Fouche v. Masters

Moore, J., delivered the opinion of the Court. In this automobile negligence case arising out of a head-on collision, a jury awarded $50,000 damages to an injured passenger against both the host driver and the personal representative of the driver of the second car who died of injuries sustained in the crash. On appeal, the host driver maintains that the trial court (Barrick, J.) erred in overruling his motion for a directed verdict because (a) he was faced with an emergency and there was no evidence that he failed to exercise due care and (b) the testimony of the plaintiff passenger exonerated him. The personal representative presents a single issue: that the trial court erred in reading Md. Transp.

Code Ann. § 21-902 (a) (Driving while intoxicated) and § 21-902 (b) (Driving while ability impaired by alcohol) as part of its jury instructions. I The relevant facts are largely undisputed. On June 3, 1978, appellee, Ruth Arlene Masters, 53, a widowed schoolteacher, and appellant, Noble Benjamin Ridings, Jr., a friend and companion of some fifteen years, had a dinner date in Thurmont, Maryland. 1 Shortly after 8:00 p.m., they left the restaurant and proceeded to drive south on U.S. ¹³ Route 15 in Ridings’ Chrysler with Ridings behind the wheel. Masters testified that although it was not quite dark, "ti]t was misty — it hadn’t started to rain yet, just a dreary evening.” Route 15 was a 24-foot wide, two-lane highway divided by a painted center line which permitted one lane of traffic to travel in each direction.

Adjoining each lane was a 12 foot asphalt shoulder thus extending the width of the highway to a total of 48 feet. On the evening in question, traffic was light. The appellee, Masters, testified that she observed the headlights of an oncoming car in their southbound lane about 100 to 125 feet away. When questioned about the car approaching in their own lane Masters responded, "I’m positive.

I have nightmares about that yet, I see those lights coming at us.” Masters also testified that the driver of the approaching vehicle, appellant Fouche’s decedent, James Wilson Fouche, Jr., age 21 (hereinafter "Fouche”), was slumped over the wheel and shortly before impact, raised his head and steered his car back into the northbound lane. Ridings, in his testimony, said that he was proceeding at about fifty miles per hour when he first saw the Fouche vehicle and that its speed was about the same. He removed his foot from the accelerator and watched to "see what he was going to do.” He then described the final tragic moment: "Then I saw he wasn’t going to go back in his lane so I swerved over, I turned over in the left lane, and at the same instant I did that, the other driver did the same thing.” When asked why he (Ridings) didn’t swerve to the right instead of the left, Ridings responded: "[DJidn’t think about it.” A Maryland State trooper, who investigated the accidecl shortly thereafter, testified that the point of impact was approximately 3¥-¿ feet east oí' the center line in the northbound lane. Contact was made between the left-front section of each vehicle.

He also testified that upon arriving at the scene, Fouche’s vehicle was partially in the northbound lane and partially on the shoulder adjoining that lane. The Ridings vehicle was straddling the center line facing in a southeasterly direction. A gouge mark in the ¹⁴ pavement appeared in the northbound lane and a set of skid marks extended from the southbound lane into the northbound lane. James Wilson Fouche, Jr., driver of the northbound automobile, a Ford Mustang, was critically injured in the accident and died in the Emergency Room of the Washington County Hospital within three hours.

Both Ridings and Masters were injured, Masters more seriously. A post mortem chemical analysis performed on Fouche by a toxicologist of the State Medical Examiner’s Office, disclosed that his blood alcohol level was 0.17 percent. The report was, by stipulation, received in evidence. The appellee, Ruth Arlene Masters, filed suit in the Circuit Court for Frederick County against Noble Benjamin Ridings, Jr., and Barbara Fouche, mother of the deceased driver, as personal representative of his estate, for damages resulting from the alleged negligent operation of both automobiles.

Ridings moved for a directed verdict at the close of the plaintiffs case on the ground that the evidence showed an emergency situation created entirely by Fouche and that Ridings’ response by turning into the northbound lane was, as a matter of law, not negligent. Ridings also argued that the uncontradicted testimony of Masters clearly exonerated him from liability. The trial court overruled Ridings’ motion, stating: "The Court has considered Mr. Smith’s motion for directed verdict and has read the case of Virginia Freight v. Montgomery, reported in 256 Md. 221 , and the Court will overrule the motion since this case points out that the operation of a motor vehicle in violation of the Transportation Article [§ 21-301] by driving across the center line is prima facie evidence of negligence and the burden is upon the driver to overcome the presumption of negligence by showing that under circumstances such as the condition of the road or an emergency in the traffic he was justified in driving across the center line. There is no evidence of emergency situation in this case nor any condition of the road which would ¹⁵ overcome this presumption, and therefore the motion is overruled.” 2 "I think from her [Masters] testimony that the jury could also very well decide that Mr. Ridings was negligent in crossing the center line, and she did not exonerate him as I heard her testimony, and upon cross-examination Mr. Varner pointed out that in her declaration she accuses him of negligent driving, so for those reasons the motion will be overruled.” Ridings’ motion was renewed at the conclusion of the entire case and was again overruled.

II Ridings contends that the trial court erred in overruling his motion for a directed verdict. He argues that the undisputed testimony clearly establishes that he was confronted with an emergency and was not guilty of any negligence causing or contributing to the accident. He cites Virginia Freight Lines, Inc., etc. v. Montgomery, 256 Md. 221 , 260 A.2d 59 (1969) and Mason v. Triplett, 217 Md. 433 , 141 A.2d 708 (1958) as controlling authorities. We have carefully examined and considered each case.

In Montgomery , plaintiffs tractor-trailer 1 was southbound at about 4:30 p.m. on a May afternoon, on a two-lane road with traffic proceeding in a single lane in each direction. The highway shoulders, adjacent to each lane, were approximately 6 to 8 feet in width. They were described as "fairly hard.” The plaintiffs driver, Asa Nickens, was traveling at about 40 miles per hour behind another truck at a distance of 300 to 500 feet. The weather was "clear” and ¹⁶ the surrounding area was "open country.” When the truck directly ahead of the plaintiff suddenly pulled over to the right shoulder, Nickens observed an automobile driven by the defendant, Montgomery, approaching in the same lane from the opposite direction.

The defendant’s automobile was less than 150 feet away. Nickens testified that he could not drive onto the right shoulder because of the presence of the other truck. He, therefore, veered away to the left into the northbound lane and his right front wheel hit the right front wheel of Montgomery’s car. No personal injuries were sustained.

Nickens’ employer brought suit for property damages in excess of $4800. The trial judge, finding for Montgomery, stated that the only question was whether the driver of the plaintiffs tractor-trailer was guilty of contributory negligence and applied the rule set forth in Cocco v. Lissau, 202 Md. 196, 199 , 95 A.2d 857, 858 (1953): "A driver who violates this 'rule of the road’ [Md. Transp. Code Ann. § 21-301 (1977) requiring vehicles to be driven upon the right half of the roadway] is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances, such as the condition of the road or an emergency in the traffic, he was justified in driving in the center or upon the left half of the road.” The lower court then concluded that Nickens was not confronted with an emergency. On appeal, the Court of Appeals reversed, stating "[a]lthough Judge Carter found a few additional 'inconsistencies’ and 'contradictions’ [in the testimony] we think, all things considered, that Nickens did react to an emergency traffic condition which arose because Montgomery was driving his car in the wrong traffic lane.” Id. at 227.

The Court, in an opinion by Judge McWilliams, went on to consider the question of whether Nickens breached the standard of care owed under the circumstances ¹⁷ of an emergency and concluded that he was not negligent by swerving to the left. In dicta the court suggested that even had the right shoulder been clear, its conclusion would have been the same. The Court stated in part: "[W]e have no difficulty concluding that by swerving to the left, Nickens did only what any reasonably prudent man would have done faced with a like emergency. Nor would our conclusion differ had we assumed, for the sake of argument, that Nickens’ access to the right shoulder was not blocked as he claimed.” (Emphasis added.) Id. at 228.

Mason v. Triplett, supra, also involved a collision with a vehicle proceeding in the wrong lane of traffic. Mason was driving a 1954 Lincoln in a northerly direction on the proper side of a two-way street, 22 feet wide, with 6 foot gravel shoulders. The time was about 8:00 p.m. in late January. It was dark and the weather clear.

While driving at a speed of 25 miles per hour, he observed a pair of headlights, four or five car lengths ahead, on his side of the road. After swerving to the left at about a car length away to avoid the oncoming car, a 1953 Ford, the impact occurred. A passenger in the Ford filed suit against both drivers and the owner of the Ford. Mason sued the driver and the owner of the Ford.

In a consolidated trial, the jury returned a verdict for the passenger against both drivers and a verdict for the Ford driver in Mason’s suit. 3 Mason appealed, contending that his motion for a directed verdict and judgment n.o.v. should have been granted in the passenger’s suit and that his prayer to withdraw from the jury the issue of his contributory negligence should have been granted in his action. The Court of Appeals found error and reversed the judgment for the passenger against Mason and the judgment for the driver of the Ford in Mason’s suit. (Chief Judge Rrune and Judge Hammond, later Chief Judge, dissented.) On the issue of Mason’s negligence, the majority stated: "The appellees contend that several inferences of ¹⁸ negligence on the part of Mason can be drawn from the testimony and the physical