Sun Cab Co. v. Carter

Orth, J., delivered the opinion of the Court. By declaration twice amended JAMES PHILIP CARTER and HENRIETTA CARTER, his wife, appellees, sued SUN CAB COMPANY, INC. (Sun Cab), appellant, in tort in the Superior Court of Baltimore City claiming, on behalf of Mr. Carter, damages arising from injuries to his person and property, and, on behalf of Mr. and Mrs. Carter, damages for loss of consortium, resulting ³⁹⁸ from an accident involving an automobile operated by Mr. Carter and a taxicab operated by Thomas T. Rosiak, an employee of Sun Cab. 1 Sun Cab pleaded the general issue. See Maryland Rule 320 d 6 (b).

As the case went to the jury they were to determine only the issue of damages. The jury found a verdict for Mr. Carter and assessed damages in his favor in the amount of $20,945.40, and a verdict for Mr. and Mrs. Carter and assessed damages in their favor in the amount of $1,500. Judgments nisi were entered. Sun Cab appeals from the judgments absolute entered in due course.

I Appellees showed the facts and circumstances of the accident through the testimony of Mr. Carter and Rosiak. It was adduced from them that Lombard Street, running east and west,, was a favored street at its intersection with Conkling 'Street running north and south, there being a stop sign on Conkling Street controlling northbound traffic entering the intersection. About 6:20 p.m. on 13 February 1966 Rosiak, in the course of his employment, was driving his cab in a northerly direction on Conkling Street. Going about 20 miles an hour, he entered the intersection of Conkling and Lombard Streets without stopping.

He tried to apply the brakes but the “vehicle just kept on going.” The cab struck the car being operated by Mr. Carter in an easterly direction on Lombard Street at a speed of about 15 miles an hour. The front end of the cab struck the middle right side of Carter’s car. The impact occurred, according to Rosiak, about 5 to 8 feet into the intersection, “just past the cross walk. I wasn’t completely into the intersection. * * * I wasn’t halfway into the intersection.

I was just part of the way into it.” This evidence was uncontroverted. At the close of the evidence offered by appellees, ap ³⁹⁹ pellant moved for a directed verdict, including as a ground therefor that Carter was contributorily negligent as a matter of law. Rule 552 a. The motion was denied.

Appellant then offered evidence and by so doing withdrew the motion. Rule 552 b. Appellant renewed the motion at the close of all the evidence and it was denied. Appellees moved for a directed verdict “as to negligence” and the court said: “I will grant the plaintiffs’ motion for a directed verdict as to negligence.

We have previously discussed the issue of contributory negligence and I have indicated to the defendant that I saw no evidence of contributory negligence in the case.” Counsel for appellant said, “I will take my exception relative to that when the Court directs the verdict to the jury and not at this time.” 2 The court instructed the jury: “From the uncontroverted evidence in this case it is clear that the accident was caused by the cab driver’s failure to stop at the stop sign, and therefore you are instructed as a matter of law that the defendant Sun Cab Company, Inc. was negligent and its negligence caused the accident. Thus the only issues for you to decide in this case are with respect to damage.” See Rule 552 e; Brown v. Ellis, 236 Md. 487 . At the conclusion of the charge appellant excepted to the court’s “granting of a directed verdict as to negligence in this case on the issues of primary negligence and contributory negligence”, and stated grounds therefor. Appellant also excepted to the failure of the court to grant its prayer no. 6 which included a request to instruct “If the Jury believes from the evidence that the Defendants were guilty of negligence, yet if they find from the evidence that the Plaintiff was also guilty of negligence and that such negligence contributed to the happening of the accident then the verdict of the Jury must be for the De ⁴⁰⁰ fendants without regard to whose negligence was the greater.” On this state of the record appellant presents the question: “Did the trial court commit error in directing a verdict for the plaintiff on the question of the absence of any contributory negligence on the part of the plaintiff, James Carter; and additionally in instructing the jury to that effect?” The argument under the question is headed: “The trial court committed error by directing a verdict in favor of the plaintiffs on the question of the contributory negligence, vel non.” In arguing the question appellant concedes that no niceties of speed and distance are involved in the circumstances of the accident here.

The basis of his contention relates solely to the question whether or not the lights on Carter’s car were on at the time of the accident. Rosiak’s testimony was that it was dark, “raining very hard”, and “it was very little street illumination.” According to Carter a light rain was falling but visibility was very good. “You could see ahead for a block, a block and a half or whatever your vision was at that time.” He also said that “at that particular time that place is lit up like a Christmas tree” by a filling station on the corner. Rosiak said the lights of his cab were on but he “couldn’t possibly say” if the lights of Carter’s car were on. Carter said on cross-examination of him that it was dark enough for him to have his lights on.

In answer to the question, “And you did have your lights on, correct?”, he replied, “Yes, my lights were on.” Counsel for Sun Cab referred to Carter’s deposition of February 1968. He read from the deposition: “ ‘Q. What time of day or night was it? A. I don’t recall the time. Q. You don’t recall?

You do recall the condition of the weather? A. Yes, there was light rain falling. ⁴⁰¹ Q. Light rain falling, was it dark enough for you to have your lights on at that time? A. No, no.’ ” Counsel asked: “Now, which is correct, sir? Was it dark enough for you to have your lights on?” Carter said: “Well, let me say it was — when that question was asked I had my lights on, but as I have stated when I get extremely upset the reason for that answer that he just read is when I get extremely upset I tighten the muscles on each side, also in back of my head.

I become so upset that I become frightened and then the people and the faces in front of me they become unreal and all I see is a bunch of noise and all and they are doing is yelling and all and all I want to do is run, and when you ask me and I cannot give you — I lose all line of thought and I am not responsible for what comes out of me and that is why that came out of me, but my lights were on, check with the police officer, he should know.” Counsel again referred to the deposition, reading: “ ‘Q. And you don’t know whether your headlights were on or not? A. My headlights were not on. Q. The headlights weren’t on? A. It wasn’t dark enough.

Q. To have the lights on? A. To have the lights on.’ ” Counsel inquired: “Now, are you saying, sir, that 6:20 p.m. on February 13, 1966 — * * * On that day with the light rain falling that it was not dark enough for you to have your headlights on? A. I just made a statement and I said my headlights were on. I also made a statement saying ⁴⁰² why I said that and as soon as I could get control of myself I made that correction.

Now, what more can I say? Q. If a light rain was falling was it necessary to have your windshield wipers on and working at the time? A. Yes, my wipers were on and my lights were on.” As part of its case appellant offered into evidence those parts of the deposition of Carter which were read into the record during the cross-examination of Carter. 3 They were received without objection. Any part of a deposition of a party may be used by an adverse party 4 at the trial, so far as admissible under the rules of evidence, for any purpose.

Rule 413 a 2. See Bauman v. Woodfield, 244 Md. 207 . So a defendant may put a plaintiff’s deposition in evidence as part of the defendant’s case, so far as the deposition is admissible and relevant. Raleigh Mfgs. v. Cantela, 255 Md. 508 .

Such deposition can be used as substantive evidence even though the deponent is in court and available as a witness, Zecca v. Claus, 247 Md. 1 , its use not being limited to impeachment of the adverse party, although it may be used for that purpose too if the adverse party testified, Snowhite v. State ex rel. Tennant, 243 Md. 291 . And that the deposition conflicted with testimony at the trial did not prevent the testimony of the trial from having any weight, but went to its credibility and weight. Campbell v. State ex rel.

Dix, 203 Md. 338 . And we note that because appellant used Carter’s deposition for a purpose permitted by Rule 413 a 2 Carter was not made appellant’s witness thereby. Rule 413 c. ⁴⁰³ In considering whether the verdict rightly was directed against appellant, we must consider the evidence in a light most favorable to it, resolving all conflicts in its favor and assuming the validity of all inferences which naturally and legitimately may be drawn from such evidence. Vroom v. Arundel Gas Co., 262 Md. 657, 659 ; Hynes v. Hutzler Bros.

Co., 261 Md. 345, 346 . The undisputed facts were that appellant’s employee, Rosiak, driving a cab in the course of his employment, entered an intersection without stopping and yielding the right-of-way in obedience to a stop sign and struck a car driven by Carter. Code, Art. 661/2, § 233 (b). 5 These facts provide a clear case for the application of the Boulevard Rule with Carter being the favored driver and Rosiak the unfavored driver. The two physical factors necessary for the application of the Rule were present: (1) a favored street intersected by an unfavored street on which traffic was required to stop by traffic control device — a stop sign — and to yield right-of-way to traffic approaching on the favored highway, and (2) a collision occurring as a direct consequence of the entrance of a vehicle onto a favored highway in disregard of its obligation to yield the right of way.

As the Boulevard Rule was applicable Rosiak as the unfavored-driver had an absolute duty to stop and an absolute duty to yield the right of way. Thompson v. Terry, 245 Md. 480, 486 . Appellant does not dispute that because Rosiak did not stop he was negligent per se and that his negligence was the primary cause of the injury. But there was evidence adducing facts which were disputed.

This evidence, when considered in the light most favorable to appellant, all conflicts being resolved in appellant’s favor, and the validity of all inferences which naturally and legitimately could be drawn from such evidence being assumed, showed that it was dark and raining very hard, that there was very little street illumination at the scene of the accident, and that Carter’s car lights were not turned on. ⁴⁰⁴ Appellant claims that the lights were required to be on by the provisions of Code, Art. 66V2, § 271, 6 and that the failure to employ lights in the circumstances was “tantamount to contributory negligence; or at least makes same an issue for the jury.” The statutes requiring a driver to stop and yield the right of way at a stop sign do not relieve the favored driver of all duty to use care. Savage v. Mills, Admr’x, 237 Md. 204, 208 . The favored driver does not have a complete and absolute right of way with no duty to exercise reasonable and ordinary care for his own safety. But the Court of Appeals has “* * * jealously guarded and upheld the favored driver’s right of way in boulevard cases.” Brown v. Ellis, supra, at 495. “Though the duty of the unfavored driver 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. * * Dunnill v. Bloomberg, 228 Md. 230, 235 (citations omitted) ; Savage v. Mills, Admr’x, supra, at 208-209. “Contributory negligence is the doing of, or omitting to do, some act or thing which a reasonably careful and prudent person would not have done or omitted to do under the circumstances, and which, concurring and cooperating with the negligent act of defendant, thereby becomes the real, efficient and proximate cause of the injury.” Miller v. Michalek, 13 Md. App. 16, 19 , quoting 2 Blashfield, Automobile Law and Practice, 3rd ed. § 101.6, p. 20.

As contributory negligence is an affirmative defense, the obligation of showing it prima facie was on appellant. Within the definition, appellant had to show not only that Carter was negligent, but that the negligence contributed to the accident — by concurring and cooperating ⁴⁰⁵ with the negligent act of Rosiak it became thereby the real, efficient and proximate cause of the injury. 7 “Like primary negligence, contributory negligence is relative and not absolute, and being relative, necessarily depends on the particular circumstances of each case.” Miller v. Michalek, supra, at 19. On the particular circumstances of this case we think it clear that the evidence was not legally sufficient with respect to the contributory negligence of Carter to submit the issue to the jury. Even if Carter was negligent by failing to turn on his car lights because a reasonably careful and prudent person would not have omitted to turn them on under the circumstances, appellant still had to show that this negligence, concurring and cooperating with the acts of Rosiak in proceeding into the intersection without stopping and yielding the right of way, was the real, efficient and proximate cause of Rosiak’s cab striking Carter’s car amidships.

We have no difficulty in determining that reasonable minds could not differ in concluding that the evidence did not so show. It was not that Rosiak stopped and then proceeded into the intersection because he was unable to see Carter’s car approaching without lights. Had such been the circumstance, the jury may properly have found. Carter’s omission was negligence contributing to the injury.

On the contrary, the visibility of Carter’s car vel non played no part in the collision. Whether Rosiak could or could not have seen the Carter car approaching was immaterial on the facts here, because it is undisputed that he violated his absolute duty to stop and to yield the right of way. He proceeded into the intersection, not because he may not have been able to see Carter’s approaching car, but because when he applied the brakes his “vehicle just kept on going.” In these circumstances the collision would have occurred whether Carter’s car was seen by Rosiak ⁴⁰⁶ or not and whether it was possible to see it or not. Therefore, that Carter’s car was being driven without lights did not concur and cooperate with Rosiak’s negligent act (Rosiak’s negligence as the primary cause of the injury not being an issue before us) so as to become a contributory cause of the accident.

We hold the lower court did not err in directing the verdict as to the contributory negligence of Carter and that the instruction that it was appellant’s negligence which caused the accident, implying necessarily that there was no evidence sufficient to show contributory negligence on Carter’s part, was compelled by the evidence. See Barwood, Inc. v. Georgi, 253 Md. 29, 30-31 . II When the examination of Carter was completed appellant moved to strike his testimony. He gave as reasons: “[B]y his own admission he is not responsible for what he says when he is under stress such as at the time he attended the deposition and more particularly I believe it was obvious at the time.

Therefore, until it can be ascertained when he is not under stress the testimony is not worthy of belief and further that the testimony presented by him on his behalf is so contradictory that it has no probative force * * The court denied the motion. Appellant was referring to Carter’s explanation why he stated when deposed that his car lights were not on, set out supra. Appellant quotes in his brief a further statement by Carter in testifying: “Look, I stated a minute ago under questioning like this I get awfully upset and I cannot keep my line of thought * * We complete the statement from the transcript: “* * * and I don’t understand what you mean about my memory. If I can remember, I remember.

If I can tell you, I will tell you.” 8 Whether to receive Carter’s testimony was in ⁴⁰⁷ the sound discretion of the trial court. Prior inconsistent statements are to be distinguished from contradictory statements at the trial which render the evidence so unreliable on its face as to be without any probative value under the rationale of Kucharczyk v. State, 235 Md. 334 . There was no