State Ex Rel. Balderston v. Hopkins

Sloan, J., delivered the opinion of the Court. This case is the result of a collision of two trucks, driven respectively by Richard M. Balderston and the defendant, Edgar P. Hopkins, on the 22nd.day of June, 1936, in which Mr. Balderston was instantly killed. At the conclusion of the plaintiff’s case, the defendant offered a prayer for a directed verdict on the ground that there was no legally sufficient evidence of his negligence, which was granted, and from a judgment in his favor the plaintiffs appeal. The only living eye-witness is the defendant.

The defendant, Edgar P. Hopkins, between 5:30 and 6 o’clock, on the morning of June 22nd, 19:36, was driving his truck south on a gravel road, known as the Blythdale-Battle Swamp Road, between the towns of Rising Sun on the north and Perryville on the south, in Cecil County. The truck was a Ford one and a half ton dual-wheel dump truck, and was loaded with five tons of gravel. • Richard M. Balderston was driving north a lighter Ford “Pick-up” truck. Whether loaded or not does not appear; but he used it to haul milk every day for his brother, Lloyd Balderston. The extreme width of the Hopkins truck was six feet eight inches; of the Balderston truck, five' feet seven inches.

The trucks collided about four miles south of Port Deposit. The road at the place of collision was seventeen and a half feet wide; dense woods on both .sides, the underbrush being close to the edge of the road. When the trucks ³²³ stopped the Balderston truck was off the east, its right, side of the road, the left front wheel “sitting out slightly on the edge of the highway,” indicated on a sketch by the brother, Lloyd Balderston, at or near a telephone pole, and the Hopkins truck was sixty feet south on the same east side of the road, headed southeast, one-third off the road, with its front wheels imbedded partly in a clay and gravel bank. The pole was seventeen inches off the easterly edge of the road, and the Balderston truck stopped seven feet north of it.

The decedent’s brother, Lloyd Balderston, who lived about six miles away, arrived at the scene of the accident about 6:30 o’clock. He testified that he traced wheel marks from a furrow made by the right rear tire of the Balderston truck from a point seven feet north of the pole to the end of the road ten feet south of it; there were no marks on the gravel road. Hopkins had made a statement to a traffic officer that his truck had gone thirty-eight feet after the collision. Assuming that the sixty feet were measured from the rear of the Balderston truck to the left side of the Hopkins truck, and subtracting seventeen feet plus thirty-eight feet from sixty feet, it would leave a space of five feet south of the mark to which Lloyd Balderston testified in which the plaintiffs contend the collision occurred, but to that might be added the length of one or both trucks, and we are not informed as to their lengths.

The plaintiffs assume that the point at which the track from the right rear wheel of the Balderston truck intersected the east edge of the road is the point at which the collision occurred, and, therefore, the defendant’s truck was five feet over the center line of the road, and this encroachment, and violation of the center line rule (Code [Supp. 1935] art. 56, sec. 209, Act of 1929, ch. 224), was the cause of the accident. These automobile accidents, where no eye-witnesses testify, are not so simple problems in arithmetic. As said in the recent case of Shafer v. State, use of Sundergill, 171 Md. 506, 507, 514 ,- 189 A. 273, 276 , “In the marks on the side of the road * * * the court finds no evidence legally sufficient to indicate ³²⁴ the cause of the collision. They do not carry the view back of the fact of a collision throwing the vehicles to the one side.

There may be room for conjecturing the cause, but nothing more. And ‘in matters of proof we are not justified in inferring from mere possibilities the existence of facts.’ Balto. & O. R. v. State, use of Savington, 71 Md. 590, 599 , 18 A. 969 .” There were no marks on the road to indicate just where the trucks were immediately before or at the time of collision, as in Wolfe v. State, use of Brown, 173 Md. 103 , 194 A. 832, 837 , which distinguishes it from the Sundergill case, supra; Williams v. State, use of Ellis, 161 Md. 39 , 155 A. 339 . One fact we do know, and we get this from the photographs, and that is that, when the collision occurred, the trucks were side by side, but unfortunately too near each other. There are other facts in evidence which add to the confusion and doubt as to just how this accident could and did happen.

A witness, Ray Blivens, testified that he lived on a farm along the Battle Swamp Road, in a house located about one hundred yards from the road, and near the scene of the collision, which occurred about 5:30 o’clock. While at breakfast he saw two trucks going south, oxie a red truck driven by the defendant Hopkins,