Frisoen v. Trapp

Singley, J., delivered the opinion of the Court. Some years ago, Russell Street, which traverses what is primarily an industrial area in southwest Baltimore, ⁶³⁰ was widened and rebuilt in order to provide access from the center of the city to the Baltimore-Washington Parkway. Russell Street is now a six lane highway, part of which is elevated over railroad tracks and streets which formerly intersected it. The accident which gave rise to this litigation occurred on one of the elevated portions of the street, and would appear to lend credence to the dogma that ordinarily bridges freeze before highways.

The appellants, who were plaintiffs below, Hosie Frisoen, Ella Smith and Constance Myers, were passengers in a small panel truck which had been leased by the appellee and defendant below, William H. Muller, Jr., trading as William H. Muller, Jr. Company, from Avis Rent-A-Car Systems, Inc. (Avis), and was being driven by the appellee-defendant, Leroy Trapp. Suit was brought against Trapp and Muller for damages for the injuries sustained by the plaintiffs when the truck hit the railing of the Russell Street bridge. 1 The case came on for trial in the Superior Court of Baltimore City (Sodaro, J.) without a jury. At the conclusion of the plaintiffs’ case, the defendants moved to dismiss. When this motion was denied, neither Trapp nor Muller offered evidence.

From a judgment in favor of Trapp and Muller, this appeal was taken. From the frequently imprecise and sometimes conflicting testimony, the court could have found the following-facts. Trapp had been employed by Muller for about 12 years on an irregular basis as a driver-helper, and was so employed on 23 December 1966, the day of the accident, driving the small panel truck which was involved in the accident. Muller had another, and larger truck, also rented from Avis, driven by another driver, Finney, which had to be returned to the Avis lot at Washington Boulevard and Monroe Street for the night.

At the end of the day, Trapp returned to Muller’s place ⁶³¹ of business where Ella Smith and Constance Myers were waiting. Trapp had agreed to take them to his mother’s house in West Baltimore to pick up some Christmas tree ornaments. Muller suggested that Trapp wait until Finney returned and then follow Finney to the Avis lot, where Finney would take over the small truck and deliver Trapp and his friends to their destination. On their way to the Avis lot, Trapp and his companions picked up Hosie Frisoen, whom they encountered by chance on the street.

It would appear that it had begun to snow and drizzle while Trapp was waiting for Finney. The testimony is conflicting as to whether it was snowing when the truck reached Russell Street. Trapp, called as an adverse witness by the plaintiffs, testified that his speed was about 45 miles per hour; that there was not too much traffic; that there was a car “about 20 feet, 50, something like that” in front of him, and that the car ahead put on its stoplights. When Trapp applied his brakes he said his car commenced to skid.

He said: “The road wasn’t slippery but the bridge was. I didn’t realize that until I started skidding * * *. I stepped on my brakes, which I thought I was easing on them, and started skidding and Mrs. Myers said, ‘Leroy, stop playing.’ I said T am not playing I am trying to get this thing straight’. So we spun all the way around and headed for the bridge, and I stepped on the accelerator to stop the spin, because if we didn’t and we hit the bridge right on as we did, we hit it on a glance.” The panel truck struck the bridge railing.

Trapp’s three passengers were injured, but he was not. In an opinion delivered from the bench at the conclusion of the case,