Sullivan v. Costanza

Digges, J., delivered the opinion of the Court. This appeal questions the propriety of Judge Maguire’s action in the Circuit Court for Baltimore County in directing a verdict for the appellee-defendant after concluding the appellant-plaintiff 1 was guilty of contributory negligence as a matter of law. The relevant facts begin with a four car accident on the morning of May 10, 1968, which blocked the intersection of Pulaski Highway (Route 40) and Chesaco Avenue. Pulaski Highway in this general area has four lanes, two for traffic traveling west and two for eastbound traffic.

David Costanza, appellee, on his way to work, was proceeding west on Pulaski in the slow or outside traffic lane but was forced to stop because traffic in both lanes was backed up for one half mile. Thereafter traffic in both lanes behind him also came to a standstill. Costanza states that he decided to telephone his office concerning his travel difficulty. Upon observing an outside telephone booth about twenty feet to his rear on a nearby business property, but without looking any further to his rear appellee attempted to drive to his right out of his lane of traffic across the shoulder to make the call.

He had moved but a short distance onto the shoulder when his automobile was sideswiped by a large tow truck owned and operated by appellant Wayne Sullivan. Sullivan, who owned a garage and whose tow truck was licensed by Baltimore ⁶⁷⁴ County, had been called by the Baltimore County police to remove the four damaged vehicles blocking the intersection of Pulaski and Chesaco. With the maximum speed limit on Pulaski Highway being fifty-five miles per hour he proceeded at a speed of approximately forty-five in a westerly direction on that road in the far right lane. Observing halted traffic ahead blocking both westbound lanes he reduced his speed and pulled his tow truck onto the highway’s right shoulder.

Sullivan proceeded at twenty miles per hour along this shoulder which was paved and of varying width. He passed the halted traffic to its right until halted himself by the collision with the Costanza vehicle. Appellant’s truck was equipped with “emergency lights on the front and to the rear, a beacon light on the top, and a large air horn for emergency cases.” He testified “the emergency lights, including the beacon light were turned on when he left his garage and were operating at the time of the accident.” He agrees, however, that at no time did he sound his “loud air horn.” Additional facts will be added where appropriate during the course of this opinion. Code (1957, 1967 Repl.

Vol.), Article 66%, section 2 (a) (1) defines authorized emergency vehicles as follows: “Vehicles of the fire department, salvage department, police vehicles, and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the commissioner or the chief of police of an incorporated city.” Article 66%, section 214 allows an authorized emergency vehicle under specified conditions to proceed contrary to the mandate of rules of the road. This section reads: “The prima facie speed limitations and provisions relative to right-of-way stopping at through highways, rules of the road, traffic-control devices and signals set forth in this article ⁶⁷⁵ shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle. . .” (emphasis added). With the parties apparently in agreement, Judge Maguire as a matter of law determined the tow truck was an authorized emergency vehicle as defined in section 2 (a) (1). However, assuming this to be true, we can not agree with the trial judge’s conclusion that the operator of an authorized emergency vehicle was required by section 214 to sound his “bell, siren, or exhaust whistle” and that Sullivan’s conceded failure to do so constituted contributory negligence as a matter of law. 2 We do not read section 214 as requiring this result.

Clearly the section does not make it unlawful for an authorized emergency vehicle to proceed on a highway, even on an emergency mission, without audible signal by “bell, siren, or exhaust whistle.” We hold the failure to sound the audible signal merely strips the authorized vehicle of its privilege to proceed without regard to speed limitations, right of way provisions, traffic control devices and other rules of the road. Stated another way, failure to sound the audible bell, siren or exhaust whistle does not make driving an authorized emergency vehicle on a highway illegal, it merely results in a requirement that such vehicle be operated in