United States Fidelity & Guaranty Co. v. Royer

Hornby, J., delivered the opinion of the Court. In this action for personal injuries sustained by a pedestrian as the result of being struck by a motor vehicle as he was crossing a street between crossings, the trial court granted a directed verdict in favor of the defendants against the actual and equitable plaintiffs primarily on the ground that the pedestrian was contributorily negligent as a matter of law, and the plaintiffs appealed. The action was brought by the United States Fidelity and Guaranty Company (compensation insurance carrier) on behalf of itself and Wallace E. Clark (equitable plaintiff), pursuant to the provisions of Code (1957), Art. 101, § 58, against LeRoy M. Royer and John C. Barto, individually and t/a Royer and Barto (employers of operator) and Charles H. Sprinkle (operator of the motor vehicle). The elderly pedestrian, who was employed as a gardener at the Talbottown Shopping Center, had gone on an errand for his employer, and was returning from a filling station at the southeast corner of the intersection of Harrison and Washington Streets, to the shopping center on the easterly side of Washington Street and the northerly and easterly sides of Harrison Street.

In this area of the town of Easton, Harrison Street, which in the main is a north-south street, curves westerly in a quarter-circle to intersect Washington Street, another north-south street. Both are major streets; both are forty-four feet wide; both are in a 25-mile speed zone; and both are normally heavily traveled in the daytime. There was no traffic light or marked crosswalk at the intersection of Harrison and Washington Streets. A ramp (or sloping sidewalk) extended from the filling station to the east side of Washington, but at the time of the accident there was no pavement on the south side of Harrison : instead an earthen embankment sloped down to the curb on that side.

The area immediately to the north and east of the north side of Harrison was paved as a parking lot for the shopping center. On leaving the filling station, the pedestrian walked along ⁵³ the top of the embankment for a distance of about fifty feet, and then, after looking in all directions (north on Washington, to his left or west, and to his right or east on Harrison) and seeing no vehicular traffic, he proceeded catercornered down the embankment in a northeasterly direction toward the shopping center. At the curb, he looked a second time in all directions and, although there was nothing to prevent his seeing vehicular traffic to the north on Washington (as well as to the west and east on Harrison), he saw nothing. He then entered Harrison, still going in a diagonal direction, and had taken only four to six steps when he was struck and seriously injured.

For the third time, as he was crossing the street, he had glanced backward—a fact that was corroborated by an onlooker—but even then he neither saw nor heard the vehicle prior to the impact. The operator of the motor vehicle (a light-colored panel delivery vehicle) approached the intersection on Washington from the north and made a left turn to the east on to Harrison, where he was blinded by the morning sun. He never saw the pedestrian before striking him. The impact knocked the pedestrian down, but he was not dragged or run over.

After the collision, which took place in the eastbound lane, the pedestrian was about twelve feet north of the southerly curb on Harrison. There was no evidence as to the rate of speed the vehicle was traveling before the accident happened, as to skid marks or how far the vehicle moved after the impact, as to whether the operator was keeping a proper lookout for vehicular and pedestrian traffic, or as to what efforts the operator made to slow down or stop the vehicle after he had been blinded by the sun. On the evidence produced by the plaintiffs, the lower court granted the motion of the defendants for a directed verdict on the theory that the plaintiff was guilty of negligence as a matter of law in failing to yield the right of way between street crossings to vehicular traffic, and further ruled that the evidence was insufficient to show primary negligence on the part of the operator of the motor vehicle. Three questions are presented by the appeal: (i) whether there was sufficient evidence to submit the issue of primary ⁵⁴ negligence to the jury; (ii) whether the pedestrian was contributorily negligent as a matter of law; and (iii) whether there was any evidence to warrant an application of the doctrine of last clear chance.

(i) and (ii) It is not necessary to consider the first question presented, for even if it is assumed, without deciding, that there was sufficient evidence of primary negligence to warrant submission of that issue to the jury, it appears that the