Victor A. Pyles Co. v. Rehmann

Lowe, J., delivered the opinion of the Court. Dorothy M. Rehmann and her husband (hereafter collectively referred to as “Rehmann”) sued Victor A. Pyles Company, Inc. and Terry A. Strother (hereafter collectively referred to as “Pyles”) who in turn brought a third party action against Richard L. Given and Chemical Leamon Tank Lines, Inc. (hereafter collectively referred to as “Given”). Rehmann did not choose to amend so as to proceed against Given. Md. Rule 315 d 1.

The case was tried before a jury of the Circuit Court for Baltimore County. At the conclusion of the trial, the trial judge directed a verdict in favor of Rehmann against Pyles and also directed a verdict in favor of Pyles against Given. The case went to the jury solely on the issue of damages. A verdict totalling $12,500 was returned.

Motions for Judgment N.O.V. were filed by Rehmann and Pyles. Rehmann’s motion which applied only to the third party claim was granted, * 1 and a judgment was entered in favor of Given. Pyles’ motion was denied. Pyles appealed from all judgments. ⁶⁸⁸ The facts are disarmingly simple and the solutions would be little more difficult but for the ominous presence of the “pariah” * 2 who enters a favored highway at his peril and is negligent as a matter of law in so doing, i.e., a driver who violates the “Boulevard Rule.” Mrs. Rehmann was driving a 1959 Dodge west on U. S. Route #40 in the right hand lane.

She was approaching an intersection where she anticipated turning right off the boulevard into the Pike Plaza Shopping Center where she worked. The total absence of negligence on her part throughout is uncpntested and the judge below so instructed. Following her was Richard L. Given operating a tank type tractor trailer truck (owned by Chemical Leamon Tank Lines, Inc.) in which a relief driver was sleeping on a bunk in the cab behind Given. Westbound traffic at this point on Route #40 proceeded upon a downgrade approaching the Shopping Center intersection which was controlled by a traffic signal.

Parked on the right hand shoulder of Route #40, immediately to the east of the entrance to the Shopping ⁶⁸⁹ Center, was Appellant Pyles’ “low boy” trailer truck used to transport construction equipment. Pyles’ employees were attempting to mount a front-end loader 3 on the low boy. The loader was to be driven up a ramp on the right side of the low boy onto the bed of that truck perpendicularly. Upon arrival it would have been turned parallel with and secured for hauling upon the low boy truck’s body.

The front-end loader crawled up the ramp to the bed of the low boy as Mrs. Rehmann’s car was opposite the loading operation. Given was some twenty feet behind. As the front-end loader “dropped” or settled in place on the truck bed, its blade or bucket projected “ . . . two or three feet. . . .” into the traveled portion of the highway. The evidence indicates that Mrs. Rehmann veered slightly to the left, apparently taking evasive action upon seeing the dozer’s approach but before it protruded over the highway.

She immediately turned back to the right to enter the Shopping Center entrance located just feet beyond the low boy. More significantly the protrusion of the loader blade into the roadway coincided with the arrival of the cab of Given’s tractor trailer. Given “caught a glimpse of” the blade from the “right-hand corner of [his] windshield.” He too then veered as far to the left as he could considering heavy traffic in the next lane, all the while peripherally watching through his right hand mirror, anticipating contact between the blade and the trailer of his truck. No contact was made, however, and “ . . . just a few feet later [Given] caught the left-hand taillight of the car in front. . . .” It was the Rehmann vehicle with which he collided.

Mrs. Rehmann had nearly completed her turn into the Shopping Center but her fin-like fender projecting a taillight was struck by the right headlight of the truck. Given admitted anticipating Mrs. Rehmann’s “turn off to the right” 4 at the intersection and ⁶⁹⁰ acknowledged that he had not applied his brakes before impact for fear of “jackknifing” the tractor trailer or for fear that someone would “hit me in the rear” on the heavily traveled road. He had seen Mrs. Rehmann’s right turn signal for “fifty yards back from the point that she would actually physically make the turn.” Given was decelerating as he followed 15 to 20 feet behind her at a speed of 15 to 20 miles per hour. Given’s negligence appeared so “glaring” in the first instance as to compel the trial judge to find him negligent as a matter of law, as he had done with Pyles as well.

However, after reading the recently reported Tippett v. Quade, 19 Md. App. 49 , the judge reversed his decision saying “I am persuaded I was in error when I directed a verdict in favor of Pyles and Strother against Given and Chemical, and as to that the Plaintiffs’ motion [for judgment n.o.v. on behalf of Given] will be granted.” 5 — The Entrance — The first issue we must determine is whether or not the ⁶⁹¹ appellant, Pyles, did indeed violate the Boulevard Rule. In opposing such a finding, appellant argues that two physical factors are necessary for the application of the rule. He contends first that the intrusion upon the favored highway must be at “ . . . an intersection of a favored highway and an unfavored street. . . .” (Emphasis added.) Appellant cites Oddis v. Green, 11 Md. App. 153 and “Bothersome Boulevards,” by John W. T. Webb, 26 Md. L. Rev. 111 , 112. We do not read either in the perspective cited by appellant.

The existence of an intersecting street is not a condition to recovery but rather an indicium of whether the road in question is a “boulevard.” Appellant had not questioned the trial court’s finding that Route #40, the scene of this accident, is a “boulevard,” and once we have made that determination, the Court of Appeals has emphatically removed “ . .. all doubts about the rule’s application and discourage[d] the belief that there are other exceptions not already recognized by our case law.” Creaser v. Owens, 267 Md. 238, 240-241 . We find no exception indicating impunity for those who enter or cross a boulevard from fields or other curbs where no roadway intersects. It is inconceivable that a rule which has as its primary purpose to expedite the movement of traffic on designated highways, and its concomitant purpose to assure the safety of drivers of motor vehicles, could be interpreted to expedite traffic only at intersections and to protect motorists only at cross roads, but not between them. See Cooper v. Allen, 243 Md. 9, 12 .

The statutory authority for the rule does not refer to intersections when it admonishes motorists to stop and yield, but rather uses the more generic term “entrance.” 6 It reads: “The driver of a vehicle shall come to a full stop as required by this subtitle at the entrance to a ⁶⁹² through highway and shall yield the right-of-way to other vehicles approaching on the through highway.” Md. Code, Art. 66V2, § 11-403 (b). 7 It is incomprehensible that the Court of Appeals would apply this rigid doctrine to the driver of a farm rig from a farm lane, see Shriner v. Mullhausen, 210 Md. 104 , and not intend it to apply to the driver of a front-end loader entering perpendicularly from the side of a highway. — The Collision — The second prong of appellant’s argument posits as one of the two conditions precedent to the applicability of the boulevard rule that, “ . .. there must be a collision occurring as a direct consequence of the entrance of the unfavored vehicle onto the favored highway in disregard of its obligation to yield.” Again we find appellant’s authority of Oddis v. Green, supra, inapposite and “Bothersome Boulevards,” supra, to the contrary. Mr. Webb states at page 120 of his article, “It is not necessary for there to be impact between the favored and unfavored vehicles.” More compelling to us, however, is the case of Dunnill v. Bloomberg, 228 Md. 230 , in which the Court of Appeals stated: “Nor does the fact that the two vehicles did not collide seem of any moment. The defendant’s encroachment on the favored highway (even if it was more or less creeping) confronted the plaintiff with an emergency. He could not be sure that the plaintiff would stop; it seemed highly probable, to say the least, that a collision would occur if he failed to and if the plaintiff held his course.

His swerve to the right when faced with the emergency situation was a perfectly natural, reflex movement caused by the defendant’s negligence, and it ⁶⁹³ involved no contributory negligence attributable to him. Burhans v. Burhans, 159 Md. 370 , 150 A. 795 ; Coastal Tank Lines v. Carroll, 205 Md. 137 , 106 A. 2d 98 . The swerve so caused was unquestionably the cause of the plaintiffs striking the curb. Here again we assume that the defendant stopped, as he said, a foot short of the center of the street, dividing the north and southbound lanes and that he did not actually enter a southbound lane.

An exceedingly nice calculation of speed, time and distance would have been required of the plaintiff to determine that the defendant would stop and that he, the plaintiff, could safely continue without swerving. To require such calculations would be directly contra to the often repeated policy of the boulevard rule to avoid them and would inevitably conflict with its other frequently declared purpose to expedite traffic on through highways. “On the uncontroverted evidence (cf. Smith v. Bernfeld, 226 Md. 400, 405 , 174 A. 2d 53 ), we conclude that the plaintiff was entitled to a directed verdict in his favor on the issues of the defendant’s negligence and of his own freedom from contributory negligence. That would have settled the issue of liability leaving open only the question of damages.” Dunnill v. Bloomberg, supra, 235-236. The evidence was uncontradicted that the bucket of the front-end loader encroached upon the travelled portion of the highway. 8 The trial judge was correct in finding that the boulevard rule was applicable and having so found was equally correct in holding the “unfavored driver . .. negligent as a matter of law.. ..” Creaser v. Owens, supra, 244. ⁶⁹⁴ — The Proximate Cause — We see a significant analogy between Dunnill and the case at bar, and this brings us to the next question to be answered, i.e., Given’s negligence.

Before the question of whether there was negligence on the part of a favored driver contributing to an accident can be submitted to a jury (let alone be directed), such negligence must have been the proximate cause of the accident. Harper v. Higgs and Shedlock v. Marshall, both supra. The limited cases in which the Court of Appeals has found the favored driver’s negligence to amount to the “proximate cause” sufficient to provide a jury question, have been those in which the favored driver “ .. . was completely inattentive to what was ahead in the road . . .,” see Harper v. Higgs, supra, and, but for such heedlessness, the accident might have been averted. To support a contention that the insouciance of the favored driver was so extreme as to avoid the rigidity of the Boulevard Rule, there must be “positive evidence of such inattention or lack of due care . . .,” Tippett v. Quade, supra, 61, or a showing that the favored driver