Meese v. Goodman

Sloan, J., delivered the opinion of the Court. On May 7th, 1933, about 1:30 o’clock A. M., the plaintiff, Gladys Goodman, while the guest of Charles E. New-. comer, in the latter’s automobile, which he was driving, was seriously and permanently injured when the automobile collided, first on the right, with an automobile driven by the defendant, John R. Rullman, Jr., and then, to the left with a trolley pole of the United Railways & Electric Company planted in the center of the North Ave ⁶⁶¹ nue Bridge in Baltimore City, just eastward of the intersection of McMechen Street and North Avenue. The suit was brought against the Mayor and City Council of Baltimore, the receivers of the United Railways & Electric Company, John R. Rullman, Sr., John R. Rullman, Jr., and Hazel E. Newcomer, administratrix of Charles E. Newcomer, deceased. The plaintiff non prossed as to John R. Rullman, Sr., and the Mayor and City Council of Baltimore, and obtained a judgment against the other defendants, of whom the receivers of the United Railways & Electric Company and John R. Rullman, Jr., separately appealed.

Mrs. Newcomer did not appeal. The plaintiff was employed at her father’s restaurant at Roland Park as a waitress. Her working hours were from 3:30 o’clock in the afternoon to 1 o’clock in the morning. On the night of the accident, after closing the restaurant, the plaintiff, her brother, Kenneth Goodman, her cousin, James H. Meyers, Adeline Jenkins, and Elmer Ness got into Newcomer’s Essex automobile with him.

They let Ness out at Chestnut and Thirty-sixth Streets, and the five others drove to the Goodman home on Chestnut Street, stopping just long enough for the plaintiff to go into the house and out again. Someone suggested taking a drive, so the party started for the home of a girl friend of the plaintiff, who lived two blocks away. The friend declined to go along. The party of five then proceeded through Druid Hill Park, coming to North Avenue at Park Avenue, where they turned eastward (left), and thence to the North Avenue Bridge, where the collision occurred, resulting in the death of Newcomer and Kenneth Goodman, and the injury of the plaintiff.

The plaintiff’s proof of negligence, so far as it affects the defendant Rullman, is substantially contained in her testimony as follows: “We had an accident or collision on North Avenue Bridge. When we reached McMechen Street I saw a big red truck in front of us, and in back of the truck was a machine, a closed car, closed automobile. We were behind ⁶⁶² that car. I saw that when we came to McMechen Street. * * * The first time I saw the truck was when I got to McMechen Street.

I looked ahead and saw the big truck and this car in back of it, and Mr. Newcomer wanted, I think, to pass the other car, I don’t know, and we started gradually to pass this car and we had gotten up to about the middle of the car that was in front of us — I don’t know whose it was — and suddenly, without any warning at all, the car in front of us made a quick left turn and we hit it * * * about middle ways. The right hind side of the car I was riding in, the right front wheel and fender hit that car. The next thing I knew I heard a little crash (with the trolley pole on her left) and that’s all I know.” “When I first saw the truck in front of the car I was riding in and the automobile that was behind it, the truck was the closest over to the curb. The other automobile was almost directly in back of the truck only a little over to the left. * * * I don’t know how fast the car I was riding in was going, but we couldn’t have been going very fast.

(Meyers said they were going about twenty-five miles an hour and picked up to thirty or thirty-five miles to pass Rullman.) * * * I think we were going faster than the car I saw behind the truck as we came up on the bridge. I did not hear any warning or signal given by the driver of the car I was in before this collision, did not hear any.” Asked “what signal you observed or warning before that car turned to the left?” Plaintiff answered, “None. We were riding in the eastbound car track.” There is evidence in the record that Newcomer was intoxicated, but the plaintiff and the other two surviving occupants of the car testified otherwise, so that the question of the plaintiff’s contributory negligence in intrusting her safety to a drunken driver becomes a question for the jury. The testimony of the plaintiff, in which her companions concur, entitled Rullman to have the case against him withdrawn from the jury, as it plainly shows that he violated no duty which he owed to the plaintiff.

The uncon ⁶⁶³ tradicted evidence is that it was Newcomer’s negligence and failure to observe the rules of the road that resulted in the plaintiff’s injuries. Hagerstown v. Foltz, 133 Md. 52 , 104 A. 267 ; Wash., B. & A. R. Co. v. State, use of Hall, 186 Md. 103 , 111 A. 164 ; Wilson v. Yates, 187 Md. 54 , 111 A. 161 . Assuming that Newcomer was sober, or that the plaintiff did not know or appreciate the fact that he was intoxicated, her only right to compensation was against him. The complaint is that Rullman suddenly turned to the left without warning into the path of the Newcomer car, a movement that could not have been so sudden for a car going at a moderate rate of speed.

The plaintiff infers that, because the headlights of the Newcomer car were lighted, Rullman should have been aware of their intentions and actions. The statute says the one wishing to pass should signal the one to be overtaken. Rullman says that he never turned out of his course, that he was going straight ahead, which no witness gave as over twenty-five miles an hour, and that he was not aware of the presence of the Newcomer car until it grazed his car, nor of the truck until immediately after the Newcomer car collided with his car and the trolley pole. If there was a truck ahead followed by a pleasure car, any prudent driver would have expected the latter to pass the truck and would have governed himself accordingly.

It was not Rullman’s duty at that time and place, and under the conditions there existing, to give notice or warning to a car in his rear of his intention to pass a car or truck ahead of him. The rules of the road applicable to the situation in this case are prescribed by the Act of 1929, ch. 224 (Code, Supp. art. 56, sec. 209: “All vehicles * * * when being driven upon the highways of this State shall at all times keep to the right of the center of the highway upon all highways of sufficient width, except upon streets or roads where traffic is permitted to move in one direction only, and except when overtaking and passing another vehicle, and unless it is impracticable to travel on such side of the highway; * * * and any vehicle overtaking another going in the same direction shall ⁶⁶⁴ pass to the left of the vehicle so overtaken [Elliott on Roads and Streets (3rd Ed.) sec. 1084], provided the way ahead is clear of approaching traffic and the operator signals the vehicle intended to be passed by the use of his horn or other signalling device.” And: “Any vehicle so overtaken shall promptly, upon signal, turn as far as reasonably possible to the right in order to allow free passage on the left.” There is no need to cite authorities or decisions as to the proper behavior of Rullman and Newcomer under the circumstances here in evidence. The statute as quoted says what they should have done, and is the authority to be followed. The plaintiff’s whole argument against Rullman implies that the accident happened because of his violation of the statutory rule of the road, though the mere violation of a statute or ordinance is not evidence of negligence, unless the violation of the statute or ordinance was the proximate cause of the accident.

Kelly v. Huber Baking Co., 145 Md. 321, 325 , 125 A. 782 . But in this case there is no evidence of reckless or unlawful driving by Rullman, or of his failure, upon demand, to yield the right of way. On the contrary, the one who violated the law and failed to observe the rules of the road was Newcomer, and, if he had done what the law required of him, the accident might not have happened and the plaintiff be uninjured. Rullman’s prayer for a directed verdict should therefore have been granted.

The complaint against the United Railways & Electric Company (second amended declaration) is that it maintained a trolley pole, one of a line of seven, in the center of North Avenue Bridge, and that it was an “unreasonable' and dangerous obstruction to traffic,” and that it was “without any device for signalling or warning the public of the presence and danger of said pole,” and that “the said Charles E. Newcomer * * * in attempting to prevent and avoid a collision with the automobile which was then and there carelessly and recklessly driven and operated by the defendant, John R. Rullman, Jr., so carelessly and recklessly operated the automobile in which the plaintiff was a passenger as to cause it to collide with ⁶⁶⁵ the automobile operated by the defendant, John R. Rullman, Jr., and the trolley pole situated in the center of the bed of North Avenue, at or about a point two hundred feet easterly of the intersection of North Avenue and McMechen Street.” The declaration is built around the opinion in the case of Stern v. International Railway Co., 220 N. Y. 284 , 115 N. E. 759, 761 , much of the language of which has been used in its composition. The physical facts in the Stern case bear a striking likeness to those of the instant case, but the premises from which the conclusion was drawn do not so accurately fit this case. In that case the location of the center trolley poles was found to rest in the judgment of the railway company, thus making the wisdom of their location a question of fact, and that, being so placed by the railroad company, it was a question of fact as to whether the City of Buffalo was guilty of permitting the maintenance of a public nuisance. The impression we get from the opinion in that case is that, if the poles had been so placed at the direction of the municipal authorities, the decision would have been the reverse of what it was.

This is not the only court that so construes that opinion. See Kaplan v. Herman, 232 App. Div. 513 , 250 N. Y. S. 532, in which guests sued the driver of an automobile and the Interborough Transit Company, the former for the negligent driving and the latter for maintaining