Knisley v. Keller

Powers, J., delivered the opinion of the Court. Milton Knisley, a gravedigger at a cemetery on Belair Road in Baltimore was crossing that road between intersections at about 9:00 P.M. on May 30, 1967 when- he was struck and injured by a car driven by Charles J. Keller. Knisley and his wife sued Keller in the Superior Court of Baltimore City, and removed the case to Baltimore County. There Judge Turnbull granted Keller’s motion for summary judgment and the Knisleys appealed.

Factual, information before the court on. the motion was contained in testimony given in the Superior Court on a preliminary matter by the investigating officer, Leon K. Gray, by Knisley, by Keller and by Eleanor Myers, an eyewitness, and in depositions of David B. Ehatt, an eye ²⁷¹ witness, by Knisley and his wife, and by Mrs. Myers. Extensive memoranda were filed supporting and opposing the motion. Each side was apparently content with the facts as shown in the recorded testimony of the witnesses mentioned. The trial judge considered the motion from three aspects: primary negligence, contributory negligence, and last clear chance.

In granting the motion, he ruled that primary negligence of Keller would be a jury question; that Knisley was contributorily negligent as a matter of law; and that last clear chance did not apply. Taken most favorably to appellants, the evidence could support a finding that appellee was negligent, but that is not the issue before us. In the same light the facts show that Knisley had left work about 2:00 P.M. because of the holiday, had gone home and drunk five cans of beer, then went out to a tavern where he drank eighteen to twenty big glasses of beer. After leaving the tavern he attempted to cross Belair Road, a four-lane highway, about 150 feet south of the nearest intersection.

After some hesitation, he reached the middle, going from west to east, and stopped there. There was no physical barrier dividing the northbound lanes from the southbound. As he continued east from the middle of the road, two cars were coming north. One, not identified, was on the inside lane, and appellee was in the lane nearer the curb, about 60 feet behind the first car.

Knisley apparently passed safely in front of the first car, although one witness said he was hit or grazed by it and knocked into the next lane. This discrepancy is not material. In either event he was hit by appellee’s car in the easternmost lane. At the place where Knisley crossed Belair Road he was required to yield the right-of-way to vehicles, Code, Art. 6614, § 236 (a), 1 and although failure to do so is not negligence per se, he must use the greatest care for his own protection.

As the Court of Appeals said in Hender ²⁷² son v. Brown, 214 Md. 463 , 135 A. 2d 881 (1957), at page 468: “* * * the law requires him to know that he must