Savage v. Mills, Admr'x

Prescott, J., delivered the opinion of the Court. Both drivers in a two-car collision were sued by a passenger in one of the cars. The passenger, before trial, died of causes unrelated to the accident, and his personal representative was substituted as the party plaintiff. The jury rendered a verdict against both defendants, and each has appealed.

The accident occurred at about 6:00 p.m. on November 9, ²⁰⁷ 1961, in the City of Salisbury. The streets were dry, the atmosphere was clear, and both cars had their headlights on. As the scene thereof is somewhat difficult to describe, the reporter is requested to reproduce a portion of Exhibit I in reporting the case. ^{0 207} Little need be added by way of explanation of the exhibit. E. Main Street is a through artery, and E. Church is not.

There is a Texaco service station in the angle formed where E. Main and E. Church Streets intersect. The service station does not occupy all of the angle. At the outer edge of the Texaco property is a rounded curb. Paralleling this curb is a painted white line, which, together with the curb, was described as a “gap” or passageway, which is used for vehicular traffic from E. Church to E. Main Street and from E. Main to E. Church Street.

The uncontradicted evidence shows this passageway to be a “roadway” as defined by Code (1957), Article 66j4, Section 2 (47). The remainder of the point of the angle is painted (some of it only visible in spots), but there are no structural traffic signals therein. It will be noted that there is a stop sign on the south side of E. Church before its intersection with the passageway. The appellant White was operating his automobile east on E. Church Street with appellee’s decedent as his passenger.

There was some testimony to the effect that he was exceeding a speed that was reasonable and proper, but, in the view that we take of the case, it will not be necessary to pursue this phase of the case further. White admitted that he did not intend to, nor did he, stop at the stop sign, believing that it was a caution signal to come to a stop at the intersection of the two streets some 110 feet east of the stop sign, and yield the right of way to traffic on E. Main Street. He stated that he did not see the other car until it was about 20 to 25 feet away, and he attempted to stop as soon as he saw it, but was unable to do so until the cars collided. He placed the point of impact in the pedestrian crosswalk (the crosswalk has little, if any, significance to the issues here involved) where an X is marked on the exhibit; and stated that neither car went over about a foot after the collision. ²⁰⁸ The other appellant, Savage, testified he was proceeding through the passageway, and was “easing out” onto E. Church Street intending to proceed west thereon.

As he eased out, White came through the stop sign without stopping and ran into his car. He placed the point of impact slightly east of where White had placed it, as is shown by the heavy lines indicating the cars on the exhibit. It is obvious that the collision occurred within the intersection of the passageway and E. Church Street, Code (1957), Article 66j4, Section 2 (20), according to both appellants. Code (1957), Article 66^2, Section 233 (b), provides: “The driver of a vehicle shall likewise come to a full stop in obedience to a stop sign and yield the right of way to a vehicle approaching on the intersecting highway as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway.” See also Section 242, infra.

The Case Against Appellant Savage. Savage made a motion for a directed verdict in his favor, but the court denied the motion and submitted his case to the jury. It was noted above that White admitted he did not stop at the stop sign; and it is obvious, from uncontroverted evidence, that he failed to yield the right of way. The duties and obligations placed upon the driver of a vehicle under subsections (a) and (b) of Section 233 are so similar that we think our decisions under subsection (a), the so-called “boulevard law” are apposite here.

Of course, the statutes do not relieve the favored driver of all duty to use care. Belle Isle Cab Co. v. Pruitt, 187 Md. 174 ; State v. Marvil Package Co., 202 Md. 592 ; Harper v. Higgs, 225 Md. 24 ; Green v. Zile, 225 Md. 339 ; Brown v. Ellis, 236 Md. 487 . The only purported act of negligence on Savage’s part was that he was “cutting the corner,” that is he was close to the curb on the Texaco property as he approached E. Church Street; and appellee and White argue this act of negligence was a contributing cause of the accident. We do not find the argument persuasive.

We stated in Dunnill v. Bloomberg, 228 Md. 230 , that although the duty of the unfavored driver ²⁰⁹ is not absolute, it is rigorous and only in rare instances is it proper to submit to the jury the issue of negligence or contributory negligence on the part of the favored driver. Again, in Zeamer v. Reeves, 225 Md. 526 , Judge Sybert, for the Court, stated: “The unfavored driver may not relieve herself of the duty of yielding the right of way by simply claiming that the favored driver was exceeding the speed limit.” In Sun Cab Company, Inc. v. Cusick, 209 Md. 354 , the favored driver was charged with three alleged acts of negligence. In disposing of one of them, the Court said: “However, even if it is a fact that he [the favored driver] was driving in the center of the avenue, he could not be charged with negligence for so doing, because such fact was not the direct and proximate cause of the accident, as there might have been a collision even if the cab had been traveling upon the right half of the avenue.” Moreover, there was testimony to the effect that because of the bend in the passageway and its width (it will be noted the width varies from 19.5 feet at the middle of the curve to 30 feet where it enters E. Main