Shedlock v. Marshall

Marbury, C. J., delivered the opinion of the Court. On April 20, 1944, about 7 A. M., Joseph T. Shedlock was on his way from Baltimore to Sparrows Point, driving his own automobile in which was a passenger, Lee A. Miller, who was associated with him in his work. He proceeded along Monument Street, a public highway in the City of Baltimore, and entered the intersection of that street with the Philadelphia Road, which was a duly marked and established boulevard or arterial highway. Monument Street enters the Philadelphia Road at an acute angle, and Shedlock was driving southeast on Monument Street and intended to go east on the Philadelphia ²²² Road.

While he was in the intersection, a tractor-trailer combination, belonging to J. Norman Marshall, trading as Marshall’s Express Company, and driven by the latter’s employee, and traveling west on Philadelphia Road, entered the intersection, and there was a collision between the two. The point of impact, which was agreed upon by all parties, was 28 feet 8 inches north of the south °.urve of the Philadelphia Road, about 124 feet east of the ,int where the rounded curb on the. southwest side of Monument Street meets the north curb of the Philadelphia Road, and.about 125 feet west of the overhead railroad bridge over the Philadelphia Road. The paved surface of the roadway, across the intersection, at the point of impact, is 61 feet 4 inches. The Philadelphia Road, west the intersection, is 48 feet 4 inches wide, and east of i,ne intersection, where it goes under the railroad bridge, is 34 feet 9 inches.

As a result of the collision, Shedlock and Miller were badly injured, Shedlock’s automobile was wrecked, and the tractor-trailer was upset and badly damaged. On October 5, 1944, Shedlock brought suit against Marshall in the Baltimore City Court, for personal injuries and property damage. On October 16, 1944 Marshall brought suit against Shedlock in the Baltimore City Court for damages to the tractor-trailer. On November 8, 1944, Miller brought suit against Marshall in the Superior Court of Baltimore City for personal injuries.

Marshall, after leave granted, filed a third party complaint in this last suit against Shedlock as third party defendant under the provision of the Joint Tortfeasors Act, Flack’s Annotated Code, 1943 Supplement, Article 50, Sec. 27 (a). Miller, the original plaintiff, did not amend his pleadings to assert the claim against Shedlock as required by the statute, but his failure to do this cannot prejudice Marshall’s right to have Shedlock brought in. No question of Miller’s failure to declare against Shed-lock was raised by anyone, and, as the parties all went to ²²³ trial on the pleadings as filed, any defects, in this respect, were waived. General issue pleas were filed, in all these cases by all the parties defendant, and on May 14, 1945, Marshall filed his petition in the Baltimore City Court asking that the two cases pending therein, and the Superior Court case be consolidated for trial in pursuance to Rule 2, Section III, title “Trials” of Part Three of the General Rules of Practice and Procedure.

After an order nisi had been passed, and after the hearing of objections made by Shed-lock and Miller, it was ordered by the Court on May 18, 1945, that there should be a joint hearing on all the matters in issue in all the three cases. As the objections pressed here, if well founded, would render nugatory and void all the subsequent proceedings, they will be considdered first. It is contended by Shedlock and Miller that the Court had no authority to order a joint trial of cases originating in the Baltimore City Court, and in the Superior Court, as each of these courts has concurrent jurisdiction in civil common law cases such as those consolidated. Article 4, Part IV, Secs. 27 and 28 of the Constitution are cited as authority for the contention that the provisions of Rule 2 of this Court and their application in the present case are unconstitutional.

Rule 2, as adopted by this Court on January 30, 1941, provides that when actions involving a common question of law or fact or a common subject matter are pending before several of the courts of law of Baltimore City, any of such courts in Baltimore City may order a joint hearing or trial of any or all of the matters of issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings there in as may tend to avoid unnecessary costs and delay. This rule in common with the other rules, similarly adopted, was authorized by Chapter 719 of the Acts of 1939, and was passed after it had been recommended by a committee appointed by the Court in pursuance of Section 35D of Article 26 of the Code as amended by the Act of 1939. The rules thus adopted were reported to the ²²⁴ General Assembly of 1941 as provided by the Act of 1989, and not having been modified or repealed by it, they took effect on September 1, 1941. Ever since that time they have been in effect, and operative.

Chapter 719 of the Acts of 1939, under which the rule was passed, while providing that rules passed under its authority, shall neither abridge, enlarge nor modify the substantive rights of any litigant, states also that the terms “practice and procedure” shall be liberally construed and shall be deemed to include, among other things, trials and judgments. The Superior Court case was not moved to the Baltimore City Court, nor were the Baltimore City Court cases moved to the Superior Court. A joint trial was had before a judge who was authorized to sit in both courts, and did so sit, concurrently, and before a jury which according to the record was sworn in both courts, and which rendered separate verdicts in each case in the respective courts, as will be hereinafter shown. Under these circumstances no substantive rights of any of the parties in any of the cases were adversely affected, nor was there any violation of any of the provisions of the Constitution.

Since the adoption of the amendment of November, 1944, adding Section 18A to Article 4, the Constitution itself contains a specific direction to this court to regulate practice and procedure in the trial courts throughout the State. Rule 2 is such a regulation, and has been continued unchanged. During the course of the testimony a witness for Marshall, upon his return to the witness stand after recess, was asked by counsel for Shedlock, upon cross examination, with whom he had discussed the case during the intermission. Counsel for Marshall thereupon said “You saw him talking with me on the steps.” And the witness said “I wasn’t talking about this accident.” He was then asked “What were you talking about?” The Court refused to require him to answer this question over objection.

While counsel should avoid talking to his witness while he is still on the stand, even though it is during the luncheon recess, and the conversation is not about the case, ²²⁵ nevertheless, we do not think it is within the rights of counsel for the other side to find out what the conversation was about. He had the right to inquire whether he was talking about the case or any phase of it, but not to ask the general question he did. It is unfortunate that such instances should occur because, they lead to suspicion which is often wholly unjustified, but we do not feel that any error was committed by the Court in its ruling on the question. The Court, when it directed the joint trial of the cases, applied the authority given by Rule 2 to regulate the proceedings by ordering that the arguments at the conclusion of the case should follow the order in which the cases were filed in Court.

As a result of this, Shedlock’s counsel made the first argument, Marshall’s the second, and Miller’s the third. Then Shedlock’s counsel was given only five minutes for rebuttal, while he was allowed 30 minutes for his first closing argument. This is within the discretion of the trial court and his exercise of such discretion will not be disturbed, unless it is plainly arbitrary, and unless some injury is shown to have been done to the complaining party. Where cases are consolidated it is impossible to follow the usual rules as to opening and closing, and, therefore, the trial judge has to make new ones for each case.

We are unable to see that he committed any error in this respect in the cases before us. At the conclusion of the trial the jury brought in four separate verdicts. The first was a verdict in the Baltimore City Court in the case of Shedlock v. Marshall. This verdict was for the defendant, Marshall, and from the judgment entered on it for Marshall for costs, Shedlock appealed.

This appeal constitutes No. 101 in this Court. The second verdict was also in the Baltimore City Court in the case of Marshall v. Shedlock and was in favor of Marshall for $1,492. From the judgment on this verdict Shedlock also appealed, and this appeal is No. 102 here. The third verdict was in the Superior Court of Baltimore City, in the case of Miller v. Marshall, and was in favor of Marshall.

From the judgment on that verdict for Mar ²²⁶ shall for costs, Miller appealed, and that appeal is No. 103 here. The fourth verdict was in the same case, in favor of Miller against the third party defendant Shedlock, for $1,000, and, from the judgment on that verdict, Shedlock appealed, this appeal being No. 104 here. We have already discussed the preliminary questions involved in the consolidation, and the one ruling on evidence, which was objected to. The other rulings objected to are on the prayers granted and refused by the Court.

Some of these prayers were offered generally, but Marshall designated his prayers for the particular case in which they were offered. It may be assumed that by so doing he avoided any confusion of the jury except that possibly incident to the trial of four cases at one time. Such possible confusion, however, is overweighed, in the opinion of most courts by the advantage of having all questions relating to a single transaction disposed of in one case at one time, with the consequent saving of time of the court and of the witnesses, and the saving of the expenses of litigants. It does not appear that any misunderstanding occurred in the present case by reason of the fact that different prayers were offered in different cases.

Before discussing the questions involving the prayers, the facts should be stated in more detail. As we have previously said, there is no dispute on the exact location of the point, of contact, but there is a very wide difference in the stories of the respective actors and their witnesses as to how the vehicles arrived at this point. Shedlock and Miller state that Shedlock’s car was driven around the curb at the west end of the intersection of the two streets, stopped before it reached the line of the Philadelphia Road, and waited five or six minutes for traffic to go by, so that it could safely proceed. Shedlock then drove into what he claims was the line of the Philadelphia Road, and proceeded to about the point of contact, when Marshall’s truck came out from a fog bank in the tunnel under the bridge, running on the wrong side of the road and proceeding very fast.

Shedlock said he had only time to turn his car a little to try to run over the curb before ²²⁷ Marshall hit him on the left side. It might here be noted that while Shedloek claims he was running in the Philadelphia Road, he was at least four feet four inches over on the wrong side of that road, as extended from its curb lines before it entered the intersection from the west, so that he had not yet gotten to the right hand side of the Philadelphia Road. The testimony of Marshall’s driver and of the driver of another truck which was following him, was that Shedlock’s car came straight down Monument Street and slowed at the intersection, but did not stop. Marshall’s driver saw it from 250 to 300 feet away, but not thinking that it was going to* attempt to cross, he continued at the same speed he was going, which he estimated at about 25 miles an hour.

Shedloek, he says, suddenly drove in front of him, and in trying to get around him, struck the left front of his tractor which broke his braking apparatus and pulled him around in such a way that he was unable to guide his tractor, and he went over the south curb of the Philadelphia Road and turned over. Shedlock’s car also went over the curb, but remained upright. The ruling of the trial court on the prayers which we are first urged to reverse is the granting of Marshall’s 3rd prayer offered in the case of Shedloek v. Marshall. This prayer involves the duties and responsibilities of drivers entering a favored highway.

Before considering it, a review of the appropriate statutes will be made. Flack’s Annotated Code, 1943 Supp., Art. 661/2, Sec. 187, provides (a) “The State Roads Commission with reference to State and county highways, and local authorities with reference to other highways under their jurisdiction may designate through highways and erect stop signs at specified entrances thereto * * and (c) “Every driver of a vehicle shall come to a full stop at such sign or at a clearly marked stop line before entering an intersection and yield the right of way to vehicles approaching on the intersecting highway except when directed to proceed by a peace officer or traffic control signal.” ²²⁸ Sec. 178 provides (a) “The driver of a vehicle shall come to a full stop as required by this Article at the entrance to a through highway and shall yield the right of way to other vehicles approaching on said through highway.” Sec. 2, Subsec. (20) defines intersection as follows: “The area embraced within the prolongation or connection of the lateral curb lines, or if none, the lateral boundary lines of the roadways of two highways which join one another at, or approximately at right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.” Sec. 2, Subsec. (59) defines through highways as “Every highway or portion thereof at the entrances to which vehicular traffic from intersecting highways is required to stop and yield right of way before entering or crossing the same and when stop signs are erected.as provided in this Article.” The accident in the case before us was at the intersection of the Philadelphia Róad, a through highway estab lished under the provisions of the statute, and Monument Street, which intersected it at an acute angle.

The intersection of these two streets is therefore not that area embraced, within lateral boundary lines of the roadways of the two highways, because that definition applies only to highways which join' at, or approximately at, right angles. The intersection in the case before us is that loosely defined at the end of Subsection (20) as “the area within which vehicles traveling upon different highways joining at any other angle” (than a right angle) “may come in conflict.” The provisions of the Maryland statute are practically the same as the Uniform Act Regulating Traffic on Highways. See 11 U. L. A., page 46, Paragraph 48. The Uniform Act provides for the erection of stop signs and states that when ever such signs have been erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto, except where directed to proceed by an officer or by a traffic control signal.

The defintion of in ²²⁹ tersection in the Uniform Act is different. The term “intersection” as used in the uniform Act is the same, no matter at what angle the highways join or cross each other. In all cases, the intersection is the area within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines. The provision in the Maryland Act, making a special definition for the intersection of highways which join at an angle other than a right angle is not found in the Uniform Act.

It appears from this circumstance that the Maryland legislature intended to make a clear distinction between right angle intersections and intersections occurring from roads meeting at other angles. The provisions of Art. 66%, Sec. 187, were first placed in the statute law of this State by the Act of 1929, Chap. 224, codified in Flack’s 1935 Supp. to the Annotated Code, Art. 56, Sec. 209. Similar provisions were continued in 1939, Chapters 377 and 382 of the Acts of that year, codified in Flack’s Annotated Code of 1939, Art. 56, Sec. 235. The present provisions were enacted in the form in which we have quoted them by the Act of 1943, Chap. 1007.

The definition of intersection, which must now be read in connection with the other section, and which is contained, as we have shown, in Art. 66%, Sec. 2, Sub-sec. 20, was first enacted in 1943 by Chap. 1007 and became effective on June 1, 1943. All of the cases in this Court which have considered the duty of vehicles entering a favored highway from an unfavored highway were decided prior to the provisions of this statute defining intersection. In the case of Shedlock v. Marshall, No. 101 here, the court granted the defendant’s third prayer which quoted the statutory definition of intersection and told the jury that if they should find that the location of the accident ’ “is within the area within which vehicles traveling upon Philadelphia Road and Monument Street, in the direction in which the respective automobiles are being driven, may come in conflict with one another,” then “it became the duty of the plaintiff to yield the right-of-way to the auto ²³⁰ mobile of the defendant traveling on