driver of the taxicab would not respect it”, citing the Caryl case, supra, and Wintrobe v. Hart, 178 Md. 289 . In the Wintrobe case, it was said at p. 298, citing a number of earlier cases, that “a plaintiff was not guilty of contributory negligence in failing to look up and down the street after she had rightfully undertaken to cross, since she had the right to assume that her right of way would be respected.” It was held that a prayer (p. 295) to the effect that the verdict must be for the defendant if the plaintiff “could have seen the defendant’s automobile approaching * * * in time to have stopped * * * and that she failed to do so, thereby contributing to the happening of the accident”, imposed too strict a duty upon appellant and should not have been granted.

In a long line of cases it has been held that there is no duty to anticipate that a driver facing a stop sign or red light will not obey the statutory obligation to stop and yield the right of way. See, for example, Carlin v. Worthington, 172 Md. 505, 509 , where the rule was analogized to the “stop, look, and listen” rule applicable to railroads, Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , Sonnenburg v. Monumental Motor Tours, 198 Md. 227 , and Shriner v. Mullhausen, 210 Md. 104 . In Katzel v. Clark, 215 Md. 54, 62 , the so-called “boulevard” rule was stated, quoting from Schwartz v. Price, 215 Md. 43, 48 , and citing a number of cases. See also White v. Yellow Cab Company, 216 Md. 286, 289 .

In State v. Marvil Package Co., 202 Md. 592 , it was held that the proximate cause of the accident was the failure of the unfavored driver to stop in obedience to a flashing red signal under sec. 196 (1), and not the failure of the favored driver to see the unfavored vehicle until just prior to the impact. In the leading case of Sun Cab Co. v. Faulkner, 163 Md. 477, 479 , it was held that the proximate cause of the collision was the failure of a cab to respect a red light, and not the excessive ¹²³ speed of the other vehicle. See also Gudelsky v. Boone, 180 Md. 265 , a traffic light case. Cases dealing with the right of way at intersections not controlled by traffic lights or stop signs are clearly distinguishable, and have been distinguished.

Houlihan v. McCall, 197 Md. 130, 137 ; Legum v. Hough, 192 Md. 1 ; Wlodkowski v. Yerkaitis, 190 Md. 128 ; Nardone v. Underwood, 219 Md. 326 . In the Legum case, supra, we said (p. 4) that the statutory right of way rule (Code (1957), Art. 66j4, sec. 231) was applicable only “where traffic is not controlled by traffic lights or stop signs”. On p. 6 it was said: “The limited effect thus given to the right of way rule has not escaped criticism. * * * Nevertheless, although a more stringent rule, comparable to the ‘stop, look and listen’ rule, has been applied in cases where traffic is controlled by lights (Sun Cab v. Paulkner, 163 Md. 477 , 163 A. 194 ; Gudelsky v. Boone, 180 Md. 265 , 23 A. 2d 694 ) or by stop signs (Carlin v. Worthington, 172 Md. 505 , 192 A. 356 ; Shedlock v. Marshall, 186 Md. 218 , 46 A. 2d 349 ; Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , 49 A. 2d 537 ), the rule announced in the Ottenritter case [ 151 Md. 525 ] is still the law of Maryland, in the case of uncontrolled crossings.” In the instant case the crossing was not uncontrolled, but was controlled by both stop lights and a traffic officer. We think the boulevard cases are in point because they deal with signs or signals imposing a peremptory duty to stop similar to that imposed by the subsection involved in the instant case, “Red alone or ‘stop.’ ” The red light is simply another form of stop signal, as was clearly stated in the Legum case.

The point is further illustrated by Hickory Transfer Co. v. Nezbed, 202 Md. 253. There a traffic light on a boulevard was out of order, although the light facing the intersecting street was functioning. The driver on the boulevard assumed that the traffic light had been switched off and that the boulevard stop signs controlled. The driver on the intersecting street came through on a green light, believing that the red light was against the other vehicle.

It was held that each driver was entitled to rely on his right ¹²⁴ of way and that neither was negligent. There was no suggestion that the vehicle facing the green light had a higher duty of care. Moreover, the same rule has been applied in cases, above cited, involving pedestrians, who are included with vehicles in the very subsection in question. There may be circumstances apart from nice calculations of time and distance, under which a favored driver proceeding on a green light may be put upon notice that an unfavored driver will enter unlawfully.

But we think the evidence in the instant case does not present such a case, assuming that the testimony of Jeffers is believed. Failure to see the unfavored vehicle was not the proximate cause of the accident because if he had seen it, he could properly have assumed that it would stop. Schwarts v. Price, supra, and cases there cited. If the vehicle was more than ninety-six feet away and moving at only twelve miles per hour, with the unusual capacity of stopping not only by the use of air brakes, but by dropping the “pan”, there was no reason to suppose that it would not stop in obedience to the signal.

The fact that it was making considerable noise in second gear would not give notice that it would ignore the red light. Jeffers’s pretrial statement that he had seen other payscrapers crossing when the lights were changing would not alter the case. He did not say that he ever saw a vehicle enter the intersection against a red light; in fact he testified just to the contrary. Since we think his pretrial statement was not inconsistent with his testimony when called as an adverse party, we do not reach the question whether the prior statement could be used as affirmative evidence, and not merely to affect his credibility.

See Sun Cab Co., Inc. v. Cusick, 209 Md. 354, 361 . It was upon the latter theory that the trial court admitted it. The appellees rely strongly upon the cases of Sklar v. Southcomb, 194 Md. 626 , and Baltimore Transit Co. v. Young, 189 Md. 428 . In the Sklar case, the favored driver did not see a car which was being driven through a red light at the end of a funeral procession.

At that time the statute (Code (1957), Art. 66yz, sec. 193 (f), states the present law on ¹²⁵ the subject) did not give the right of way to a funeral procession, but there was proof of a long established custom, whereby vehicles, following the first vehicle in a funeral procession that entered on a green light, continued to cross despite a change of lights, and that Southcomb had knowledge of it. Other waiting cars in two lanes were allowing Sklar to pass when Southcomb attempted to pass them on the wrong side of the street. It was held that a jury question was presented as to whether Sklar’s negligence in passing on the wrong side contributed to the accident. The case is readily distinguishable.

The Young case, dealing with an emergency vehicle accorded a statutory right of way, is not in point. It is not without significance in the instant case that according to Jeffers and the Smiths the traffic officer, Mr. Seifert, did not anticipate that the payscraper would run the red light, for he gave the signal for east and west traffic to proceed after the light turned green. It is difficult to see why Jeffers should be charged with negligence if he depended upon the judgment of the traffic officer or, conversely, how Jeffers could have been guilty of negligence and the officer not equally guilty. Under sec. 181 of the Motor Vehicle Law it was Jeffers's duty to obey the direction of the traffic officer.

Neither the officer, Jeffers, nor the Smiths anticipated that the payscraper would run the light until it was actually at or in the intersection. Obviously, it was then too late for Jeffers to stop. We find no evidence of negligence on the part of Jeffers except upon the theory that he entered upon a red light as Rhodes maintained. On the other hand, if Rhodes’s testimony is believed, the sole and proximate cause of the accident was that Jeffers failed to stop at a red light.

We think that issue, and that alone, should have been put to the jury as regards the negligence vel non of Jeffers and Rhodes. Since the case must be retried, we shall briefly discuss the other points raised. Counsel for the Seiferts in his closing argument to the jury said: “If your answer to issue No. 1 is ‘no’, then the plaintiff will walk out of this court without a cent.” There was a motion for mistrial, which the court denied. Nor did the court give any curative instruction.

We ¹²⁶ think the argument was improper, although it is argued that counsel for the appellants opened the subject by telling the jury that if their answer was “no”, Eastern would recover for damages to its truck. The contention is made that counsel for the appellants is estopped to raise the point since he invited the retaliation or reply. However that may be, we think the statement carried an implication that Rhodes was impecunious or not covered by insurance, which may or may not have been the case. The cases generally recognize that references to wealth or poverty in a civil case are improper.

See Note, 32 A.E.R. 2d 9. Rhodes has not appealed, and the question suggested by the appellees that he may not have been liable as a fellow servant of Seifert is not before us. The statement was particularly harmful in view of the erroneous instruction as to liability. We may assume that it will not be repeated upon the new trial.

The final question is whether counsel for the appellants was unduly restricted in his cross-examination of Rhodes. Jeffers and Rhodes were each called by the plaintiffs as adverse parties. The only questions put to Rhodes were to elicit his claim that he had the green light as he entered the intersection. The trial court sought to limit cross-examination by counsel for the appellants to the issue developed in direct examination, but suggested that counsel might call Rhodes as an adverse party.

This counsel did, apparently acquiescing in the court’s ruling. In any event, we think the record does not show an abuse of the court’s discretion, or that the appellants were prejudiced thereby. The appellants do not challenge the correctness of the court’s ruling as to the judgment N.O.V. in the death case. It was shown, of course, that Buckley was a conforming employer.

See Baltimore Transit Co. v. State, 183 Md. 674 ; Congressional Country Club v. Baltimore & O. R. Co., 194 Md. 533 . Upon remand, there is no occasion to resubmit to a jury the issue as to damages. Maryland Rule 872 a; Keitz v. National Paving Co., 214 Md. 479, 504 . Nor do we see any occasion to resubmit the issue as to the contributory negligence ¹²⁷ of Seifert, which was not mentioned in the appellants’ brief.

There was no appeal from the judgment against Rhodes. Thus, the only issue to be resubmitted is as to the negligence vel non of Jeffers and Eastern. Judgments against Eastern and Jeffers reversed; judgment in favor of Buckley in the death case affirmed; judgment in favor of Buckley in the property damage case reversed; costs to be paid by the appellees; case remanded for a new trial. Bruñe, C. J., filed the following dissenting opinion, in which Hammond and Horney, JJ., concurred.

The Legislature has recognized at least these three different types of highway intersections, with different statutory provisions applicable to each: (1) uncontrolled intersections; (2) intersections controlled by traffic lights; and (3) intersections controlled by fixed stop signs erected by the State Roads Commission or other authorized public authority. 1 The majority opinion consolidates the last two by making the so called boulevard rule applicable to changing light intersections. At an uncontrolled intersection, the driver approaching to the right of the other driver has the right of way over the latter. Code (1957), Art. 66j4, § 231. 2 This section is a cautionary guide, rather than a peremptory command. Wlodkowski v. Yerkaitis, 190 Md. 128 , 57 A. 2d 792 ; Legum v. Hough, ¹²⁸ 192 Md. 1 , 63 A. 2d 316 ; Rabinovitz v. Kilner, 206 Md. 455 , 112 A. 2d 483 .

The bright hope that this statute, which was first adopted in 1916, would solve the prior confusion in intersection collision cases simply and definitely (see Buckey v. White, 137 Md. 124 , 111 A. 777 ) was not realized. See, for example, in addition to the cases above cited, Chiswell v. Nichols, 137 Md. 291 , 112 A. 363 ; Taxicab Co. v. Ottenritier, 151 Md. 525 , 135 A. 587 ; Askin v. Long, 176 Md. 545 , 6 A. 2d 246 . Intersections controlled by traffic signals are generally governed by § 193. 3 Section 193 reads in part as follows: “Whenever traffic is controlled by traffic-control signals exhibiting the words ‘go/ ‘caution/ or ‘stop/ or exhibiting different colored lights successively one at a time the following colors only shall be used and said terms and lights shall indicate as follows: “(a) Green alone or ‘go.’ (1) Vehicles facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. All vehicles shall