Kowalewski v. Carter

Orth, J., delivered the opinion of the Court. At the time of the automobile accident, which is the subject of this case, John Carroll School was located off the south side of Route 22 near Bel Air, Maryland. At that point the highway was straight and ran east and west. It had two lanes, the south, 12% feet wide, for eastbound traffic and the north, 12 feet wide, for westbound traffic.

The lanes were separated by yellow painted, double, no-passing-zone, lines. The speed limit was 50 miles an hour. On each side of the highway was a shoulder about 8 feet wide. The south or eastbound lane was intersected by a driveway providing ingress to and egress from the school grounds.

There was a stop sign controlling traffic entering Route 22 from the driveway. Thus Route 22 was a favored highway and the school driveway an unfavored intersecting road on which traffic was required to stop by a traffic control device and to yield the right-of-way to traffic approaching on the favored highway. Code, Art. 66%, § 233 (a) and (b) and §242 (a), (b) and (c). 1 ¹⁸⁵ There were three automobiles involved in the accident. One was operated by Edmond Joseph Kowalewski, defendant-appellant.

There were three passengers in this vehicle, Kowalewski’s wife Doris, and Mr. and Mrs. Richard Elder Smith. The second was operated by Guy A. Carter, who individually and to the use of the Ohio Security Insurance Company was the plaintiff below and is the appellee on appeal. He was the only occupant of the vehicle. The third was operated by Edward A. Law-hon and his wife and baby girl were passengers.

The Lawhons are not parties to this appeal. Evidence adduced tended to show that in the early morning hours of 28 April 1968 the Kowalewski car came from the school driveway, proceeded across the eastbound lane of Route 22 and made a left turn onto the westbound lane. The Carter car was travelling west on Route 22 in the westbound lane. The Lawhon car was travelling east in the eastbound lane.

The Carter car struck the rear of the Kowalewski car which after the impact continued west in the westbound lane, crossed the shoulder, jumped a ditch and came to rest against a dirt bank. The Carter car was driven into the eastbound lane and struck the Lawhon car. Carter sued Kowalewski in law in the Circuit Court for Harford County, individually for personal injuries, damages, losses and expenses, and to the use of the insurance company carrying his collision coverage for damages to his automobile. The case was tried by a jury.

At the close of Carter’s case Kowalewski offered a motion for a directed verdict and it was denied. At the close of all the evidence Carter and Kowalewski each offered a motion for a directed verdict. Each motion was denied. 2 The jury returned a verdict in favor of Carter individually ¹⁸⁶ against Kowalewski in the sum of $12,500 and in his favor to the use of the insurance company against Kowalewski in the sum of $1700. Judgment nisi causa was entered on each verdict.

After Kowalewski’s motions for judgment N.O.V., for a new trial and for remittitur were heard and denied judgments absolute were entered. He appeals from the judgments. Trooper Raymond F. Leard of the Maryland State Police was the first person to arrive on the scene immediately after the accident. A diagram he drew at the trial showing the position of the vehicles as he found them after the collisions was admitted in evidence.

The point of impact between the Carter and Kowalewski’s cars was in the middle of the westbound lane of Route 22 at a distance of 45 feet west from an extension of the west curb line of the school driveway. The Kowalewski car was 100 feet west of the point of impact. Skid marks. 22 feet long led to the point of impact. The Lawhon. car was in the middle of the eastbound lane, angled toward the center of the road and 40 feet west from the west curb line of the school driveway.

The trooper ascertained the distances by measurement. He was asked what evidence he found at the scene which satisfied him that the point of impact was as indicated by him. His answer may be fairly construed that he found debris in and marks on the roadway. 3 The damage to the Cárter car ¹⁸⁷ was “on the front, but it was generally to the right-front.” The damage to the Kowalewski car was “to the rear, but mainly to the left rear. * * * There was damage all across the rear but more extensive” in the left rear. The officer’s investigation did not reveal mechanical defects in any of the vehicles which would have been a contributing cause to the accident.

On cross-examination the trooper was asked if he told an attorney for Kowalewski that the point of impact was between 150 and 200 feet from the driveway of the school. He said: “I don’t remember telling that, no, sir.” He denied that when he prepared the accident report four days after the accident he put down 45 feet when he meant 45 yards — “No, sir, I don’t measure in yards.” Michael J. Doxzen, an attorney, testified for Kowalewski. He said he had at one time represented Kowalewski with respect to the accident and had talked to the trooper. Objection was made to the question: “What, if anything did Trooper Leard tell you about distances of the point of impact of the accident?” The court ruled that it would be admitted “to the extent that it’s offered as a rebuttal to previous testimony.” The answer was that two days afer the accident the trooper told the attorney the “point of impact of the accident happened about a hundred and seventy-five to two hundred feet away from the driveway of the high school towards Baltimore City.” Kowalewski in his testimony estimated the point of impact to have been 50 yards or 150 feet from the point where he turned onto the westbound lane of Route 22. “The thought entered my mind was half the distance of a football field * * *.

About half the distance [of a football field] it seemed like I travelled in my car.” 4 Smith, ¹⁸⁸ a passenger in Kowalewski’s car testified on his behalf that they had travelled up the road “I’d say forty — oh, forty yards, I guess” when the car was hit in the rear. Lawhon, called by Kowalewski said he estimated that the first impact between Kowalewski’s car and Carter’s car was “not more than two hundred feet. Probably somewhere between one and two hundred feet would be my best guess,” from the west side of the school driveway. On cross-examination of Carter it was elicited that he thought the point of impact was nearer the school driveway than 45 feet. “I think it was back farther to the intersection.” It was his opinion “I might have hit him two or three or four feet back further” than 45 feet.

The point of impact was a crucial element in the case. Since Route 22 was a favored highway and the school driveway an unfavored intersecting road on which traffic was required to stop and yield the right-of-way to traffic approaching on Route 22, the Boulevard Rule would apply if the collision occurred as a direct consequence of the entrance of the Kowalewski car onto Route 22 in disregard of its obligation to yield the right-of-way. Oddis, et al. v. Greene, 11 Md. App. 153 . Carter’s case was based on the application of the Boulevard Rule.

However, if the accident did not occur while Kowalewski was entering Route 22 the Boulevard Rule would not be applicable. The Motor Vehicle Law requires the unfavored driver to yield the right-of-way, and he does so by not entering the highway. 5 Once he has safely entered, rules other than the Boulevard Rule apply. Kowalewski’s defense was that the accident occurred after he had entered the favored highway safely and that negligence of Carter directly contributed to the accident. The obliga ¹⁸⁹ tion of Kowalewski to yield the right-of-way was not limited by the law to the area within the intersection itself.

It extends to traffic approaching on the favored highway during its passage past the intersection. Harper v. Higgs, 225 Md. 24, 31 . “The fact that a collision occurs outside the intersection does not bar the applicability of the boulevard rule, if the collision is the result of a violation of the boulevard law or its equivalent.” McDonald v. Wolfe, 226 Md. 198, 203 . “However, once the entering car has cleared the intersection and reached a point where it does not interfere with the favored driver’s right-of-way through the intersection, the boulevard law ceases to be applicable. * * * Rigorous as are the duties imposed upon the unfavored driver in entering the public highway for the protection of the public and for the smooth flow of traffic, he is not a perpetual pariah; if he has observed the mandates of the law in entering the intersection and has become a part of the flow of traffic on the favored highway, he has the same rights and is subject to the same duties as the other drivers on that highway.” Grue v. Collins, 237 Md. 150, 157 . The lower court submitted to the jury, and we think properly so, the issue whether the collision occurred while the Kowalewski car was entering Route 22 or whether at the time his car was struck by the Carter car he had yielded the right-of-way and become a part of the flow of traffic on the favored highway. The evidence was not conclusive that the accident did occur while entering.

There was no evidence that the collision occurred within the confines of the intersection so the presumption that the unfavored driver was entering the favored highway at the time of the accident did not arise. Nor was the evidence conclusive that the unfavored car had successfully entered. In resolving the question so important to a determination of whether it was the primary negligence of Kowalewski that was the proximate cause of the accident — if the collision occurred while Kowalewski was “entering” onto the fa ¹⁹⁰ vored highway or not — the point of impact was not only material but of the utmost probative value. Whether the impact occurred 15 yards from the intersection or 40 or more yards from the intersection would substantially influence the issue of whether Kowalewski had successfully entered onto the favored highway and become a part of the flow of traffic.

And in ascertaining the point of impact the credibility of the trooper was of major importance. Not only was his credibility attacked indirectly by the testimony of other witnesses in conflict with his testimony, but it was attacked directly by Doxzen’s testimony that the trooper had told him the point of impact was about 175 to 200 feet from the intersection. The court made this very clear to the jury. Doxzen’s testimony closed the evidence and immediately after a short recess the court told the jury: “Mr. Foreman, Ladies and Gentlemen of the Jury, I want to explain something to you and for the record.

The testimony of Mr. Doxzen regarding his conversation with Trooper Leard was admitted into evidence by the Court, over objection, on the sole basis that it was evidence offered to attack the credibility of the trooper’s testimony, which was given in open Court. It is not affirmative evidence on the part of the defense and is not to be considered as such by you. When I say ‘affirmative evidence’, I mean that the distance testified to by Mr. Doxzen, as given to him by the trooper, is not to be considered as evidence offered by the Defendant as to the distances. It’s simply offered to attack your belief in the credibility of the trooper, who had given in earlier testimony and had recited a different distance, if you recall.

I’m sure you do.” 6 ¹⁹¹ There is no doubt that the judge below made clear in his instructions to the jury that the credibility of the witnesses was a matter for them. 7 But after his remarks concerning the credibility of witnesses, the judge spoke of an expert witness as an exception to the rule that a witness may not testify as to his opinion or conclusions. “You should consider the expert opinion received as evidence in this case and give it the weight you think it