Tippett v. Quade

Scanlan, J., delivered the opinion of the Court. Appellant, John Lewis Tippett, appeals from a judgment in appellee’s favor entered in a motor vehicle wrongful death action, one of two cases growing out of the same accident ⁵¹ which were consolidated for trial below. The first case, John Lewis Tippett v. Patricia L. Quade was filed as Law No. 6962 in the Circuit Court for Charles County. In that case, the jury returned a verdict in favor of the defendant, Patricia L. Quade, from which Tippett did not appeal.

The second case was designated in the Circuit Court for Charles County as Helen M. Quade, Individually and as Administratrix of the Estate of Carroll Patrick Quade, a Minor, Deceased v. John Lewis Tippett and Patricia L. Quade, Law No. 6967. Both cases were heard before a jury on August 22nd and 23rd, 1972, with Judge James C. Mitchell presiding. In case No. 6967, the jury returned a total verdict of $60,000 in favor of the appellee against the appellant and Patricia L. Quade. A remittitur was entered in the case of Helen M. Quade, suing in her capacity as administratrix, in the amount of $8,800, resulting in a total verdict in favor of the appellee, Helen M. Quade, individually and as administratrix, in the amount of $51,200.

The appellant and Patricia L. Quade noted timely appeals from that judgment. Although Patricia L. Quade is nominally an appellant in this Court, she supports the position of the appellee on the basic issue presented on this appeal to which we refer immediately below. 1 THE QUESTION PRESENTED The appellant advances ten claims of alleged error in the proceedings below. Because our disposition of one of his points requires reversal of the judgment against the appellant, it is not necessary to reach his nine other contentions. The basic issue which we consider on this appeal is whether the trial court improperly applied the “boulevard rule” by allowing the jury to consider whether ⁵² the appellant, the favored driver, was guilty of contributory negligence rising to the level of a concurring proximate cause of the accident in which the appellee’s 13 year old son, a passenger in the car driven by the unfavored driver, Patricia L. Quade, was killed.

The appellant raised this contention in motions for directed verdict submitted at the close of the appellee’s case and again at the conclusion of all the evidence. The trial judge reserved ruling on the last motion. Following the jury’s verdict, he denied it. For the reasons stated below, however, we find that the trial court erred in not granting appellant’s motion for a directed verdict, in that the evidence demonstrated that it was the negligence of Patricia L. Quade in suddenly backing out onto the main highway which was the proximate cause of the accident in which the decedent was killed, and that there was no evidence to support a finding that the appellant, the favored driver under the “boulevard rule,” could have avoided the tragic accident, or that any alleged negligence on his part constituted a concurring proximate cause thereof.

In holding that the trial court erred in denying appellant’s motion for a directed verdict, we are mindful that the evidence and the reasonable inferences to be drawn from it must be considered in the manner most favorable to the appellee. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 249 , 272 A. 2d 1 (1971). We find, however, in this case that there was no rational basis in the evidence upon which the jury could have returned a verdict against the appellant and so reverse the judgment against him. Lusby v. First National Bank, 263 Md. 492, 506 , 283 A. 2d 570 (1971).

We turn now to a presentation of the facts from which we have drawn that conclusion. THE FACTS The accident out of which this case arose took place at approximately 4:15 P.M. on February 25, 1970, on Maryland Route 5, in St. Mary’s County. Route 5 is a four lane divided highway running generally north and south. The accident took place at a point on the outside (curb), southbound lane of Route 5 as it passes Wood’s Foodland Store. ⁵³ Moments before the accident, the appellant was proceeding south in the outside lane, driving a 1970 heavy-duty pickup truck.

The back of the truck was loaded with a thousand pounds of sand and gravel, an outboard motor, and forty-seven large chimney blocks, weighing approximately one hundred pounds each. At that time the posted speed limit on Route 5 at the point of the collision was fifty-five miles an hour. Tippett testified that he was traveling at a speed of approximately forty-five to fifty miles an hour when a car driven by Patricia Quade suddenly backed out in front of him “like a deer running across the road.” On seeing the Quade car loom up in front of him, the appellant braked his truck and turned the wheel to the left toward the inside, southbound lane in an attempt to avoid the collision. Tippett testified that Patricia Quade’s vehicle was in the middle of the road when his truck hit it.

The truck struck her car at a slight angle and then careened to the left, eventually going through the wall of a building on the left side of the median strip which divides Route 5. As a result of the collision, Carroll Patrick Quade, the minor son of the appellee and brother-in-law of Patricia Quade, was killed. Mrs. Quade was not seriously hurt. Tippett was knocked unconscious and suffered substantial injuries, some of a permanent nature.

Patricia Quade testified at trial that she had come to the Wood’s Foodland Store on the day of the accident in order to return some soda pop bottles. She testified that she pulled up to the store with the front of her car pointing northward at a slight angle. The deceased, Carroll Quade, went in the store to inquire where he should deposit the empty bottles. Learning that the bottles should be dropped off in the rear of the store, he came back out and reentered the car and sat in the right front seat.

Mrs. Quade testified that she then backed away from the front of the store towards Route 5 approximately 20 feet, stopped, looked in both directions and saw the appellant’s truck approaching some 1100 or 1200 feet north on Route 5 heading south. Then, according to her testimony, she shifted out of reverse, took her foot off the ⁵⁴ brake and put it on the accelerator. At that moment, she claimed, the appellant’s truck hit her car, “just a few seconds” after she first saw it approaching. She testified that when the crash took place “we went sliding down the road,” but she was unable to say how far down the road her car was pushed as a result of the impact.

John Douglas Browning was an eyewitness to the accident. He testified he was standing in front of the store very near the spot where Patricia Quade had parked her car. Browning stated that Mrs. Quade then backed her car up so that her rear wheels were in the middle of the traveled portion of Route 5 when the accident occurred. Browning stated that a very short moment of time ensued from when Mrs. Quade backed her car out of the lot, onto the roadway and in front of appellant’s truck until the moment of the impact.

Robert Eugene Cooper, Jr., was another eyewitness to the accident. He was riding his bicycle down Route 5 when he saw Mr. Tippett’s truck traveling south on the roadway, proceeding about the same rate of speed as the other cars moving on the road. He'testified that the Quade vehicle backed out in front of appellant’s truck and in doing so moved out over the shoulder of the road onto the traveled portion of the roadway. Dorothy D. Taylor testified that she was parked outside of Wood’s Foodland Store on the day of the accident.

She knew Mrs. Quade and saw her car parked on the lot. She testified that she saw Mrs. Quade back away from the front of the store toward the highway. She stated that Mrs. Quade stopped backing up just prior to reaching the shoulder of the road. At that moment, Mrs. Taylor said, one of the children in the back of her car asked her something and she turned her head to see what the child wanted.

At that moment she heard the impact of the crash, but did not actually see the accident take place. She was unable to say whether Mrs. Quade had continued to back up after stopping just before reaching the shoulder of the road. The deposition of Robert Thomas Kleinpaste, a witness for the appellee, was read into evidence over the objection of the ⁵⁵ appellant, the latter claiming that Mr. Kleinpaste was a resident of Maryland, had been duly served but had not elected to appear. In his deposition, Kleinpaste testified that a truck similar to the appellant’s passed him on Route 5 traveling at a speed of approximately 70 miles an hour.

Kleinpaste also testified on deposition that as the truck passed him and proceeded south, it was weaving from side to side and kicking up dust from the shoulder of the road. Shortly after the truck had passed him, Kleinpaste turned off Route 5 and did not see the actual collision because his view was obstructed by a rise in the road, although he claimed to have seen debris flying through the air. He testified that when he last observed the appellant’s truck, it was in the southbound righthand lane. State Trooper Walter Biscoe testified that he found wet marks, debris and skid marks reaching at least six feet into the traveled portion of the roadway.

He said that the skid marks began on the white line which separates the inside and outside lanes and continued to the rear of Patricia Quade’s car which had been pushed down the road from the point of impact. It was Biscoe’s opinion that the accident occurred at a point at least six feet out from the shoulder and in the traveled portion of the roadway. He also stated that the appellant had been seriously injured in the accident and had to be carried from the scene. Trooper Biscoe later observed the appellant lying on the x-ray table at St. Mary’s Hospital.

Biscoe stated that appellant had a strong odor of alcohol upon his breath, was talking incoherently, and had urinated on himself while lying on the table in a semi-conscious state. A hospital record, dated February 25, 1970, the day appellant was admitted, contained a notation by a nurse that there was “alcohol odor on breath.” Doctor David Mossman, who saw the appellant on February 26, 1970, the day after the accident, testified that at that time appellant was still talking incoherently and mumbling, but that any alcohol consumed 24 hours earlier could not explain those symptoms. The appellant denied that he had been drinking prior to ⁵⁶ the accident, but did admit that on the morning of the accident he had a glass of cold wine at home prior to breakfast. Trooper Biscoe, who inspected the appellant’s truck after the accident, found three empty bottles of beer and one full bottle of beer on the floor on the passenger's side and also a pint of port wine which was about one quarter full.

On cross examination, appellant denied that he had stopped in a liquor store in New Market, Maryland to purchase alcoholic beverages on the day of the accident. This testimony was later contradicted by the testimony of one of the employees of the liquor store who stated that on February 25, 1970 the appellant had been in the store and had purchased a bottle of port wine. Forrest A. Daniel, who testified as a rebuttal witness for the appellee, stated, contrary to the testimony given by Patricia Quade, that visibility from the point where Mrs. Quade was parked in front of the store, looking northward up Route 5 in the direction from which the appellant was approaching on the day of the accident, was restricted to approximately 300 feet because of a hill which substantially limited visibility. THE TRIAL JUDGE DID NOT APPLY THE BOULEVARD RULE PROPERLY: APPELLANT’S MOTION FOR DIRECTED VERDICT IN HIS FAVOR SHOULD HAVE BEEN GRANTED There is no dispute with the general proposition that in ruling on a motion for directed verdict the trial court must assume the truth of all credible evidence on the issue and of all inferences fairly deducible therefrom, and must consider them in the light most favorable to the party against whom the motion is made.

Miller v. Michalek, 13 Md. App. 16, 17 , 281 A. 2d 117 (1971). Nevertheless, this “is not to say that in every case where [a party] . . . has introduced some . . . evidence of negligence, [the case] . . . should go to the jury. If the direct evidence approaches the outer limits of credibility ... it would be insufficient.” Short v. Wells, 249 Md. 491, 497 , 240 A. 2d 224 (1968); Richards v. Huntt, 255 Md. 255, 261 , 257 A. 2d 412 (1969); see ⁵⁷ also 2 Harper and James on Torts, § 19.2 (1956). Applied here, the principle adverted to in Short v. Wells, supra, requires the conclusion that there was insufficient evidence to support any claim by Patricia Quade that the accident occurred on the shoulder and not in the traveled portion of Route 5.

It is true that Patricia Quade testified that she backed up to the shoulder of the road, but she also testified that after she was hit she was pushed down the road, although she could not remember how far. We find her testimony uncertain, if not equivocal. At no time did she testify that the crash took place on the shoulder of Route 5. Marshalled against this inconclusive testimony is the uncontroverted physical evidence, supplied through Trooper Biscoe’s testimony, that the accident took place at a point six feet out in the traveled portion of the curb lane, and the testimony of two disinterested eyewitnesses that the crash occurred in the traveled portion of the roadway.

In Short v. Wells, supra, the Court of Appeals stated that where a party’s evidence “approaches the outer limits of credibility” it will be deemed insufficient for purposes of determining a motion for a directed verdict. In Maryland, as elsewhere, “courts retain the power to set the limits of what is credible evidence.” Harper and James, supra at 1064. Thus, for example, in Baril v. New York, New Haven & Hartford Railroad Company, 90 Conn. 74 , 96 A. 164 (1915), the Connecticut Supreme Court refused to accept as sufficient to support a verdict the ipse dixit testimony of a plaintiff who claimed that he was hurt when he fell on unlighted stairs while he was passing from the ticket office of the defendant’s railway station under its tracks through a subway up to the platform on the far side of the tracks where he intended to take a train. Opposed to plaintiff’s statement was testimony by six disinterested witnesses that a half hour before the claimed accident, the plaintiff was lying drunk on the platform on the near side of the tracks some 200 feet from the stairs in question.

Under these circumstances, the Connecticut court held that the plaintiff’s evidence was insufficient to support a verdict in his favor. ⁵⁸ We believe that the unsupported and uncertain testimony of Patricia Quade “approaches,” if indeed, it does not exceed, “the outer limits of credibility . . . .” Short v. Wells, supra at 497. In either event, it was insufficent to serve as a basis for permitting the jury to speculate that the accident might have taken place on the shoulder and not on the traveled portion of the road. 2 We turn then to the “boulevard rule” issue on which this case ultimately turns. The so-called “boulevard rule” is legal shorthand for the judicial construction afforded the several requirements imposed upon drivers entering or crossing through highways, as these are set out in Article 66V2, §§ 11-401, 402, 403 and 404 of the Code. 3 In essence, the rule requires vehicles approaching a through highway from an unfavored road to stop and yield the