Rabinovitz v. Kilner

⁴⁵⁸ Hammond, J., delivered the opinion, of the Court'. The suit below was by the appellant, the favored driver under the right of way statute, to recover damages resulting from a collision between his truck and that of the appellee at an intersection where there was neither a traffic light nor traffic warning signs. The jury found for the defendant, the appellee here. The appellant claims that the trial court erred in its charge to the jury.

The charge presented, in the generalities customary in these cases, the elements of proximate cause, burden of proof, negligence and contributory negligence, and damage. As the meat of the charge, there was quoted Code (1951), Art. 661/2, Sec. 196, to the effect that vehicles approaching or entering an intersection shall have the right of way over vehicles approaching from the left, and shall give the right of way to those approaching from the right. The jury was next told that violation of the statute does not give rise to absolute liability unless the violation “not otherwise excused” is the proximate cause of, or contributed to, the happening of the accident, and that: “It is the obvious purpose of this rule to direct the order of precedence as between vehicles moving on intersecting roads or streets in such manner that their lines of progress will cross and that a collision may result if neither yields the right of way. The statute does not specify how near, a vehicle approaching from the right must be to the point of intersection in order to be entitled to the right of way with respect to a vehicle approaching from the left, nor what must be the proximity of the latter to the point of possible collision in order that the approach of one coming at a greater distance from the right may be disregarded.

It would be difficult to prescribe such limitations upon the rule in view of the diversity of the conditions to which it must be applied. Certainly, the Court would not be justified in regulating the enforcement of the rule according to specific measure of distance which the Legislature has not found it expedient to adopt. The question whether a vehicle approaching from the right is sufficiently near ⁴⁵⁹ the street or road intersection to have the right of way over a vehicle approaching from the left necessarily depends in each case upon its own facts. The width of the intersecting highways, the speed of the vehicles, and various other conditions might materially affect the issue as to whether an asserted right of why should be recognized or denied.” There was neither discussion nor recital of the facts.

The appellant excepted to the charge because it failed to include the substance of three prayers offered by him. The first prayer was a restatement of the right of way statute. We think it was covered sufficiently by the charge. The second prayer was that if the jury found the appellant’s vehicle to have been proceeding north and the appellee’s east, and that both arrived at the same time at the intersection, then the appellant’s vehicle had the right of way and the appellee’s vehicle should have yielded; and if the jury should find that it did not and “that as a direct consequence thereof”, the appellant’s vehicle was struck by the other vehicle, then the verdict must be for the appellant.

The third prayer was similar except that it was premised on a finding by the jury that the favored vehicle entered the intersection ahead of the unfavored vehicle. The appellant’s testimony was that he was driving his truck in Baltimore north on Ayrdale Ave. at from fifteen to twenty miles an hour and as he reached the intersection of Belle Ave., he slowed down and saw “a truck coming down, about a half a normal block on Belle Avenue, to my left”; and that he assumed the truck would slow down to stop since he had the right of way. When he was half way across the intersection, he saw the appellee’s truck about twenty feet away, and when he was three-fourths of the way across, he was struck at the left rear fender and wheel. His vehicle travelled over one hundred feet after the collision (as a result, he says, of his being thrown to the floor) and came to rest after striking a garage on property at the northeast corner of the intersection.

On cross-examination, he stated ⁴⁶⁰ that the appellee’s truck was sixty or seventy feet away when he first saw it. He later said it was one-half block away, as he had on direct examination. The appellee testified that he did not see the other truck until his brother, who was riding with him, yelled out and “I hit the brake hard and spied Mr. Rabinovitz coming through, cut sharp into the lefthand lane of Arydale facing the same direction as Mr. Rabinovitz; we were both still moving when we met, my right front with his left side.” The appellee testified further that as he was going east on Belle Ave., he was looking for the sign post' at Ayrdale Ave., his purpose being to find a street into which he could turn left to get to Cold Spring Lane. When the appellee’s brother was asked which truck entered the intersection first, he said: “It was about what we call a dead heat * * * I couldn’t give you an honest answer * * When asked if he had not previously testified that appellant’s truck was the first to enter the intersection, he answered that he did not remember doing so but would not either admit nor deny that he had.

He said he first saw the other truck when both vehicles had reached the intersection. There is no claim or any testimony that either vehicle was proceeding at an unlawful speed. The appellee’s claim of negligence on the part of the appellant is that he drove with dogged determination straight through the intersection without looking right or left. It is apparent that the evidence would permit a finding that the appellant had entered the intersection ahead of the appellee—from the testimony on both sides and as an inference from the point of contáct at the northeast corner of the intersection, three-quarters of the way across., There is no dispute that the two vehicles arrived at the intersection simultaneously.

The instructions of the court, which were quoted above, were taken verbatim from the opinion in Taxicab Co. v. Ottenritter, 151 Md. 525, 531, 532 . That case was a suit by the unfavored driver and the Court refused to hold, as a matter of law, that the statute created an absolute right in the favored ⁴⁶¹ driver, fatal to a claim of the unfavored one. The Ottenritter case has served as the rock upon which unfavored plaintiffs have since attempted to build their cases. It was a logical extension of the rule early laid down in Chiswell v. Nichols, 137 Md. 291 , and Hooper McGaw v. Kelly, 145 Md. 161 , namely: “* * * that while the right of way statute does offer an area of protection to the one on the right when both reach the intersection more or less simultaneously, it does not operate via extension to give such priority where the one on the right is a considerable distance away when the unfavored driver reaches the intersection * * Automobile Right of Way, 11 Md. L. R. 159, 166.

The Ottenritter rule has been followed in other cases where elements of speed' or recklessness made it inequitable for the court to apply the statutory right of way rule in its strict form. Askin v. Long, 176 Md. 545 , would appear, on first consideration, to be but another of the Ottenritter type. Yet there, the Court found that the unfavored driver’s evidence was so “inconclusive, contradictory and uncertain as not to be accepted as the basis of a legal conclusion”. The plaintiff had testified that the favoréd car was one hundred twenty feet away when he was going over the intersection.

The Court found both to be negligent. The Askin case seemingly should be considered to have been decided solely on the facts because, in subsequent cases, the Court has followed the Ottenritter rule and permitted the unfavored driver to go to the jury. See Legum v. Hough, 192 Md. 1 ; Wlodkowski v. Yerkaitis, 190 Md. 128 ; Richardson v. Fleetway Cabs, Inc., 198 Md. 512 ; Valcourt v. Ross, 201 Md. 17 . The appellee says that the