Great Coastal Express, Inc. v. Schruefer

Lowe, J., delivered the opinion of the Court. The widow, children and employer of the driver of a delivery truck which rear-ended a tractor-trailer that had ⁷⁰⁸ pulled onto the highway from the driveway of a truck stop moments before the collision, brought suit against the driver of the tractor-trailer and his employer. This is an appeal from the judgment of Judge John J. Mitchell, presiding without a jury in the Circuit Court for Montgomery County, in favor of the plaintiffs. The issue below turned on whether the tractor-trailer had entered the flow of traffic so as to excuse its driver from the rigid responsibility imposed by the “Boulevard Rule”.

Judge Mitchell decided that it had not. Appellants, who owned and operated the tractor-trailer, assign 9 errors on appeal. The first 2 appear to be little more than questions of the sufficiency of the evidence: “I. The lower Court erred in holding that Appellees ■ were entitled to recover in this case which involved a rear end collision and a violation by the decedent, George O. Schruefer, Jr., of the duty of proper control of his truck.

II

The lower Court erred in entering judgment in favor of the Appellees against Gerald Wayne Smith on his counterclaim against Appellees”. 1 In reviewing such’ questions, where a court sits without a jury, we are bound by Md. Rule 1086: “When an action has been tried by the lower court without a jury, this Court will review the case. upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” We have reviewed the evidence submitted by record extract and the comprehensive opinion of the trial judge. We do not ⁷⁰⁹ find him to have been clearly erroneous in his findings of fact and conclusions therefrom; to the contrary, we find his explanation so thorough and so convincing that we adopt that opinion as our own. Because appellants raised the issue of contributory negligence in their reply brief, we will interject here that our review of the evidence does not disclose evidence of contributory negligence so conclusive that the court should — or could — have found it as a matter of law. It therefore follows that we do not view the factfinder’s disbelief of such evidence as was presented, from which an inference of contributory negligence might have been drawn, as clearly erroneous.

We cannot improve upon Judge Mitchell’s factual articulation, and therefore we shall set it forth in full before responding to the remaining issues: “MEMORANDUM OPINION AND ORDER STATEMENT OF THE CASE This case arises out of a motor vehicle collision that occurred on June 13, 1974. The location of the fatal accident was on Maryland State Route 3 in Anne Arundel County near Millersville, Maryland. George Schruefer was operating a truck which collided with the rear end of a tractor-trailer unit owned by the defendant, Great Coastal Express, Inc. and being operated by its employee, Gerald Wayne Smith. Schruefer was killed instantly as a result of the collision.

His widow, Darlin Sue Schruefer, and two surviving infant children have brought this action seeking damages. They are joined by Travelers Insurance Company which seeks to recover certain Workmen’s Compensation benefits paid to the surviving widow, and Shasta Beverages, owner of the truck operated by the decedent, which looks to the defendant for the property damage and loss occasioned by the collision. ⁷¹⁰ Gerald Wayne Smith has filed a counter-claim seeking to recoup damages for the personal injuries he sustained, the resulting medical expenses, loss of wages, and pain and suffering. When this case came on for trial, all parties agreed to waive their prayers for a jury trial and a bench trial was conducted. QUESTION PRESENTED The question presents a very narrow issue.

The Court must determine whether the plaintiffs are entitled to the protection of the “Boulevard Rule” or whether the defendant and counterclaimant had left the confines of the ‘Boulevard Rule’ and had joined the ‘free flow of traffic.’ FINDINGS OF FACT AND CONCLUSIONS OF LA W The Court had the benefit of evidence presented through seventeen (17) witnesses; forty-five (45) exhibits; and two scholarly briefs of the law involved. From all of this, the following facts are found. George Schruefer and his widow, Darlin Sue Schruefer, were married unto each other in Baltimore, Maryland on February 14, 1968. Two children were born of this union, namely: Barbara Ann, presently six years of age, and Richard Lynn, presently eight years of age.

Barbara is a normal, pleasant, little girl. Richard is legally blind and is afflicted with spastic cerebral palsy and suffers a partial paralysis of the lower limbs (See Plaintiffs Exhibit No. 12). The decedent, George Schruefer, entered the employ of Shasta Beverages on April 3, 1973. After one month he became a driver-salesman and at the time of the fateful accident, he was in the course of his employment.

On June 13, 1974, at approximately three o’clock in the morning, George Schruefer arose and left his home in Bel Air, ⁷¹¹ Maryland. He drove to the Shasta plant in Baltimore, Maryland. He then boarded his Shasta truck to make a delivery of soft drinks to Andrews Air Force Base in southern Prince George’s County. His two-axle, 1973 Ford truck, unloaded, had a gross weight of fifteen thousand (15,000) pounds.

The truck’s carrying capacity is seven hundred seventy-one (771) cases and each case weighed twenty-three (23) pounds. The total gross weight of vehicle and load on the morning of the accident was thirty-two thousand seven hundred thirty-three (32,733) pounds. Schruefer had elected to drive in a southerly direction on Maryland State Route 3. Gerald Wayne Smith was an employee of Great Coastal Express, Inc. On June 12, 1974, he had driven a tractor-trailer unit from Richmond, Virginia to the metropolitan New York City-New York area and made certain deliveries.

He took on other materials to be delivered in Richmond, Virginia and after an appropriate rest resumed his journey eventually entering Maryland State Route 3. At or near Millersville, Anne Arundel County, Maryland, there is situated, on the west [sic] side of southbound Route 3, a transit truck stop. Mr. Smith stopped at this location some time about four o’clock in the morning and had some coffee. He then checked his tractor and trailer and was satisfied that all running lights were in operation.

He was operating a 1972 White Freight Line. The total overall length of his tractor and trailer was fifty-five (55) feet. The gross weight of the tractor, the trailer, and the cargo was sixty-four thousand eight hundred (64,800) pounds. The tractor had ten (10) forward speeds.

Mr. Smith chose to return to the southbound lanes of Route 3 by using the southern most exit from the truck stop. At this point Route 3 is a double laned, paved highway. The posted speed limit was fifty-five (55) miles per hour. To enter this boulevard from the truck stop, a ⁷¹² vehicle must cross a fourteen (14) foot shoulder to reach the paved road and then must turn left to enter the flow of traffic.

There are no overhead lights on the roadway at this point. One June 13, 1974, the air was clear and relatively balmy and the roads were dry. Prior to entering this boulevard, a driver, looking to his right from the point entered by Smith, can see to a crest of a hill. According to the investigating police officer, that crest is “four to five tenths of a mile.” A southbound vehicle approaching that crest finds that the roadway curves to the right.

Smith entered the roadway and told the police that he had gone one-half (1/2) of a mile when two tractor-trailer units passed him on his left and he was then struck in the rear end by the Shasta truck. Police Officer Robert Short of the Anne Arundel County Police Department arrived on the scene and conducted an investigation. He concluded from the location of the vehicles involved in the accident that the point of impact was two hundred fifty-two (252) feet from the southernmost point of the driveway used by Smith. The Court finds this to be conclusive.

Substantial damage was suffered by each vehicle and Schruefer was killed instantly. There were no skid marks on the road that would reflect that the brakes on the Schruefer vehicle had ever locked prior to impact. Smith said that from his vantage point in the driveway, that he could see a distance of one and on'e-half (1 1/2) miles. The Court finds that Smith could not observe this distance because of the terrain and the curve in the road.

Smith also testified that he was shifting into sixth gear and had attained a speed of approximately thirty-five to forty (35-40) miles per hour. There was further received a tape from a tachometer. The tape would seemingly reflect that Smith’s vehicle had attained this speed at the time of impact. ⁷¹³ The Court had the benefit of one Roy Smith who is a trucker and repairman of tractors and rigs. He had conducted a series of tests with a tractor and loaded rig comparable in horsepower, size, and weight to that of the Great Coastal Express vehicle being operated on the morning of the accident.

He testified that the maximum speed that could be attained was fifteen (15) miles per hour. He had conducted the test a dozen times. His testimony was far more persuasive than that of the defendants and the tape from the tachometer. More will be said of this tape at a later point.

The Court finds that the defendant’s rig was proceeding, at the time of the collision, at a speed of approximately fifteen (15) miles per hour. There was evidence presented by the defense through Mr. James Frankenfeld. He was driving a tractor and flatbed on the morning of the accident and observed the Shasta truck entering Route 3. He pulled to his left to permit the truck a clear entry.

He was driving his rig at a speed of fifty-five (55) miles per hour. He observed the Shasta truck approaching him from the rear and it appeared to be over the center line. He (Frankenfeld) reduced his speed to forty (40) miles per hour and moved to the right and the Shasta truck passed him at a speed of fifty-five (55) to sixty (60) miles an hour. The driver of the Shasta vehicle appeared to be slumped over.

Moments later, Frankenfeld came upon the accident scene; stopped and rendered aid. The Court finds as a fact that the Shasta truck was, at that point in time, proceeding at a speed of at least fifty-five (55) miles per hour. The proffer as to the operator being slumped over is mystifying. There was no evidence that Schruefer had consumed any alcoholic beverage prior to the accident.

In fact, his wife said he had not had any and the Medical Examiner found no evidence of alcohol in Schruefer’s system (See Plaintiffs ⁷¹⁴ Exhibit No. 1). It is a further fact that Dr. Irwin M. Sopher found that Schruefer’s cause of death to have been head and brain injuries. There is no suggestion that death resulted from any cardiac problem that arose prior to the collision. Therefore, the Court gives no particular significance to the testimony that Sehruefer was slumped over.

Such evidence simply had no probative value. Reduced to its simplest form, had the defendant’s vehicle entered the flow of traffic? The tachograph tape (Defendant’s Exhibit No. 16; a tachograph (Defendant’s Exhibit No. 17); and an instrument used to seal the tachograph and identified as Defendant’s Exhibit No. 18, were received into evidence over the objection of the plaintiffs. The tachograph is a mechanical instrument which is attached by wiring to the transmission of the tractor.

It is a timing and measuring device which, when in operation will record, on a tape, the stops, starts, distances travelled, and speed of the tractor. Defendants offered evidence through Robert M. Williams, its traffic manager, that a new tape is inserted in the tachograph when one of Coastal’s trucks goes on a run. The unit is sealed and the tape is removed when the vehicle returns. The manager then reviews the tape to check on speeds, stops, and the like.

As such, the Court concluded that the tape might be regarded as a record kept in the normal course of business (See Snyder v. Stouffer, 270 Md. 647 (1974)). As stated at trial, the tape would receive such weight as the Court would choose to give it. The Court has been unable to locate an appellate decision in this jurisdiction dealing with the tachograph. There have been rulings concerning this device in other jurisdictions, to-wit: Villegas, et al. v. Bryson, et al., 494 P. 2d 61 (1972); Bell, et al. v. Kroger Co., et al., 323 S.W.2d 424 (1959); Hall v. ⁷¹⁵ Dexter Gas Company, Inc., 170 So. 2d 796 (1964); Thompson v. Chicago and Eastern Illinois Railroad Co., 148 N.E.2d 151 (1961); Johnson v. New York Central Railroad Co., 97 N.W.2d 769 (1959); Cooper v. Hoeglund, 22 N.W.2d 450 (1946); Gulf Cobrado and Santa Fe Railroad Co. v. Parmer, 389 S.W.2d 558 (1965); Texas and N. O. Railroad Co. v. Lemke, 365 S.W.2d 148 (1963); Union Transports, Inc. v. Braun, 318 S. W. 927 (1958); Biggers v. Continental Bus Systems, Inc., 303 S.W.2d 359 (1957); and Whitten v. Central of Georgia Ry.

Co., 79 S.E.2d 331 (1953). There is also a delightfully informative article on the tachograph at 8 Wayne Law Review, 287 (1962) entitled, The Tachograph As Evidence of Speed. The defendants urge that this tachograph tape corroborates their theory that their vehicle had attained a speed of thirty-eight (38) miles per hour and thus, had joined the flow of traffic as defined in Kowalewski v. Carter, 11 Md. App. 182 (1971); Grue v. Collins, 237 Md. 150 (1964); Quinn Freight Lines v. Woods, 266 Md. 381 (1971). This being so, the defendants conclude that the plaintiffs lose benefit of the “Boulevard Law” and consequently must fail in their claim for damages because of the decedent’s contributory negligence.

This presumes, of course, that the recordings made by the tachograph were accurate. Maryland has long recognized that the speed of motor vehicles may be measured by radar (CJ § 10-301). The United States District Court for the District of Maryland in an Opinion by then Chief Judge Thomsen upheld the use of radar in George Dreos v. United States, 157 F. Supp. 200 (1957). In addressing the burden of proof on the government, the Court said: ‘It is sufficient to show that the equipment has been properly tested and checked, that it was manned by a competent operator, that proper operative procedures were ⁷¹⁶ followed, and that proper records were kept.’ at page 208 In Villegas v. Bryson, supra, the Court of Appeals of Arizona concluded that a tachographic tape is competent evidence of speed if the tape is properly identified and authenticated.

However, that Court concluded at page 62 that: ‘(t)he tachograph recording must be identified and duly authenticated which should include proof that the particular instrument relied upon was in good working order and accurate at the time the recording was made.’ (Emphasis Supplied) Plaintiffs produced evidence through the deposition of Robert M. Williams, manager for the defendant corporation, that at the time of the collision, the defendant’s tractor had attained an odometer reading of two hundred sixty-five thousand (265,000) miles. Some adjustment had been made to the tachograph at one hundred eighty-six thousand, three hundred twenty-six (186,326) miles. The tachograph was never, to the knowledge of the witness, calibrated either before or after the collision. In short, this Court concludes that the tape is not worthy of belief because it fails to meet the standards recited in Dreos and Villegas, supra.

Of more persuasion is the evidence of the trucker and repairman, Roy Smith. Over the objections of the defense, the witness was permitted to testify as to the results of certain experiments he had conducted on the site of this accident. Our Court of Appeals has said that if an experiment is conducted outside the courtroom, it must be done under circumstances and conditions similar to those of the case at hand if the experiment is to be received in evidence (Smith v. State Road Commission, 240 Md. 525, 537 (1965) and cases cited therein). The ⁷¹⁷ experiment conducted by Smith was with a tractor of a similar type as the Great Coastal tractor; a rig and load of similar weight; and operating from the same driveway exit used by Great Coastal on the morning of the accident.

The unit was driven into the same lane as that used by Great Coastal and the only material difference was that Route 3 had a new coating of blacktop applied since the accident. The experiments were conducted for the sole purpose of showing the maximum speed and gear that could be accomplished by this unit within a distance of three hundred and seven (307) feet from the point where the Great Coastal Express rig entered Route 3. The Court is satisfied that the Great Coastal Express rig could have attained fourth (4th) gear and a maximum speed of fifteen (15) miles per hour at the point of impact. The Court is persuaded of this fact because the experiment was conducted several times.

The witness, Roy Smith, displayed a good demeanor. He gave good, conclusive reasons for his findings and the Court makes this finding as a matter of fact. There was no explanation given in evidence to enlighten the Court as to why the deceased driver’s vehicle did not reflect any locking of brakes and wheels that would result in skidmarks on the roadway. Absent evidence the reasons would be idle speculation.

This lack of evidence alone will not be of sufficient quality to find the deceased to have been contributorily negligent. The presumption of the natural instinct to guard against danger is proper to consider in this area (See Baltimore Transit Company v. Castandra, 194 Md. 421, 434 (1950)). This then brings us to the determination of liability. I am not convinced that the defendant’s rig had, in fact, entered the flow of traffic so as to escape the restrictions of the ‘Boulevard Rule.’ ⁷¹⁸ While the defendant’s rig was, in fact, fifty-five (55) feet in overall length, one must surmise that the front end of the Coastal tractor had attained only five and one half (5 1/2) vehicle lengths on a road designated to expedite the flow of traffic at speeds of fifty-five (55) miles per hour.

The speed of the vehicle of Shasta Beverage simply is not considered. The proximate cause of the accident was the negligence of the defendants in impeding the traffic on the boulevard [Hensel v. Beckward, 273 Md. 426 (1974), Creaser v. Owens, 267 Md. 238 (1972)]. Even as the Court of Appeals referred to the ‘Rock of Gibraltar’ in Hensel, supra, this Court finds that the mandates of the ‘Boulevard Rule’ must stand; and absent a legislative directive, it shall not be compelled to take into consideration the calculations of speed and distances. A judgment shall be entered in favor of the plaintiffs and the defendant Smith’s counter-claim shall be dismissed.

DAMAGES Many of the damages claimed, such as the subrogation claim of the Travelers Insurance Company and Shasta Beverage are liquidated and have been stipulated. The more troublesome area lies in a fair and reasonable determination of what the defendants must pay for the ‘Piece of the Rock’ that they have purchased. The deceased was married to the plaintiff-widow, the father of two children, and the total source of income for the family. Evidence showed him to have been a normal, healthy male with a life expectancy, at the time of his death, of forty-six (46) more years.

Evidence adduced from Dr. Herman P. Miller, an economist and statistician, showed that Mr. Schruefer would have had a work-life expectancy of thirty-seven (37) years. His ⁷¹⁹ income for the -several months prior to his death was Seven Thousand Thirty-six Dollars ($7,036.00) and for that taxable year was projected to Fifteen Thousand Five Hundred Dollars ($15,500.00). Evidence of fringe benefits received and that would be received was received by the Court. There is then to be considered the loss of society and companionship suffered by the plaintiff, Darlin Sue Schruefer, as a result of the untimely death of her husband, George Schruefer.

The plaintiff was described as a family man. He had served with the Bel Air Rescue Squad and was recognized in the year preceding his demise as their man of the year. Closer to the family, he labored with his son seeking to strengthen that child’s afflicted body through therapy and exercise. Uncontradicted evidence showed that he devoted up to two hours per day in this endeavor.

He played with his children; aided them in their homework; did simple chores and repairs about the marital home and otherwise led a wholesome, if modest, lifestyle. Testimony showed Mr. Schruefer’s needs in material matters to be few and extravagancies to be non-existent. An occasional movie or a meal out would apparently constitute the extravagance. The deceased was a basic family man, a good husband and a loving and doting father.

What award of damages can attempt to replace the life of this man in the lives of his widow and children? After extensive direct testimony and cross-examination, Dr. Miller gave evidence that an award of Three Hundred and Three Thousand, Seven Hundred Eighty-eight Dollars ($303,788.00) would fairly compensate the plaintiff, Darlin Sue Schruefer, for the income that she would lose as a result of George Schruefer’s demise. This does not take into account the loss of companionship, love, affection, and other ⁷²⁰ intangibles that are to be identified as the assets of a good marriage. Again, the Court must attempt to fairly compensate