Straughan v. Tsouvalos

Murphy, J., by special assignment, delivered the opinion of the Court. Chryson Tsouvalos and her husband, James, an elderly Greek couple (65 and 73 years of age respectively when the accident occurred), were struck by an automobile owned and operated by appellant Straughan on January 16, 1963 as they were walking across Eastern Avenue near its intersection with Oldham Street in Baltimore City. A jury in the Superior Court of Baltimore City awarded damages to Mrs. Tsouvalos for her injuries in the amount of $6,300’ and awarded $3,700 to Mr. Tsouvalos for his wife’s medical and hospital expenses and for his loss of her services. The lower court entered an order granting a new trial unless Mrs. Tsouvalos filed a remittitur in the amount of $800 and Mr. Tsouvalos a remittitur in the amount of $1,200.

The remittiturs were filed, and judgments were entered in favor of Mr. and Mrs. Tsouvalos in the respective amounts of $5,500 and $2,500. From those judgments Straughan has appealed to this Court, contending that the lower court erred in its instructions to the jury, and in admitting certain testimony at the trial. The essential facts are these: Appellees had left their home on the morning of the accident to walk to their bank on Eastern Avenue. They walked in an easterly direction on the south side of Eastern Avenue, arriving at the southeast corner of the intersection of Eastern Avenue and Oldham Street at approximately 11:10 a.m., at which time they prepared to cross to the northeast corner.

The intersection is controlled by an automatic traffic light and there is a ten foot marked pedestrian crosswalk from the southeast to the northeast corner. Oldham Street runs north and south and is fifty-six feet wide south of Eastern Avenue, but only forty-three feet wide north of Eastern Avenue. At this point, Eastern Avenue consists of four ten-foot lanes, two eastbound and two westbound. At approximately the same time that appellees were standing on the southeast corner of the intersection, the appellant, who was southbound on Oldham Street, had stopped his ve ²⁴⁶ hide for a red light at Eastern Avenue.

When the light turned green for traffic on Oldham Street, appellant made a left turn to proceed in an easterly direction on Eastern Avenue and, in so doing, the right front bumper of his automobile struck the appellees who, when the light turned to red for traffic on Eastern Avenue, began crossing from the southeast to the northeast corner of the intersection. The investigating police officer arrived at the scene of the accident after appellees had been taken by ambulance to the hospital. Appellant gave the officer a written statement at that time indicating therein that he was proceeding about fifteen miles per hour when the accident occurred; that he struck appellees at a point about ten feet north of the south curb line of Eastern Avenue and fifteen feet east of the southeast curb line; and that he did not see appellees “until they stepped from the curb.” Mrs. Tsouvalos, who did not speak English well, testified at the trial through a duly sworn interpreter. She stated that she and her husband began to cross Eastern Avenue when the traffic light turned in her favor.

She testified that before they started across the street she saw that the light was in her favor and that there was no traffic; that had there been traffic, she would not have crossed; that “I stepped down on the street from the sidewalk and I saw the car coming, and we were hollering at him to stop, stop, but he did not stop, but he strike us and threw us on the street”; and that the automobile was “coming from Oldham Street, cross Eastern Avenue and came to the corner.” When asked how far away appellant’s vehicle was when she first saw it, she responded by equating the distance with that of the width of Eastern Avenue. In response to the further question of whether, when she first saw appellant’s automobile, it was “farther away” than the length of a ten foot table or of a sixteen foot room, she answered: “About that it had to be.” Mr. Tsouvalos, also testifying through the interpreter, stated that when the light turned in their favor he and his wife “stepped immediately down” and started walking in the crosswalk, and had proceeded “about six or seven feet” after which “all sudden like, a car came on us and strike us.” He further testified that before stepping into the street he ²⁴⁷ looked left and right, but saw the appellant’s vehicle “for the first time when it came to, just to strike us, about six or seven feet in the street, it all, all sudden like.” Appellant testified that his vehicle was the first in line waiting for the red light on Eastern Avenue to change to green; that when the light changed he looked for northbound traffic on Oldham Street, but there was none coming; that he looked for pedestrians, but there were none; that he then proceeded to make his left turn, and “as I was coming up then I seen Mr. and Mrs. Tsouvalos and I applied my brake.” Appellant further testified: “When I was traveling east, after I made my turn, that’s when I seen them”; that he first saw appellees when they were in the street “about four to five feet from the curb”; and that he was then “practically on top of them” and although he applied his brakes he could not stop. He also testified that although he told the police officer that he was going fifteen miles per hour, he wasn’t sure of his speed, but wasn’t traveling fast. There was a conflict in the evidence as to whether appellees were within the pedestrian crosswalk or several feet east of it when the impact occurred.

An eyewitness who observed the accident from a considerable distance placed appellees within the crosswalk, as did the testimony of appellees themselves. Appellant placed appellees several feet east of the crosswalk at the time of the accident. There was evidence showing that after the impact, appellant’s vehicle moved ahead only six to eight inches, leaving no skid marks; that the front of appellant’s vehicle came to rest five or six feet east of the east side of the crosswalk; that Mrs. Tsouvalos was thrown by the impact of the collision about eight to ten feet and that she and her husband had come to rest in the street about seventeen feet east of the southeast curb line and eight feet north of the south curb line in Eastern Avenue. I Appellant advanced the theory at trial that the evidence permitted a finding that Mrs. Tsouvalos (and her husband) had begun crossing in the crosswalk at a time when appellant’s vehicle was in such close proximity that he could not, in the exercise of ordinary care, bring his vehicle to stop in time to ²⁴⁸ avoid the collision.

He embodied this theory in his second and third requests for instructions as follows: “2. If the jury find that the accident happened within the pedestrians crosswalk, then even though the defendant did not have the right of way, he was entitled to proceed forward on the assumption that a pedestrian, then crossing within the crosswalk, would not begin to do so at a time when the defendant’s vehicle was in such close proximity to the pedestrian that he, in the exercise of ordinary care, could not bring his vehicle to a stop in time to avoid the accident, then the plaintiff was guilty of contributory negligence and the verdict of the jury must be for the defendant. “3. Even though pedestrians have the right of way within the crosswalk, the driver of a vehicle is entitled to assume that a pedestrian will not assert his right-of-way and attempt to cross the street at a time when the defendant could not, in the exercise of ordinary care, stop his vehicle in time to avoid striking the pedestrian.” The trial judge declined to grant the requested instructions or to incorporate their basic substance in his charge to the jury. Appellant contends that the court’s action constituted reversible error.

We do not agree. Code (1957), Article 66)4, Section 193 (a)(1) (2) provides that whenever traffic is controlled by signals exhibiting different colored lights successively, all vehicles shall yield the right of way to pedestrians lawfully within the intersection at the time such signal is exhibited, and that pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk. Under this statute and predecessor statutes of like import, it has been repeatedly held that a pedestrian has a right to assume that the motorist will obey the law and yield the right of way to him; in other words, a pedestrian favored as to right of way is not bound to anticipate or required to foresee that his rights would not be honored. Folck v. Anthony, 228 Md. 73 (1962) ; Jackson v. Yellow Cab Co., 222 Md. 367 (1960); Henderson v. Brown, 214 Md. 463 ²⁴⁹ (1957); Caryl v. Baltimore Transit Co., 190 Md. 162 (1948).

On the other hand, a pedestrian at a crosswalk is not free from obligation to observe the rule of due care and caution to avoid injury. Sun Cab Co. v. Cialkowski, 217 Md. 253 (1958) ; Chasanow v. Smouse, 168 Md. 629 (1935). Hence, before entering the intersection at the crosswalk, the pedestrian must use due care to look for oncoming vehicles, since he cannot place himself directly in the path of oncoming traffic in blind indifference to his situation. Baker v. Commissioner, 228 Md. 454 (1962) ; Legum v. State, 167 Md. 339 (1934).

This does not mean that the pedestrian, having looked as he started to cross, and the way appearing clear, must continue to look up and down the street during the course of the crossing, since as previously indicated he is entitled to assume that an oncoming vehicle would respect his right of way. Henderson v. Brown, supra; Wintrobe v. Hart, 178 Md. 289 (1940) ; Sheriff Motor Co. v. State, 169 Md. 79 (1935). Conversely, even though only ordinary care is required of the motorist, in approaching a pedestrian crosswalk which is likely to be used by persons under circumstances requiring the motorist to yield to the pedestrian’s right of way, he is required to anticipate the presence of pedestrians in the crosswalk and to exercise much greater vigilance and caution to look out for such a pedestrian than the pedestrian is required to exercise to look out for the motorist. Heffner v. Admiral Taxi Service, Inc., 196 Md. 465 (1950) ; Wintrobe v. Hart, supra; Merrifield v. Hoffberger, 147 Md. 134 (1925).

It is, therefore, incumbent upon the motorist not only to be continuously watchful for the possible presence of persons on the crossing, but to have the speed of his vehicle so reduced and controlled that it can be readily stopped or diverted in time to avoid a collision with a pedestrian in the crosswalk who might be exposed to such danger. Sugar v. Hafele, 179 Md. 75 (1941) ; Merrifield v. Hoffberger, supra. Appellant acknowledges that a prayer similar in substance to the instructions now in question was denied in Wintrobe . In that case, as here, a pedestrian having the right of way in a crosswalk was struck by a motorist making a left turn into the intersection.

The pedestrian had looked, saw no vehicles coming and started across the intersection with the light in her ²⁵⁰ favor. The motorist, proceeding at about fifteen miles per hour, was unable to stop¡ in time to avoid colliding with the pedestrian. The lower court instructed the jury that if it found from the evidence “that the plaintiff stepped or walked into the path or side of the defendant’s automobile at a time when it was so that by the exercise of ordinary care and caution, the driver of said automobile could not bring same to a stop in time to avoid the accident complained of, then the defendant is not liable.” We held that it was error to grant such an instruction since the motorist was required to anticipate the presence of pedestrians at the crosswalk, and the circumstances were there such that the motorist was required to yield the right of way. Similarly, in Sun Cab Co. v. Cialkowski, supra, the pedestrian having the right of way was struck by a motorist in the crosswalk in a street intersection controlled by traffic lights.

The evidence showed that the pedestrian had looked and observed the defendant’s vehicle about three quarters of a block away. The pedestrian was struck when he was about six feet into the street. The defendant contended, as appellant here contends, that the plaintiff was contributorily negligent because he stepped into the path of his vehicle at a time when he was so close that he could not stop in time to avoid the accident. He sought an instruction that regardless of whether it was the pedestrian’s duty to' look for oncoming traffic, if he did look for such traffic but failed to see it, then nevertheless the pedestrian was guilty of contributory negligence.

Under the circumstances of that case, we held that such an instruction would have been improper in view of Wmtrobe. As in Wmtrobe, we find an insufficient evidentiary predicate to justify granting the requested instructions. The uncontradicted evidence indicated that the aged appellees began crossing Eastern Avenue when the light changed in their favor (having looked for oncoming traffic) and had traversed approximately one lane (10 feet) of traffic on Eastern Avenue when struck. Neither the appellant’s testimony that he had looked for crossing pedestrians and had seen none, nor Mrs. Tsouvalos’s testimony that she was struck as “we just stepped down” would constitute legally sufficient evidence to entitle appellant to an instruction that, although he did not have the right of way, he ²⁵¹ could nevertheless proceed through the intersection on the assumption that no pedestrian would begin to exercise his right of way at a time when the motorist could not possibly stop to avoid a collision.

Nor would the coupling of this testimony with appellant’s further testimony that he was “practically on top” of appellees when he first saw them, provide sufficient evidentiary foundation upon which such a prayer could be based. And we emphatically reject appellant’s interpretation of Mr. Tso-uvalos’s testimony to the effect that appellees stepped into the street at a time when appellant’s vehicle was only five feet from them. Mr. Tsouvalos’s testimony, as we read it, was that he saw appellant’s vehicle for the first time when he was some five to seven feet out into the street. We, therefore, find no error in the court’s refusal to grant appellant’s second and third requests for instructions.

II Appellant also contends that the following portion of the court’s charge constituted an incorrect and prejudicial statement of the law:— “A motorist is bound to constantly observe the highway in front of him so as to discover persons thereon and to avoid striking them and to keep his motor vehicle under such control that he may readily operate it or stop it to avoid a collision.” (Emphasis supplied) Appellant argues that the correct rule is set forth in Deford v. Lohmeyer, 147 Md. 472 (1925) as follows: “It is the duty of the driver of a motor vehicle, in approaching a street crossing, to have the speed of the car SO' reduced, and to keep it under such control, as to obviate, so far as reasonably possible, the danger of collision with persons crossing the street on foot.” (Emphasis supplied) The disputed part of the court’s charge appears based upon language appearing in Merrifield v. Hoffberger, supra and Sheer v. Rathje, 174 Md. 79 (1938). In Merrifield we stated (p. 140) that “drivers of automobiles, when approaching street crossings and passing over the way used by pedestrians, must slacken ²⁵² the speed of the automobile and have the same under such control as to be able to avoid a collision with a pedestrian, either by stopping the automobile or diverting its course.” We further stated in that case at p. 141 that “at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that on the shortest possible notice they can stop their cars so as to prevent injury to pedestrians.” In Sheer we said (pp. 83-84) that it was incumbent upon the motorist at a street crossing “to be continuously watchful for the possible presence of persons on the crossing, and to have the speed of the car so reduced and controlled that it could be