Marshall v. Sellers

Delaplaine, J., delivered the opinion of the Court. These two suits were brought in the Circuit Court for Talbot County against J. Norman Marshall and Norman D. Marshall, copartners trading as Marshall’s Express, to recover damages for injuries alleged to have been caused by the negligence of their driver in parking their motor ’ truck on the highway between Chester and Stevensville in Queen Anne’s County. In the first case the plaintiff, John Clarence Sellers, infant, alleged that, while driving an automobile westwardly toward Stevensville on September 12, 1945, at about 12:45 a. m., he collided with defendants’ truck, which was parked with its left wheels on the right side of the road without displaying any lights, flares or warning signal of any kind, and that as a result of the collision he was seriously injured and the automobile was damaged. The second case was instituted by the infant’s father, Clarence E. Sellers, to recover for the damage to his automobile, his son’s medical and hospital expenses, and loss of his son’s services.

The cases were tried together in the Circuit Court for Cecil County. It appeared at the trial that the infant plaintiff, who had been working on his father’s farm on Kent Island since his graduation from high school, borrowed his father’s automobile, a Chrysler coupe, to go to a dance near Queenstown. About midnight he left there for home, but after he passed Chester his coupe crashed into the left rear end of defendants’ truck. He was rendered unconscious, and was taken to the Easton ⁵¹² Hospital, where Dr. Virginia Palmer found a laceration about two inches long on the right side of his head and another on top of his head.

The physician removed some pieces of glass from the cuts, and some blood from his right ear. Also finding some fragments of bone, she concluded, without making an X-ray photograph, that he had sustained a fracture of the skull. After he had been in the hospital three days, his physician’s father, Dr. William Palmer, examined him and concurred in the diagnosis. The jury, after the Court had read the granted prayers, rendered a verdict for $8,000 in favor of the infant plaintiff, and a verdict for $1,340.60 in favor of his father.

Defendants then appealed from the judgments entered upon the verdicts. The Maryland Motor Vehicle Law makes it unlawful for any person to operate a truck, whose gross weight of vehicle and load capacity is more than 8,500 pounds, upon any highway in the State, outside of a business or residential district, whenever there is insufficient daylight to make substantial objects visible at a distance of 300 feet, unless there shall be carried in the truck not less than three flares or other signals capable of producing a brilliant warning light for eight hours. Whenever any such truck or its lighting equipment is disabled during the period when lighted lamps must be displayed on motor vehicles, and the truck cannot be removed immediately from the main traveled portion of the highway, the driver shall immediately cause the flares or other signals to be lighted and placed upon the highway, one at a distance of approximately 100 feet in front of the truck, another at a distance of approximately 100 feet in the rear of the truck, and the third upon the roadway side of the truck. Laws of 1943, ch. 1007; Code, Supp. 1943, art. 66^, sec. 240.

In this case the total length of the tractor and trailer was about 36 feet. The truck driver, Leonard Schuyler, of Denton, testified that, when he left Baltimore on September 10 on his trip to the Eastern Shore by way of Matapeake Ferry, he had three flares in his truck; but ⁵¹³ on the following day, when he left Salisbury, with his truck loaded with tripe, on his return trip to Baltimore, he did not notice that the flares were missing. Just as he passed Chester, when it was growing dark, he turned on the lights, but the fuse blew out. He declared that it was not until he had parked the truck along the side of the road and looked for the flares that he found they were gone.

Yet, though he was only a few hundred yards from Chester, and only about a mile east of Stevensville, where he could have looked for help, he climbed into the truck about 8:30 p. m. and went to sleep. There is no question that the evidence warranted a finding of primary negligence. Appellants, however, requested directed verdicts on the ground that the infant plaintiff was guilty of contributory negligence. They contended that, if he had exercised reasonable care, he could have avoided the collision.

Some of the courts of this country have adopted the English rule that a driver must have his car under such control as to be able to stop within his range of vision, even though visibility may be affected by fog or other conditions, and if he fails to operate his automobile in such a manner that he cannot stop it before striking the obstruction, he is guilty of contributory negligence as a matter of law. In Pennsylvania, for example, it was held in Simrell v. Eschenbach, 303 Pa. 156 , 154 A. 369 , that a motorist was guilty of contributory negligence as a matter of law when he operated his automobile at night at the rate of 25 miles per hour and ran into a truck, which was parked on the road without lights, and which he could not avoid hitting because he could not see it on account of a storm until he was within 20 feet of it. But we have held that this rule is too broad, because it fails to consider the fact that a person driving at night has at least some right to assume that the road ahead is safe for travel unless a danger is indicated by a red light, and also the fact that visibility is different in different atmospheric conditions. Frederick & Baltimore Transportation Co. ⁵¹⁴ v. Mumford, 154 Md. 8 , 139 A. 541 ; Robert v. Wells, 170 Md. 367 , 184 A. 923 ; Morehouse v. City of Everett, 141 Wash. 399 , 252 P. 157, 160 , 58 A. L. R. 1482.

We think the determination of whether an automobile driver should have seen an obstruction at night is under many circumstances a question for the jury. Each case should be considered in the light of its own peculiar facts and circumstances, the test being what an ordinarily prudent person would have done under the circumstances as they existed at the time of the accident. The collision in this case occurred on a straight and level road, but the road was rather narrow. According to an officer of the State Police, who arrived on the scene less than an hour after the accident, the paved surface of the road was about 21 feet in width, and the left wheels of defendants’ truck were about five feet out on the paved surface.

Thus the truck obstructed about one-fourth of the road. Furthermore, the night was dark and slightly foggy. Young Sellers testified that the headlights on his father’s car were very good. The Motor Vehicle Law now provides that whenever the driver of a vehicle approaches an on-coming vehicle within 500 feet, such driver shall use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the on-coming driver.

Laws of 1941, ch. 423; Laws of 1943, ch. 1007; Code, Supp. 1943, art. 66l/2, sec. 224. Sellers testified that when he saw a car approaching about 500 feet ahead, he dimmed his headlights in compliance with the law, and then almost immediately after the car had passed, he saw a large dark object directly in front of him, and he could not avoid hitting it. He said that the bright headlights of the oncoming car did not illuminate the truck, but they did not prevent him from seeing the road. Appellants suggest that it might be inferred that Sellers was driving at an excessive rate of speed from the extent of the damage to the coupe and the fact that it went a distance of 66 feet after the impact.

Sellers, however, testified that he was driving carefully on the right side of the ⁵¹⁵ road, and that his rate of speed was not more than 35 miles an hour. It is an established rule that where evidence of negligence is contradictory, or is of such a character that reasonable minds, after considering all the circumstances surrounding the happening of an accident, may draw different conclusions as to whether it constituted proof of negligence and contributed to the accident, it is not for the court to determine its quality as a matter of law, but it is for the jury to pass upon it. York Ice Machinery Corporation v. Sachs, 167 Md. 113, 122 , 173 A. 240 ; Baltimore Transit Co. v. State, to Use of Schriefer, 184 Md. 250, 259 , 40 A. 2d. 678; Crunkilton v. Hook, 185 Md. 1 , 42 A. 2d 517, 520 . We must take the view of the evidence most favorable to the plaintiff, and judge the degree of care which he exercised in the operation of his automobile by those conditions on the highway ahead of him which he should have reasonably foreseen.

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