Johnson v. Dortch

Moore, J., delivered the opinion of the Court. The correlative rights and duties of motorists under Maryland’s Boulevard Rule * . 1 are again before us, this time in the startling context of the favored driver’s alleged — intoxication ⁶⁰⁷ — excessive speed — driving at night without headlights, and — operating on the wrong side of the road. The accident occurred in Baltimore City at a “T” intersection when the unfavored driver was negotiating a right-hand turn. Essentially because the unfavored driver failed to see the favored driver — where the evidence led the trial court to find that had he looked, he would have seen — the Court held the Boulevard Rule applicable and granted the favored driver’s motion for a directed verdict at the close of all the evidence.

We affirm. * 2 I On Saturday night, February 24, 1973, at 11:45 p.m., John T. Johnson, Jr. (plaintiff-appellant), age 19, was driving home with his fiance, on Riverside Avenue, a one-way southbound street with two parking lanes on either side and one travelling lane. It formed a “T” intersection with Randall Street — the “boulevard” — consisting of four lanes going east and west, with one parking lane in each direction. Stop signs controlled Riverside Avenue at its dead-end with Randall Street. Shortly before 11:45 p.m., Willie Edward Dortch (defendant-appellee) left Skip’s Tavern, located a few blocks from the intersection of Randall Street and Riverside Avenue.

He had gone to the tavern at 9:30 p.m. and was ⁶⁰⁸ returning to his home, operating his vehicle in an easterly direction on Randall. He testified that, as he approached Riverside Avenue he saw Johnson’s car coming: “I saw the headlights and presumed he was going to stop. He didn’t stop. He came out and he made a swing to make a righthand turn.

He came on my side of the street and that’s where the impact happened, and I slid, I imagine 10 feet after I hit him.” “I put on brakes and I turned to the right trying to miss him, and the cars were parked on the lefthand side of the street, and I couldn’t go no farther and miss him without hitting the parked cars.” Appellant Johnson’s version was different. He testified: “Well, I was coming up Riverside Avenue to Riverside, I stopped there — I mean Randall. I stopped there at Randall at the stop sign and looked both ways twice. So, when I started to go out — when I started to make my right turn, it was about a — well, I didn’t see nothing coming, so I started to turn and right — I didn’t make my full complete turn when Mr. Dortch hit me.” Upon further interrogation, on direct and cross-examination, Mr. Johnson stated that Mr. Dortch was travelling in the wrong lane (a westbound lane, instead of eastbound) and was operating without headlights; that at the time of impact, about one-half of Johnson’s vehicle was still in the bed of Riverside Avenue and that he saw Dortch’s car “about a couple of seconds before he hit me” and that it was then “about a foot away.” Despite this short period of observation, he estimated Dortch’s speed at 30 to 35 miles per hour, in a 25-mile zone.

His own speed in making the right-hand turn, appellant testified, was about 3 miles per hour. ⁶⁰⁹ Asked what he observed on Randall Street before making his turn, appellant responded: “A I didn’t see nothing. The traffic was — traffic was clear. Q Did — could you see the roadway all the way downl A Yes. Q All the way down the next intersection?

A Yes. sir. Q And you didn’t see Mr. Dortch’s car coming? A No, sir. Q Then, you turned and looked to your left?

A Yes, sir. Q Approximately how long did you look to your left? A Long enough to see the traffic was clear. Q Then, what did you do?

A When I seen the traffic was clear I started making my turn. Q But, did you look back to your right again? A Yes. Q When you looked back to your right again, could you see all the way down to the next corner 1 .

A Yes, sir. Q What did you seel A Nothing. Q Then, what did you do? A I started making my turn.

Q And did you see Mr. Dortch’s car at all before you came in contact with itl A A bout a couple of seconds before he hit me. Q How far was his car from your car when you first saw itl A Say about afoot.” (Emphasis added.) The investigating police officer, William Council, on the ⁶¹⁰ basis of the positions of the vehicles and the presence of debris in the road after the accident, corroborated the testimony of the appellant that Mr. Dortch was on the wrong side of the street when the collision occurred. Both appellant and Officer Council smelled alcohol on the breath of appellee and the officer stated that based on his observation of appellee’s slurred speech, sleepy attitude and swaying walk, he was intoxicated. Appellee was also given a breatholizer examination one hour later which registered a .24 percent blood alcohol reading. 3 Appellee stated that he had consumed only 3 or 4 beers at the Tavern (although he had answered interrogatories admitting having 6 beers).

The chemist who administered the breatholizer test was of the opinion that based on the alcoholic content of beer sold in Maryland and the necessary time for the metabolism of alcohol, “it would take much more than six beers to make a .24 percent blood alcohol.” The Johnson vehicle was inoperable after the accident and the damages were estimated at $356.00. The damage to the Dortch vehicle was estimated at $401.80. 4 Mr. Dortch was unhurt. Appellant Johnson was unaware of any personal injuries immediately after the accident. The next day, however, pursuant to arrangements made by his father, he was examined and x-rayed at the Emergency Room of South Baltimore Hospital.

Thereafter, he came under the care of Dr. Arthur Serpick, an internist, and was also examined by Dr. Cohen, an orthopedic surgeon. The diagnosis was permanent chronic lumbar sprain. 5 ⁶¹¹ At the conclusion of oral argument on motions for directed verdicts at the conclusion of all the evidence, Judge Dorf made the following ruling 6 in favor of appellee Dortch which has given rise to this appeal: “I have to go back to the record, that the unfavored driver in his testimony said that number one, he was — he could see all the way down the street. Number two, he looked to his right. Number three, he looked twice and he looked to his right again, looked to his right for the minutes, he did not see another car on the street up to the next intersection.

He did not see the other car coming. He saw nothing. He made his turn. The vehicle was one foot away when he first saw it.

He said, I saw him a couple of seconds before he hit me. Now, I think it’s clear that if, in fact, the vehicle was on the highway and obviously, he is on the highway. Obviously, it just didn’t jump up from the ground. If, in fact, the person on the unfavored highway had looked — if, in fact, he had looked properly, under the Boulevard Law, he had to see the vehicle coming down before it was one foot away, and if he didn’t see the vehicle before it was one foot away, it was became he didn’t look, and if he didn’t look, he was guilty of violation of Boulevard Law.” (Emphasis added.) II The facts of the case and the inferences fairly deducible therefrom considered — as they must be — in the light most favorable to Mr. Johnson, Wood v. Abell, 268 Md. 214, 230 , 300 A.2d 665 (1973), reveal that the favored driver, Mr. ⁶¹² Dortch, was guilty of four separate, serious traffic violations: driving while intoxicated, speeding, operating without headlights and driving on the wrong side of the street.

The narrow question on this appeal is whether these malefactions of the favored driver relieved appellant, the unfavored driver, “of the heavy responsibility placed on him by the stringent requirements of this [Boulevard] law.” (Emphasis added.) Creaser v. Owens, supra, 267 Md. at 243. In Creaser, after reviewing more than fifty opinions of the Court of Appeals in which the Boulevard Rule had been involved, the Court of Appeals held that neither excessive speed by the favored driver nor the obstructed vision of the unfavored driver (a Montgomery County school bus operator), whose view was impaired by a hill and a curve in the road and by a bank, trees and bushes, was an excuse for the failure of the unfavored driver to yield the right-of-way. Judge Digges, writing for the Court explained: “The essence of these decisions, when distilled to their purest form, leaves no doubt that the duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored road and the driver on the favored highway has a right to assume that he will do so.” The Court conceded that the Boulevard Rule “is exacting and sometimes may seem harsh” (pp. 245-6) but held that if its meaning and application are to be changed, only the Legislature may do so. The hope expressed in Creaser that the Court’s stern application of the Boulevard Rule to the facts there presented, as well as its explication of the Rule, would discourage “attempts to create new exceptions to it” were declared to have been “dashed” when Hensel v. Beckward, supra, n. 6, came before the Court two years later.

There, the collision occurred in Allegany County on a moonless night at an unilluminated intersection of Vocke Road, a four-lane divided highway, and Maryland Route 49, a two-lane highway. A stop sign controlled entry onto Vocke Road. Mr. ⁶¹³ Beckward and his wife, proceeding on Route 49, stopped at the stop sign and each looked twice for traffic on Vocke Road. Seeing none, they “began to drive very slowly” across the first two lanes of Vocke Road when they suddenly saw the favored vehicle about 20 to 25 feet away, approaching them at a fast rate of speed, mtk unlit headlights.

The collision which followed resulted in Mr. Beckward’s being hospitalized and suffering permanent paralysis from the neck down. Despite the egregious conduct of the favored driver in Hensel in speeding and not having his lights on, the Court of Appeals held that the boulevard rule required that a directed verdict in his favor be granted because the conduct of the unfavored driver in proceeding, albeit cautiously, onto Vocke Road amounted to contributory negligence as a matter of law. In reaching this result the Court relied primarily on its prior decision in Creaser. Again writing for the Court, Judge Digges stated that “once again we are faced with a case in which the application of the ‘boulevard rule’ is sought to be avoided.” The Court quickly added (273 Md. at 427): “Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.” 7 Encapsulating numerous prior cases, the Court came down flatly in this statement of their effect (p. 431): “This large group of previous cases makes clear that when the unfavored driver sues, the ‘boulevard rule’ barring his recovery applies to an accident which occurs between an unfavored driver and the favored motorist on the ‘boulevard’, either in the intersection or at a point, though technically outside the intersection, so close