Trader v. White

Powers, J., delivered the opinion of the Court. Mrs. Lola White, who lives on West Road about two miles north of Salisbury, was injured in a motor vehicle collision which occurred about 10:00 P.M. on June 1, 1968 on West Road, at the driveway entrance to her home. She was then 62 years old. A short time earlier she had arranged to go to the store with Eddie Jones, a boarder in her home.

Jones was driving a 1948 pick-up truck, which he owned. Upon their return from the store, Jones, then headed north on West Road, had slowed or stopped to make a left turn into the driveway. When his truck was at an angle and partly in the southbound lane and ⁷⁰⁵ partly in the northbound lane, it was struck by a southbound automobile owned by the defendant Nelson Lewis Major and operated on an errand for Major by Randolph Orlando Trader. West Road at that point was a two lane highway, approximately 18 feet wide, and was straight for about 500 feet to the north and about one mile to the south.

The speed limit was 50 miles per hour. There was no illumination. Mrs. White sued Trader, Major and Jones in the Circuit Court for Wicomico County to recover damages for her injuries. Trader was also hurt, and filed a crossclaim against Jones for his injury.

The case was tried before Judge Travers and a jury on January 13 and 14, 1970. The jury found in favor of Mrs. White against all defendants and in favor of Jones on Trader’s crossclaim. After the disposition of motions, judgments were entered on the verdicts on February 2nd and Trader and Major thereafter filed this timely appeal. Jones did not appeal.

It is not questioned that Trader was driving on Major’s business and the two were in effect treated as one defendant. Major was not in his automobile and did not testify at the trial. At the close of all the evidence motions were made on behalf of Trader and Major for a directed verdict and the motions were denied. In this court appellants make five contentions.

They are: 1. That the evidence was not legally sufficient to support a jury verdict against them. 2. That after the investigating officer had testified that he noted “excessive speed” by Trader on his report, they should have been permitted to ask the officer whether he made a speeding charge against Trader (there had been a pretrial instruction that no reference should be made as to whether traffic charges were or were not brought against either driver). 3. That the trial judge erred in refusing to in ⁷⁰⁶ struct the jury that there was no legally sufficient evidence of unlawful speed by Trader. 4.

That the trial judge erred in refusing to instruct the jury that there was no legally sufficient evidence that Trader’s headlights were not on. 5. That the trial judge erred in refusing to instruct the jury that if Jones did not have his headlights on then there was no legally sufficient evidence of any negligence by Trader. Mrs. White here contends that there was legally sufficient evidence to submit to the jury the questions of whether Trader was travelling at a reasonable rate of speed, or keeping a proper lookout, or had his vehicle adequately lighted, and also contends that testimony as to whether criminal charges were placed or not was properly excluded. What the case really boils down to is whether there was evidence of sufficient probative force from which the jury could properly find that Trader was driving too fast, or without headlights, or both, and that his fault in either or both respeets was a concurring proximate cause of the accident.

Other than physicians, witnesses who testified were the plaintiff, the two drivers, the trooper, Roxie Waters and Fabian White, grandchildren of the plaintiff who lived with her, and Daisey Mae Stiles, a friend who lived’ there at the time. Trader’s Speed The speed limit was 50 miles an hour. Trader testified, on direct, examination, that his speed was “about 45, 50”. There was no cross-examination on this point.

Jones, Mrs. White, Roxie Waters, Fabian White and Daisey Mae Stiles all testified that they did not see the Trader vehicle before the. collision. None of these witnesses gave any evidence at all on the question of Trader’s speed. Trooper Haddaway testified that he investigated the ac ⁷⁰⁷ cident, arriving some time after it happened. During cross-examination by counsel for Jones, the record shows: “Q. I believe when you filed your report in this matter you noted excessive speed on the part of Trader?

A. Yes, sir, that is correct. Q. What facts did you find that caused you to draw this conclusion? A. Mainly the excessive damage to the vehicle.” In recross-examination of the trooper by counsel for Trader, the record shows: “Q. You based your conclusion of excessive speed strictly from the damage to the two vehicles, is that correct? A. Yes, sir.

Q. Two vehicles running together can cause considerable damage, can they not? A. Yes, sir, they can.” This is the sum of all the evidence relating to speed by Trader. The trooper’s statement of what he put on his report, and his reason, was not factual evidence, but a conclusion by him, shown to have been based solely upon the damage to the vehicles. It was not sufficient to raise the issue of speed for consideration by the jury.

Whatever Trader’s speed, there is no evidence nor rational inference, which could connect it as a proximate cause of the collision. Appellee refers us to Tates v. Toney, 231 Md. 9 , 188 A. 2d 283 (1963) and Baker v. Baker, 239 Md. 351 , 211 A. 2d 320 (1965). In Tates the evidence was that the driver admitted 35, in a 30 mile zone, a disinterested bystander estimated his speed at 50 miles per hour, and his passenger had several times requested him to slow down. In Baker , the court recited a number of material facts upon which the evidence was conflicting and contradictory.

In Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , 49 A. 2d 537 (1946), the Court of Appeals reviewed the authorities, and stated, at page 182, that “even if we should assume unreasonable or excessive speed on the part of the ⁷⁰⁸ taxi driver under the circumstances, we are unable to find that such speed contributed to, or was the proximate cause of the accident.” That Court went on to say, at page 183: “These cases illustrate the principle that while questions of proximate cause, like questions of negligence or contributory negligence, are ordinarily decided as questions of fact, they may be so clear as to be determinable as questions of law.” See also Koester Bakery Co. v. Poller, 187 Md. 324 , 50 A. 2d 234 (1946), in which the Court of Appeals disposed of an argument of excessive speed by saying, at page 332: “But even if . we assume, in this case, that top speed was unreasonable, and afforded some evidence of negligence, we think there is no showing that the speed contributed to the happening of the accident. The cause of the accident was clearly the unexpected, and unforeseeable, entry of the truck upon’the tracks at a point where the collision could not have been avoided even if the street car had been travelling at a speed of 25 miles per hour. Under such circumstances it cannot be inferred that the higher speed assumed was a contributing, cause. We had occasion to examine the authorities on this point in the recent case of Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , 49 A. 2d 537 .

In that case, and in the cases there cited, it was held that excessive speed is not a concurrent cause, where the primary cause is the unforeseeable, negligent act of a third party, and it appears that the accident would have happened . regardless of the excessive speed. We think these cases are controlling here.” At the risk of too much repetition we call attention to Jones v. Baltimore Transit Co., 211 Md. 423 , 127 A. 2d ⁷⁰⁹ 649