Lashley v. Dawson

Offutt, J., delivered the opinion of the Court. This is an action to recover damages for personal injuries suffered by the appellee as a result of a collision between an automobile operated by one Robert MacDonald and a motor bus owned and operated by the appellants. The accident occurred at or about midnight on November 12th, 1930, on the McMullen Highway, which runs in a general southwesterly direction from Cumberland, Maryland, through the villages of Cresaptown and Rawlings to Keyser, West Virginia, and at the time of the accident the appellants operated bus lines for hire between those points. Hayden C. Dawson, the appellee, was employed at a factory of the Celanese Corporation of America, located about five miles southwest of Cumberland on the McMullen Highway, lived on the east side of the same road a few miles southwest of Cresaptown, and in going to and returning from work he was accustomed to use appellant’s busses. ⁵⁵² On the day of the accident he completed his day’s work at eleven o’clock at midnight and went to» the usual place to take a bus to his home, but found that the bus which he expected to take had gone.

He did find, however, at that place one of appellants’ busses operated on a route terminating at Oresaptown, and he asked the driver of that bus how he was to get home. After some hesitation the driver told him to “climb on” and he would take him home. Dawson accepted the invitation, gave the driver a ticket for his transportation, and the bus proceeded from the factory to his home, which is connected with the McMullen Highway by a lane. The paved part of the road at that po»int is about sixteen feet wide, the bus about twenty-eight feet and nine inches long, and the lane narrow.

Because of that condition, on the way out, Dawson testified, he warned the driver that it was dange»rous to attempt to turn at his lane, but the driver, nevertheless, did turn into his lane and backed out in order to turn back towards Cumberland, and in backing ran into a bank on the opposite side of the road. He and Dawson then got out of the» bus to see whether it had been damaged. It had not, and the driver re-entered the bus and turned off the interior or dome lights so that he could “see where he was backing,” but left burning the headlights, the rear lights, and the marker lights. He then resumed his efforts to turn the bus, and, while it was across the road, a oar appeared codling from the direction of Cumberland, and Dawson, who» was standing in the highway, lighted a match to warn the approaching driver of danger, and then left the traveled part of the road and stood in a ditch on the extreme east side of it.

As the on-co»ming car approached the bus, it swerved to the left, crossed the traveled part of the road, struck Dawson, and crashed into» the bus. As a result of the collision Dawson was injured, and, on the 31st of the following March, he brought this action against the appellants and MacDonald in the Circuit Court for Allegany County to recover for his injuries. MacDonald was never summoned, and a judgment of non pros, entered as to him, but the action p»rocee»ded against appellants. At the trial of the case the ⁵⁵³ verdict and judgment were for the appellee, and from that judgment this appeal was taken.

The appellee’s theory of the case is that at the time of the accident appellants’ hns completely obstructed traffic on the highway at the point where the accident occurred; that that was an obvious and necessary consequence of any attempt to turn it at that point; that it was. dark at the time, and that it thereupon became and was the duty of the bus driver to warn approaching traffic of the danger which the hus in that situation presented; that, because of the angle of the bus. to the road, the usual road lights with which it was equipped did not suffice to- give such a warning, but that the dome lights would have done so; that, when the driver turned those lights off, ordinary care and prudence required him to warn approaching traffic of the danger by sounding his horn on the bus or by displaying other lights which would have been visible to such traffic; and that his failure to take any such precautions constituted negligence which was the direct and proximate cause of the accident. Appellants, on the other hand, contend that, since the usual road lights on the bus were all burning at the time of the accident, they had complied with all statutory requirements and were not guilty of primary negligence, but that, if they were negligent, their negligence was not the proximate cause of the accident, and that in any event appellee voluntarily placed himself in a position of obvious danger and was therefore as a matter of law guilty of negligence directly contributing to the injuries of which he complains. The record submits its eight exceptions, seven of which relate toi rulings on evidence and one to the court’s rulings on the prayers. The rulings on the evidence were abandoned in this court, so that there remains for consideration only the. action of the trial court on the prayers.

If the jury were entitled to- have the case at all, the two prayers granted for the plaintiff were unobjectionable and require no discussion, while all of the defendants’ prayers, except those which went to a directed verdict, were granted. The issues in the case raised by those prayers are (1) whether ⁵⁵⁴ the evidence was legally sufficient to show that the defendants were guilty of primary negligence which was the proximate cause of the injury of which appellee complains, and (2) whether upon the whole evidence the appellee was as a matter of law guilty of negligence directly contributing to such injury. Appellants’ first and third prayers tender the issues of primary negligence and proximate cause, while by their second prayer they ashed to have the jury instructed that the plaintiff was guilty of contributory negligence as a matter of law, and for that reason not entitled to recover. Because of the nature of those prayers, all conflicts in the evidence will be resolved in favor of the appellee, and the truth of all evidence, and such inferences as may naturally and legitimately be deduced therefrom which tend to support his right to recover, will be assumed.

Travelers' Insur. Co. v. Hermann, 154 Md. 182 , 140 A. 64 ; Clough & Molloy v. Shilling, 149 Md. 199 , 131 A. 343 ; Abuc Trading Corp. v. Jennings, 151 Md. 398, 404 , 135 A. 166 ; Purdum v. Edwards, 155 Md. 187 , 141 A. 550 . On his own behalf, after testifying to the facts which have been stated, Dawson said that, when the dome lights were turned off, the bus “set across the road,” and neither the headlights nor the rear lights could be seen from it, because they pointed away from the road, but that the dome lights, when turned on, lit up the interior of the bus so that it was distinctly visible to persons on the road; that between the front of the bus and a fence post on the east side of the road there was a space of about three feet clear; that when the driver re-entered the bus he (Dawson) remained in the roadway on the left or Cumberland side of the bus, and, when he saw the. MacDonald car approaching “with the hus standing there blocking the road,” he feared an accident unless MacDonald stopped his car, but it did not “look as if he was going to stop,” and he thought “the MacDonald car was making about the limit as it came along, that to warn him and prevent an accident, he, Dawson, lighted a match and waved it, and then “stopped over off the road,” into a ⁵⁵⁵ ditch on the east ox left side facing Keyser; that, as the MacDonald car got closer to the bus, it swerved suddenly to the left and struck him.

Alfred S. Someríield, a neighbor, happened to be returning to his home on the same road a few hundred yards north of Dawson’s lane, from Keyser, West Virginia, when he saw the bus across the road. He testified that, when he first saw it, the dome lights in the bus were burning and that he had no difficulty in seeing it, and that the driver apparently saw him approach and waited for him to pass; that at that time the bus was “pulled up in the lane,” leaving a clear space through which witness passed; that his lane was about 300 yards from Dawson’s lane, and when he reached it he turned into it, put his car away, and was about to enter his house when he saw the MacDonald car approaching; that at that time the interior lights of the bus were not burning and it had backed out again towards the other side, that he thought there would be “trouble” and kept watching until the collision; that when the crash came he went to the scene and from what he saw it appeared as though the “ear had tried to go between the post and the front of the bus,” a clear space of three to five feet; that at that time the interior lights were out and he heard no warning signal given by the bus driver; that the road lights on the bus did not show “up the road or down the road,” although they were visible to him when he was at his house about one hundred feet from the road; that when he arrived at the scene of the accident the front of the bus was four or five feet from the post and the rear of it projected six or seven feet beyond the macadam on the other side of the road, completely blocking the highway, except for the space of three to five feet in front between the front of the bus and the post. It also appeared from his testimony that there were other places, a short distance south of Dawson’s lane, where the bus could have been turned “more safely.” Somcrfield’s home was on the west side of the road about 300 feet north of Dawson’s lane, which was on the opposite side of the road, and from where he stood at the comer of ⁵⁵⁶ his house he could see the lights of the bus and “hear the motor run,” but the road was not lighted, and he could not see the body of the bus, but could only see the markers and the reflection from the front lights. Kearney K. Judy, who arrived immediately after the collison, testified that appellants’ bus “completely blocked the road,” and that at that time the interior lights were burning and the bus distinctly visible.

He also said that as he approached the bus he did not see the headlights, that it would have been impossible to have seen them. J. W. McKee, the bus driver, describing the accident, said: “When I arrived at the lane, Mr. Dawson’s destination, I drove the bus up in the lane and opened the door so he could get out. He got out and I backed back diagonally across the road, and in the meantime Mr. Dawson rushes to the east or left hand side of the bus and I got out and walked over to see how far I could go back without hitting the bank. In the meantime I saw a car coming from Keyser, and I pulled up in the lane far enough to let this car pass.

I then proceeded to turn my bus on around, Mr. Dawson being in the road, and I noticed a car approaching from Cumberland. I pulled up as far as I could pull and waited for this car to come by. It seemed to be coming at a pretty rapid speed, and I noticed, when he got close to the bus, instead of going by as I expected, he swerved to the left, and in doing so he struck Mr. Dawson and knocked him down. Q. Where was Dawson standing when he was hit ?

A. When Mr. Dawson was hit. he was standing still. He was jumping to get out of the road.” In connection with that statement on cross-examination, he gave this testimony: “Q. How far away was the MacDonald car when you first saw it approaching? A. It was about half way between the top of the hill and the bus. Q. What distance would that be?

A. I would say about 300 feet. Q. You had plenty of time to turn on the dome lights to let him see there was something in the road? A. I had time to turn them on; yes. Q. Why didn’t you turn them on ?

A. There was no reason to turn them on. Q. Why not ? ⁵⁵⁷ A. Because they aren’t to signal you are out on the road. They are merely intended to light the inside of the bus. * * * Q. But they make a big light so that you can see in through the windows that the whole thing is lighted up, can you not ? A. Well, yes — you can see the reflection, I suppose.

Q. Why didn’t you sound your horn when you saw this car approaching ? A. There is no reason to sound the horn when you aro setting off the road and a car approaching. He wasn’t coming out of a lane or anything that I needed to sound my horn. Q. You saw him approaching without any lights in your bus which is shown in the road, and you didn’t give him any warning by sounding your horn?

A. No, sir, 1 didn’t sound the horn.” There was evidence which permitted the inference that the brakes on MacDonald’s car may have been out of order, and also evidence contradicting the statements that the bus completely blocked the- highway at the time of the accident, and that the interior lights were turned on immediately after the accident, and that the usual road lights of the bus were not visible to persons approaching the bus over the McMullen Highway, but, for reasons stated above, those conflicts are not material to the issues under consideration, and may be disregarded. Briefly restated, and assuming the truth of all evidence-tending to support the- appellee’s right to recover in the action,, together with such inferences as may naturally and legitimately be deduced therefrom, the material facts involved in the three prayers under consideration are these: McKee-, the driver of appellants’ bus, attempted to turn it around at a point on the highway where- it was reasonably apparent that such turning could not be effected without completely blocking the highway; that to make the turn he partly entered appellee’s lane, and then backed out across the highway in such a position that the ordinary road lights on the bus pointed away from the road and were not visible to- persons approaching the bus over the highway; that to facilitate his turning he switched off the interior lights, which would have been visible to such travelers, so that the bus presented an ⁵⁵⁸ unlighted obstruction extending entirely across tbe highway; while in that position he saw an automobile approaching in time to have warned the driver thereof, by sounding his horn or turning on the interior lights, of the position of the bus, while the automobile was still 300 feet distant from it, but he failed to give any such "warning. The driver of the automobile approaching at a “rapid speed” apparently failed to see the bus until it was too late to avoid a collision, and, when he did see it, swerved suddenly from his right to the extreme left of the road and struck Dawson, who was standing in the ditch on the left or east side of it, and struck the left front wheel and the left front bumper of the bus, which was from three to five feet from a post in Dawson’s lane. These facts are sufficient toi support the hypothesis that the conduct of the bus driver in operating and managing the bus constituted primary negligence, and that such negligence was the direct and proximate cause of the accident which occasioned the injuries for which the appellee sought to recover in this action.

Public highways are established and maintained from the public funds for the use of all, and all persons having occasion to travel over them are entitled to assume that they are in reasonable repair and free from dangerous traps or obstructions of any kind, whether suffered or created by the .agencies having them in charge (Annapolis v. Stallings, 125 Md. 349 , 93 A. 974 ), or by travelers thereon. Huddy on Automobiles, sec. 383. The duty of keeping them safe for •.the lawful use of all persons who are themselves in the exercise of reasonable care rests primarily upon the state or the ¡particular agency of the state having them in charge, but there is also a duty, no less imperative, imposed by law upon every traveler