Gavin v. Tinkler

Urner, J., delivered the opinion of the Court. The personal injuries on account of which the plaintiff obtained a judgment, on the verdict of a jury, were suffered in consequence of a collision which occurred at ⁴⁶³ night when the driver of a motor truck, who was accompanied by the plaintiff, attempted to pass the defendant’s truck from the rear. The principal questions raised at the trial were whether there was legally sufficient evidence of primary negligence on the part of the defendant’s truck driver, and whether contributory negligence of the plaintiff was conclusively proved. When the accident happened, the two trucks involved in it were proceeding northwardly on the Reisterstown Road through the village of Delight.

The roadway is of concrete and forty feet wide. It is divided by painted lines into four traffic lanes of equal width, two for northbound, and two for southbound, traffic. The central line is white, and the parallel lines to the east and west of the center are yellow. At the village of Delight the Reisterstown Road is intersected by another highway.

It was testified by the driver of the defendant’s truck that, as he approached the intersection, he drove from the outer into the inner northbound traffic lane, with a view to the possible necessity of making a turn to the west at that point. Having found, when he reached the intersection, that it was not the proper place for him to make such a deviation, he was proceeding, as he said, to return to the outer traffic lane, when the rear of his truck received a heavy impact. According to his testimony, he heard no warning signal from the colliding truck, and its approach was not reflected in his rear-vision mirror, and he did not know what caused the collision until he got out of his truck and went back to investigate. The other truck was driven by Elias W. Fowble, a storekeeper and trucker, who was returning from the delivery of a load of peas in Baltimore, and who had invited the plaintiff to accompany him on the trip.

Mr. Fowble was fatally injured in the accident. From the plaintiff’s testimony in chief we quote the-following: “As you are going north on this road before you get to the Delight Road you come to the top of a hill. The crest of that hill is four hundred feet from the Delight Road. ⁴⁶⁴ I first saw the Gavin (defendant’s) truck just at the top of that hill. * * * “Q. When you reached the crest of that hill and saw the Gavin truck ahead of you, how far ahead of you was the Gavin truck? A. I judge about forty feet. “Q. Which lane was the Gavin truck traveling in at that time?

A. In the righthand lane. “Q. For northbound traffic? A. Yes, sir. “Q. Which lane was Mr. Fowble traveling in at that time? A. In practically the same lane of traffic. * * * “Q. How fast was he driving? A. I could not say.

I did not look at the speedometer; he had not drove over twenty miles. * * * “Q. When you came to the crest of the hill and started down grade towards the Delight Road tell the jury just what you observed as to the operation of the two trucks ? A. When we approached the intersection there where the lines end on the road for the Delight Road to make the turn, Mr. Fowble was driving the truck of course—after they had crossed over that he blowed his horn and pulled to the left to go around and at that time, the other truck made a left turn and Mr. Fowble turned to the right so he would avoid the accident to go on the right. That is as far as I know.” The Gavin truck, as the plaintiff testified, was then beyond the intersection. His testimony then continued in part: “Q. Tell us again what Mr. Gavin’s truck did after Mr. Fowble blew and pulled to the left.

A. He turned left as if he was going to make a left-hand turn in the road. “Q. What signal, if any, did the driver of Mr. Gavin’s truck give? A. None at all. “Q. What did Mr. Fowble do after the Gavin truck turned to the left? A. He put on his brakes and turned to the right. “Q. Then what happened ? A. Then the impact. “Do you remember anything else?

A. No, sir. “Q. When do you next remember anything. A. In the hospital.” ⁴⁶⁵ On cross-examination the plaintiff was questioned as to previous statements by him to the effect that before the defendant’s truck made a definite turn to the left it was bearing to the left across the yellow line between the two northbound traffic lanes, and as to his divergent estimates of the distance at which the defendant’s truck first came within his observation. In the course of his cross-examination the plaintiff testified that, after the Gavin truck had reached the farther side of the intersection, he and Mr. Fowble both remarked that it would not make a left turn there, and that consequently they could pass it in safety, and further testified that the front of the Fowble truck had come abreast of the rear end of the Gavin truck when the latter made the turning movement to the left which caused Mr. Fowble to swerve his car to the right in the unsuccessful effort to avoid the collision. If the accident occurred as described by the plaintiff in his testimony, it was unquestionably attributable to negligence on the