Pitts v. Mahan

MacDaniel, J., delivered the opinion of the Court. Milton E. Pitts (Pitts), to his own use and to the use of Bituminous Insurance Company, the appellants, have filed this appeal from a directed verdict in favor of the appellee ⁹⁶ granted by the trial court at the conclusion of the appellants’ case. The appellants raise two questions on appeal. The first is whether the trial court erred in finding Pitts guilty of contributory negligence as a matter of law.

The second question is whether the trial court erred in not properly applying the doctrine of last clear chance. In reviewing directed verdicts we are reminded that all evidence must be considered in the light most favorable to the plaintiff, and all conflicts in the evidence must be resolved in his favor. Curley v. General Valet Service, 270 Md. 248 , 311 A. 2d 231 (1973). The plaintiff, however, is not entitled, in the absence of evidence, and upon a mere suggestion of possibilities, to have a jury speculate in his favor.

Gutterman v. Biggs, 249 Md. 421 , 240 A. 2d 260 (1967). The facts giving rise to this case and the inferences fairly deducible therefrom are essentially undisputed. On Saturday afternoon, June 29,1974, Milton Edward Pitts was driving home from work accompanied by two of his fellow employees. As they were traveling north on Ft.

Smallwood Road, the left rear tire of the pickup truck in which they were riding went flat. Pitts pulled over onto the right shoulder of the road. Unfortunately, he could not drive the truck completely off the roadway. The left side of the truck was positioned approximately two to four feet out into the northbound lane, exposing the left side of the truck to oncoming traffic.

The position of the vehicle, however, did not deter Pitts from attempting to change the tire. While stooped down next to the left rear wheel, apparently unaware of oncoming traffic, Pitts was struck by a northbound automobile driven by the ^appellee, Marlene Gertrude Bradford Mahan (Mahan). Ft. Smallwood Road in the area of the accident is a two lane highway divided by a double centerline.

The road in the vicinity of the accident does not curve to the left or to the right but does transverse several hills. The top of one hill is two hundred'to three hundred feet south of the point of impact. Another hill lies approximately four hundred feet north of the point of the collision. ⁹⁷ Mahan, at the scene of the accident, advised the investigating police officer that as she crested the hill to the south of the truck she saw Pitts engaged in changing or looking at the left rear tire. As Mahan approached the disabled truck she pulled to the left across the centerline to pass.

As she reached the truck an oncoming car forced her to swerve back to the right of the centerline. It was at this point that she struck Pitts. There was no evidence of speed on the part of Mahan. On the basis of the above evidence Pitts’ counsel, at trial, conceded that his client was guilty of contributory negligence.

This admission was made in response to the court’s questions. The exchange went as follows: “COURT: Well, what about the duty of your client to observe? MR. EISENSTEIN: I have no argument that he is, I am not going to argue about contributory negligence because he is in the road and it is not an intersection.

He is,