Safeway Trails, Inc. v. Smith

²¹⁰ Hammond, J., delivered the opinion of the Court. This appeal is by two intercity bus companies and their driver from a very large judgment in favor of a paying passenger who was seriously hurt when a bus sideswiped a heavy trailer. The bus was owned by Trailways of New England, Inc., and was being utilized at the time by Safeway Trails, Inc. Calvin Smith, the injured plaintiff, boarded the bus one June night of 1957 in Baltimore to go to Philadelphia to visit his sister. About half a mile beyond the Susquehanna River bridge, on Route 40 while the bus was in the fast lane passing an automobile, its left side was ripped open, in the words of its driver, Neff, “like a can opener on a can” by the rear right corner of a heavy flatbed trailer which was projecting into the fast lane at a cross-over.

Neff testified he did not see the silhouette of the trailer until he was sixty-five feet away; he had told the police he had not seen it at all as he approached. At the point of the accident Route 40 is a dual lane highway with two twelve-foot lanes on each side, separated by a thirty-seven foot grass median strip. There are macadam shoulders about eleven feet wide on each side. The tractor-trailer, which weighed twenty thousand pounds, was loaded with forty thousand pounds of steel covered by a dark tarpaulin.

It was travelling towards Philadelphia ahead of the bus and had turned left into the crossway in order to drive to a garage on the other side to stop for the night. Traffic in the fast lane of the Baltimore bound side of the road made the tractor stop at the edge of that lane for a minute or two. Because the overall length of the tractor-trailer was forty-four feet, all of it would not go into the thirty-seven foot long crossway even though the driver “jack-knifed” the rig, and the right rear corner of the trailer projected at an angle into the fast lane of the Philadelphia-bound side of Route 40 about a foot and a half. The tractor-trailer was equipped with some twenty lights, including red rectangular clearance lights on both the left and right rear corners, which delineated its outlines.

It also bore seven red reflectors. All the lights were lighted at the time of- the accident. ²¹¹ The jury exonerated the owner and driver of the tractor-trailer and Wood, the driver of the car which the bus was passing at the time of the accident. No one questions the correctness of the jury’s action as to Wood. The appellants claim error in the failure of the trial court to instruct the jury as they requested: (a) as to the boulevard law; (b) that, as a matter of law, their verdict should be for the plaintiff against the owner and driver of the tractor-trailer; and (c) that there was no evidence of excessive speed.

A second main contention is that a verdict should have been directed in favor of Trailways of New England, Inc. Appellants strongly contend also that there was reversible error in refusing to declare a mistrial because of the cumulative effect of misconduct of a juror and an improper and inflammatory argument to the jury, and particularly to the juror in question, by counsel for the plaintiff. Finally, they urged that the trial court’s “erroneous consideration of the facts and law in denying defendants’ motion for a judgment n. o. v. or a new trial amounted in reality to a failure to exercise sound discretion and the case should be remanded for a new trial.” The bus companies excepted to the charge of the trial judge because the jury was not told that Route 40 is a boulevard and because the charge did not contain requested instructions that (a) “The favored driver on the boulevard has nearly an absolute right-of-way over other vehicles and this dispenses with calculations of speed, time and distance;” (b) “A driver on the boulevard is not required to slow down at intersections;” and (c) “The primary, obvious and essential purpose of a boulevard is to accelerate the flow of traffic.” We find no error. At the end of the case the parties stipulated that Route 40 was a boulevard. The requested instructions were abstractions not related to the facts of the case.

We think the boulevard law does not apply, but if it be assumed that it does, the instructions sought were too broadly stated. “It is true that the driver on a boulevard is not obliged to anticipate that someone will negligently come into his path, but he is not excused from liability to his passengers if someone does come in, and he fails to avoid a collision because he ²¹² did not look in time to see what was inevitable.” Sun Cab Co., Inc. v. Hall, 199 Md. 461, 467 . In the same case it was also said, in speaking of earlier boulevard cases: “Neither of these cases holds that a driver on a favored highway can proceed without regard to the possibility of some other driver usurping his right of way.” In Fowler v. DeFontes, 211 Md. 568, 574 , we said: “Of course, although the favored driver has the right to assume that the unfavored driver will yield the right of way to him, that does not mean that the traveler on the favored highway has an absolute, unqualified, and complete right of way at all times and under all circumstances. This right of way is to be enjoyed with due regard to the circumstances then and there existing.” The boulevard law was not applicable here for several reasons. The tractor-trailer was not entering a through highway, it was leaving one.

The proposition that a following motorist on a boulevard has the right either to assume that a vehicle ahead will uninterruptedly complete a left turn off the favored road, or to ignore the possibility that it will for some other reason temporarily block the highway, is new to us and we have not been referred to or found authority supporting it. By its express terms, the boulevard law controls entrance onto the favored highway; exit from it is not mentioned. Code (1957), Art. 66½, Sec. 2 (60) and Secs. 233 and 242. The error claimed in the refusal to direct a verdict against the owner and driver of the tractor-trailer is that its violation of the boulevard law was the proximate cause of the accident.

The contention is disposed of by our holding that the boulevard law was not applicable. Maryland permits a tractor-trailer as long as that involved to use the highways and it allows the left turn from the boulevard which was made. The driver of the tractor-trailer executed the only feasible and practicable maneuver available in making a lawful turn and his blinking turn lights and the other warning lights and reflectors warned drivers following that the crossing was too short by a foot and a half to contain all of the trailer. The question of the negligence of the tractor-trailer was for the jury. ²¹³ On the question of speed a State trooper testified that the tachograph taken from the bus showed it was traveling at fifty-six miles an hour—a mile above the limit—and then said that a more detailed study made later showed the true and accurate figure shown to have been forty-six miles an hour.

Plaintiff’s counsel attempted, by cross-examination of the bus driver, to establish that the failure of the bus to stop after the accident until it had gone four hundred feet was evidence of excessive speed. After appellants had excepted to the court telling the jury they could decide whether the speed was under or over the limit, the trial judge supplemented the charge by advising the jury that “the expert advice or testimony * * * [as] to the probable speed of the bus as determined from the tachograph would indicate a speed at the time of impact of forty-six miles per hour and not fifty-six miles per hour speed. I just want to make it perfectly clear that I was not suggesting to you that you should consider the speed as fifty-six miles per hour but the indication is that the actual speed was around forty-six miles per hour * * A” If there was error in the original charge, it was cured by the supplemental instructions. The evidence that Neff was not the agent of Trail ways of New England, Inc., was neither uncontroverted nor conclusive, and the motion for a directed verdict in favor of that corporation properly was rejected.

Trailways concedes the established rule that ownership of the bus gave rise to a presumption that the driver was its agent. When Safeway denied ownership of the bus by special plea, the plaintiff traversed it and sought by interrogatories to discover who owned and was operating the bus when the accident happened. Interrogatory thirteen asked the names and addresses of all corporations and persons “who, on June 25, 1957, owned or had any interest in or any right to possession of the motor bus being operated by the individual defendant, Robert A. Neff, at the time of the collisions * * A” (Emphasis supplied.) It further asked (as to each such corporation or individual) “(a) * * * in detail the nature and extent of the ownership, interest or right of each in the motor bus on said date;” “(b) If the name Safeway Trails, Inc., or a name similar thereto, is furnished in response to this interrogatory, ²¹⁴ state, in detail, the relationship, if any, that existed between that company and the corporate defendant, Trailways of New England, Inc., on June 25, 1957, including particularly but not exclusively the nature and extent of the ownership of the motor bus mentioned in the declaration;” and “(c) State fully the facts on which the corporate defendant, Safeway Trails, Inc., relies in its denial, contained in its first plea to the declaration, of ownership of the motor bus involved in the collisions.” The answers to these inquiries were: “Now come Safeway Trails, Inc., Trailways of New England, Inc., and Robert A. Neff by * * * their attorneys, and for answers to the interrogatories heretofore propounded by the plaintiff, state: * * * 13. Trailways of New England, a. b. c.

Said corporation was the sole owner of the motor bus.” The interrogatories were signed and sworn to for Safeway and Trailways separately by the same individual, Marvin E. Walsh, as vice president of each of the corporations. The interrogatories and answers were offered and admitted in evidence, and, under Maryland Rules 417 (f) and 413 (a) (2), as the answers of the adverse party, became substantive evidence—sworn, although not conclusive, admissions of fact. Ridley v. Young (Col.), 253 P. 2d 433 . It was shown also that the ticket Smith bought bore the names Safeway and Trailways (the latter claimed by the appellants to refer to National Trailways Bus System, a nonprofit system of separate corporations operating under the Trailways name to furnish through bus service over each other’s franchises); that when Neff was first employed it was as a result of his application and visit to “Trailways;” and that the bus bore on its side the legend “owned and operated by Trailways of New England, Inc.” Appellants produced offsetting testimony by the claim agent of Safeway that Trailways of New England was not operating in Maryland or elsewhere in June 1957, because its operators were on strike.

He said there was a written agreement in effect between the two corporations and produced an ²¹⁵ unsigned paper dated 1951, which referred to supplements which would seem to have been material and pertinent on various points of importance but which were not produced. The writing provided that the companies would lease busses to each other for a flat sum per mile, that the compensation of the driver be paid by the company operating the bus, that the driver shall be competent and that the operating company be solely responsible for the operations of the bus. We think the question of the relationship between Trailways of New England and the bus was for the jury. In the interrogatory, Safeway and Trailways swore that the latter had sole right of possession at the time of the accident.

Concededly there was no unauthorized use of the bus. The admission could be fairly construed as a statement that Trailways was operating the bus when Smith was injured. We held in Campbell v. Dix, 203 Md. 338, 344-345 , that if an inconsistency appears between statements in a pre-trial deposition and testimony at the trial, the weight and credibility of the testimony are for the jury. The inter-relation of the two companies in the matter, which the evidence would permit the jury to find, is somewhat like that in Pennsylvania Railroad Co. v. Lord, 159 Md. 518, 535 , where the offending truck was owned by the defendant, the Pennsylvania Railroad Co., and was leased to another railroad corporation and operated by an employee of a third.

This Court saw evidence from which the jury might have found—including the fact that some of the officers of the three corporations were the same—that the lessee and the operating company were “parts of the Pennsylvania Railroad system, were under the direct management and control of the officers of that railroad, and were its agents.” We have consistently held that if the evidence to rebut the presumption of agency from ownership is contraverted and is not conclusive, the jury must decide the issue. Fowser Fast Freight v. Simmont, 196 Md. 584, 588 ; Scott v. James Gibbons Co., 192 Md. 319, 324 ; Taylor v. Wesley Freeman, Inc., 186 Md. 474 . It was pointed out in Grier v. Rosenberg, 213 Md. 248, 255 , that whether the evidence in rebuttal of the ²¹⁶ presumption is so slight that it is insufficient for the consideration of the jury or so conclusive as to require a directed verdict for the defendant “must depend upon, and be decided by, the facts developed in each individual case.” Here we think the facts were for the jury. The matter of the misconduct of the juror and that claimed of counsel for the plaintiff in connection therewith, came about in this fashion.

Juror Number Twelve, named Cross, made daily visits to the bus depot of Safeway in Baltimore in the course of his work for a printing company. A Safeway dispatcher named Stringfellow and the juror had been friendly for a year and a half. On the evening of the second day of the trial, the juror came into the bus terminal and, in response to Stringfellow’s question as to why he was not in work clothes, said that he was serving on the jury in a case involving Trailways. Stringfellow replied that he had heard of the case; it was the one where steel had rammed into the side of the bus and cut some people’s legs off.

The juror then remarked that the plaintiff was asking for $300,000 and that the jury had not yet decided which of the defendants was at fault or whether, whatever was decided, they would award the full amount claimed although he, the juror, thought it would be less. Counsel for appellants, having learned of the incident on the morning of the seventh day of the trial, informed the trial judge at his home that night. The next morning Stringfellow’s testimony was taken out of the presence of the jury and a conference was held in chambers. All counsel appear to have been inclined to the view that because of possible prejudice to the plaintiff, as well as to the owner and driver of the tractor-trailer and to Wood, the juror should be excused and the case decided by eleven jurors.

It is apparent that at the time there was no doubt in anyone’s mind that there would be a large verdict. In this setting counsel for Safeway and Trailways said to the Court that “counsel agree if we go ahead the court can control the verdict in the sense he can always reduce it but, in our discussion, Your Honor, I think, indicated there is some doubt as to whether you would cut a verdict,” to which the court replied in substance that, in a case of this type, where he an ²¹⁷ ticipated that the verdict