Kidd v. Chissell

UbNee., J., delivered the opinion of the Court. At the trial of this suit for personal injuries, resulting from an .automobile accident, the plaintiff testified that, as the car which she and several companions occupied was moving southwardly at the intersection of Guilford Avenue and 23rd Street in Baltimore, it was struck on the left side by the defendant’s.oar, approaching from the east, and was diverted by the impact to the sidewalk and against a building. Both cars were moving at a moderate rate of speed according to the plaintiff’s testimony. The accident occurred in the day time, and the occupants of each oar readily observed the movement of the other as they neared the point where their lines of progress would cross.

It was assumed by the plaintiff, and by her sister who was driving -their car, that they had the right of way and that it would be duly recognized by the defendant in approaching with his oar from, the left. An alleged'violation of that right is the primary ground of ¹⁷¹ the liability asserted in this action. In the pleadings and proof the defendant was also sought to be charged with responsibility, apart from the effect of the right of way rule, on the theory that he could have avoided the collision, by the exercise of due care, after he became aware of its intaninence. The plaintiff’s description of the accident was corroborated by other testimony, but a wholly different version wast given by the defendant and his witnesses.

They testified that he actually conceded the right of way to the other1 car and allowed it to pass before be proceeded beyond the center line of Guilford Avenue, and that the two cars never came in contact with each other, but that the plaintiff’s sister, operating their automobile at a high rate of speed, suddenly made it .swerve to the right and towards the corner building because sbe became startled by the near approach of the defendant’s automobile. The conflicting theories presented by the evidence were submitted to the jury by certain instructions which made no* reference to the right of way. But other instructions, granted at the defendant’s request, informed the jury that he was entitled to the right of way at the time of the accident if, as proved without dispute by the evidence, he was .a duly registered physician and held a right of way permit issued by the City Police Department. In thus restricting the plaintiff’s possible ground of recovery the trial court gave effect to an ordinance of the Mayor and City Council of Baltimore, enacted in 1908, which, provides: “The officers and men of the Fire Department, with their fire apparatus of all kinds, when going to, or on duty, at or returning from a fire, and all ambulances, and the officers and men and vehicles of the Police Department and all physicians who have a police permit (as hereinafter provided) shall have the right of way in any street and through any procession, except over vehicles carrying the United States mail.

The Police Department is hereby empowered to issue upon application therefor a permit for such right of way to any duly registered physician, which permit shall not he transferable.” ¹⁷² Objection to the instructions based on this ordinance was made on the theory that it was not intended, so far as physicians are concerned, to affect the right of precedence at street intersections, now regulated by the general law of the State (Acts of 1920, ch. 506, Code, art. 56, sec. 163), but that if the ordinance was designed to have such an application, it is inoperative because in conflict with the statute and is invalid as an unreasonble exercise of municipal authority. This contention is renewed on appeal from a judgment entered on a verdict for the defendant, which is attributed by the plaintiff to the instructions on the subject of the right of way. The statute referred to provides, in part: “All vehicles shall have the right of way over other vehicles approaching at intersecting, roads from the left, and shall give right of way to those approaching from the right.” This is one of the Code provisions, relating to. motor vehicles, which are “intended to be state wide in their effect,” but which reserve the right to incorporated cities and towns to “prescribe and enforce reasonable trafile regulations * * * applicable to all vehicular traffic, motor vehicles included * * *” Code, art. 56, sec. 133. In the recent case of State v. Brown, 142 Md. 27, the Baltimore ordinance which we have quoted was held to' be a valid exercise of the police power delegated to the municipality, as against a challenge of its validity made by demurrer to an indictment for the violation of the right of way allowed by the ordinance to an ambulance using the city streets.

It was said, in the opinion delivered in that case by Judge Stock-bridge, to be the purpose of the ordinance that “fire apparatus, ambulances, police vehicles and the vehicles of physicians who had registered with and been given special privileges” by the police department, of the city, should be exempted from the statutory rule requiring motor vehicles “to yield the right of way to other vehicles