Ghiradello v. Malina

Prescott, C. J., delivered the opinion of the Court. We are, again, presented with a case involving the rights of way of the operators of two motor vehicles, arriving at an uncontrolled intersection at, or about, the same time. After an ⁵⁰¹ adverse jury verdict and the entry of judgment for costs against him, the plaintiff-appellant appeals. He states his contentions as follows: 1. “Did the Court err in its instructions to the jury by: (a) Misstating the rule of right of way ?

(b) Giving instructions which had no relation to the factual situation presented by the case at bar ? 2. “Did the Court err in its general charge to the jury by: (a) Confusing the jury regarding contributory negligence ? (b) Its over-emphasis concerning the right-of-way not being absolute? (c) Instructing the jury with qualifications of the right-of-way law that had no relevance to the facts of the case at bar?” The testimony was not voluminous. Appellant, a 58 year old millwright, stated that on February 16, 1963, at about 6:00 p.m., he was driving his automobile in the City of Baltimore.

He proceeded west on St. Helena Avenue until he arrived at Central Avenue, a one-way street south, about 17 feet wide. He “had to jump the curb [7 inches high] to make a turn” south on Central. Parking is permissible on the west side of Central, and cars were parked thereon. He proceeded south on Central in low gear (at about 8 to 10 miles per hour) until he reached an alley some 135 feet north of where the collision took place.

Here he shifted into second gear and was accelerating his speed (still in second gear) until he arrived at the intersection of Central with Patapsco Avenue where the collision occurred. As he approached Patapsco, his vision to the left on Patapsco was obscured by a fence and hedge about 42 inches high (there was also a house standing near the corner). I-Ie entered the intersection where the “manhole is at * * * you got to go that far to see anything coming [from his left] on account of that hedge. * * *. You have to pass the hedge to see what’s coming.” (The pictures offered as exhibits show that the manhole is well out into the intersection.) When ⁵⁰² he arrived at the intersection, his vehicle was traveling 15 to 17 miles per hour, and he was just about to shift into high gear.

He said: “I told you I was going about 17 miles an hour. I was going pretty fast, that’s for sure.” Upon reaching the intersection, he first looked to his right, “then I looked to my left,” but “it was too late—she [defendant-appellee] was on top of me already [‘a couple of feet away’] and she struck me.” When he saw her, he “slammed” on his brakes and stopped in a very short distance. She “sideswiped” him and brought her car to a stop some 2car lengths beyond. At the time of the accident, it was “just starting to get dark,” and he had his “little low lights” on, which he explained were his cowl lights.

Appellant produced a Mrs. Weimer, who said she was in her home located on the northwest corner of the intersection. It was “getting dusk” at the time of the accident but it was not “dark.” She saw appellant proceeding slowly south on Central and heard “the gunning of [appellee’s] car motor.” Appellant “had his lower lights” on, but appellee did not have “any on.” She estimated appellee’s speed at 30 to 35 miles an hour. The point of impact was “not quite the middle of the intersection [a little more towards the north and west of the center thereof] .” The hedge referred to above runs down to and meets the sidewalk. Appellee, a 16 year old girl, stated that she left a parking ,space in the block of Patapsco Avenue immediately east of Central, where she had been visiting relatives, at a time when it was dark (also she stated, “it was getting pretty dark”).

She put on her headlights, started the motor, and pulled away from the curb. When she reached Central, she was still in low gear, going between 5 and 10 miles an hour. On her right was a house near the corner and a hedge, and a car was parked a short distance from the intersection on Patapsco. When she reached a point about 1 car lengths from Central, she could see the street lights on the corner of St. Helena (the street immediately north of Patapsco) and the lights on McMahon’s Bar.

Arriving at Central, she looked to her right for traffic and saw none; so she proceeded into the intersection, still looking to her right. When she “got near the middle of the intersection” her passenger, another girl, yelled, “There’s a car coming.” Then, still ⁵⁰³ looking to her right, she, for the first time and only by the aid of the street light, observed appellant’s vehicle, traveling in the left lane of Central Avenue. It was about 10 feet away and had no lights on it. His car smashed into the right side of her automobile, and she “sort of” lost control for a few seconds, but brought her car to a stop at the corner on the other side.

When appellant entered the intersection, he was coming “fast,” and she had already just about “entered the middle of the street.” After inquiring of appellant as to whether or not he was injured, she telephoned her parents and for the police. Her testimony was corroborated in almost every detail by her passenger, a Miss Barranco. The picture-exhibits confirm the witnesses’ description of a dangerous and hazardous intersection. The streets are narrow, with houses built close to its corners, and the hedge, prominently mentioned above, certainly does not detract from the difficulties of a motorist in attempting its crossing.

From the above, it is readily seen that the testimony was conflicting. The fact that appellant was proceeding on the left side of a narrow one-way street into an extremely dangerous intersection where his view of traffic approaching from his left was obscured, and the respective claims of darkness and light, and of lights and no lights, etc., make it clear that factors are here involved which do not occur in all accident-at-intersections cases. I (a) Appellant picks out an excerpt from the trial judge’s rather lengthy and able instructions and strongly assails the same. The excerpt follows: “I instruct you that although a driver has the right of way, he should proceed, as I have stated, at a lawful rate of speed, keep his car under control so that he can stop on short notice, and look carefully ahead to avoid injury to any others approaching at the intersecting street, and that he is not, because of the right of way statute, which statute looks to the general welfare and safety of others as well as himself, alto ⁵⁰⁴ gether relieved of the necessity of observing the condition of the road to his left with a view of ascertaining whether or not the road is clear and free of vehicles or persons approaching from that direction.” Appellant argues that this instruction was “compiled from several of the so-called ‘unfavored’ driver cases, that is, cases that have arisen in situations where the ‘unfavored’ driver has brought suit against the ‘favored’ driver, alleging that the right of way rule is not an absolute rule of the road * * Relying very heavily upon Rabinovitz v. Kilner, 206 Md. 455 , he claims that this instruction had no application to the facts involved here, and hence amounted to no more than an abstract statement of the law, which was condemned in Rabinovitz .

He contends that he was the “favored” driver and the instruction tended to negate completely the right of way law, Code (1957), Article 66)4, Section 231, “as applied to the case at bar,” and further asserts that he could not be found guilty of negligence, even if he failed to look to his left, for if he had looked and seen appellee approaching him, he would have had a right to have assumed that she would yield the right of way, citing Nardone v. Underwood, 219 Md. 326 . It is true that the previous decisions of this Court resolving the respective rights and obligations of motorists who had been involved in accidents at uncontrolled intersections disclose some rather complex and close factual situations; however, we do not deem it advisable to attempt to write a treatise on the subject-law (compare Chief Justice Warren’s comment on the opinion in Culombe v. Connecticut, 367 U. S. 635 ), or to attempt to lay down a rule so comprehensive in nature that it will cover all of the conceivable circumstances that may attend collisions at uncontrolled intersections, or to review all of our previous decisions in great detail, for Messrs. Due and Bishop have done so down until 1950 in an able and comprehensive manner in 11 Md. L. Rev. 159 , and Judge Hammond, for the Court, in Rabinovitz, supra, did likewise, accepting many of the conclusions reached in the law review article. Eor present purposes, it will suffice to mention the statutes involved, a few of this Court’s previous holdings, and add, in proper places, other decisions if, and when, desirable. ⁵⁰⁵ The heart of appellant’s contention here is Section 231, mentioned above.

In substance, it provides that at all uncontrolled intersections vehicles shall have the right of way over other vehicles “approaching at intersecting public roads from the left,” and shall give the right of way to those approaching from the right. Without delving into all of the niceties of the qualifications placed upon the “right of way” created by this statute by some of the decisions (compare Warner v. Markoe, 171 Md. 351 ; Askin v. Long, 176 Md. 545 ; Bode v. Coal Co., 172 Md. 406 ; and the numerous cases cited on pp. 378, 380 of Thomsen, A Classified Index of Motor Vehicle Cases [3rd ed.]), this Court has held on numerous occasions that such right of way is not an absolute one. See, for examples Creamery Co. v. Friedman, 160 Md. 526, 530 ; Jersey Ice Cream Co. v. Bach, 161 Md. 285, 292 ; Rabinovitz v. Kilner, supra. It comes, into play only when two drivers come to the crossing in such proximity in point of time as to require accommodation of one by the other.

Warner v. Markoe, 171 Md. 351 . The Court has stated that the right of way law gives “only a relative right dependent upon the circumstances of each particular case * * Bush v. Mohrlein, 191 Md. 418 . It has also stated that in every case where the facts are in dispute, “it is a question of fact, whether a vehicle approaching from the right is near enough to be entitled to the right of way. * * *. There is no doubt that the cases [this Court’s] hold this, as well as that the favored driver is not relieved from the duty of using reasonable care to avoid a collision.

He must proceed at a lawful rate of speed, keep his car under control, and be careful to avoid injury to others. * * *. All questions of fact, such as speed, diligence of observation and the relative positions of the cars at various times are, of course, for the jury. [And, in order to recover against the driver approaching from the left] The favored driver must satisfy the jury that he was free from negligence under the tests of the cases.” Rabinovitz, supra. In this last mentioned case, the Court held that a driver approaching an intersection from the right was entitled to have the jury instructed, in substance, of what was contained in two of his requested, but denied, prayers: one asked that if his and the defendant’s vehicles “arrived at the same time at the intersection, then the appel ⁵⁰⁶ lant’s vehicle had the right of way and the appellee’s vehicle should have yielded;” [etc.]; the other was similar in form, but was premised upon a finding by the jury that his vehicle, approaching from the right, had entered the intersection ahead of