Victor Lynn Lines, Inc. v. State

Collins, J., delivered the opinion of the Court. Here are appeals from judgments rendered the appellees as the result of a collision between the automobile owned and driven by John J. Pursel, Sr., who was killed thereby, and a tractor-trailer owned by the appellant and operated by David B. Brown. The tractor-trailer was passing the automobile at the time of the collision. As appellant claims that John J. Pursel, Sr., was guilty of contributory negligence as a matter of law, we will recite the evidence in a light most favorable to the appellees.

Late on Easter Eve afternoon, April 8, 1950, John J. Pursel, Sr., aged 37, the operator of a trackless trolley bus, left Baltimore in his light green, 1941, Ford two-door sedan, accompanied by his wife, Gertrude M. Pursel, aged 40, and the following children: Margaret (Peggy) Ann, aged 13; James, aged 11; Eileen, aged 6; and Charles, aged 4 years, to visit relatives of Mrs. Pursel in Philadelphia. For the return trip to Baltimore, they left Philadelphia about 10:15 P.M. Easter Sunday night, Pursel operating the automobile with his wife sitting next to him holding the baby, Charles, on her lap and the others on the back seat. While proceeding south on Route 40, toward Baltimore, and about a mile north of Edgewood, a noise was heard which Mrs. Pursel thought was made by running over of an object in the road. The car slowed down and the husband drove on the shoulder of the road where the car stopped.

There ⁴⁷¹ was gasoline in the tank and Pursel was unable to locate the mechanical trouble. At that point in the road and at the point of collision there were two lanes for southbound traffic, each of concrete twelve feet wide, making a twenty-four foot concrete strip for southbound traffic. The shoulder to the right of the concrete was from seven to eight feet in width and sloped down to a gutter and apparently was macadam covered with loose gravel. A twenty-six foot grass plot separated the southbound concrete strip from the northbound lane.

The Pursels remained parked on the shoulder for about fifteen minutes. Mrs. Pursel then told her husband that they could not stay there all night because the children would catch cold. Traffic was heavy and as a number of vehicles passed, Mrs. Pursel saw from their lights a Sunoco filling station down the road. She told her husband that there was a garage down the road and possibly there would be someone there.

Pursel got out and started pushing the car in the right or “slow” lane a short distance. When there was a grade he got back in the car and drifted. Then he started pushing again with his lights on. As he continued pushing the car down the road in the slow lane with the lights on, the right wheels were on the gravel as much as possible and the left wheels were on the concrete.

He continued to push the car for about ten minutes, with the left door open and with one hand on the steering wheel and the other pushing. Traffic was heavy. The car stopped, the door of the car was slammed by Pursel and his body pressed against the window of the car. Mrs. Pursel looked back through the rear window and “saw lights coming through.

I thought he was passing us.” She then heard the crash. The skid marks of the left side of the tractor-trailer started in the right or slow lane and extended 123 feet to a culvert and stream where it pushed the Pursel automobile down in the culvert with its left or driver’s side against the culvert facing in a southwesterly direction. The tractor-trailer was on its left side with the trailer against the automobile. No skid marks were ⁴⁷² made by the Ford.

Mr. Pursel was killed, and others in the automobile and the driver of the tractor-trailer injured. State Trooper Hershberger, who said he arrived at the scene about three minutes after the accident, testified that the right front bumper of the tractor-trailer struck the left rear of the Ford. David Brown, the operator of the tractor-trailer, testified he had been operating tractor-trailers for about thirteen years and drove usually at night. He left Milford, Delaware, about 10:45 P.M. on Easter Sunday night, the. weather being fair, with a load of cotton bales bound for Pier 4, Baltimore.

His tractor-trailer, about 49 feet in length and 8 feet wide, was in perfect condition with regard to lights and brakes and had a governor on it which held the speed to from fifty to fifty-two miles an hour. About two or three-tenths of a mile before he reached the scene of the accident, traveling south, there was a slight down-grade, the road being straight. There were no cars ahead of him. The.traffic was heavy.

At that time there were cars following him which never got near enough to him to pass. As he started on this slight grade his lights were on “low beam”, which would pick up traffic 200 to 225 feet ahead of him. He did not have his lights on “high beam”, so as not to interfere with approaching traffic, although he admitted there was no approaching traffic. He was traveling south in the right lane, called the “slow lane”.

As he started down the slight grade there were cars some distance back of him, the lights from which he could see in his rear view mirrow. Traveling approximately forty-two miles an hour, he did not see the lights of any automobile ahead of him. There were no lights of an automobile on that road ahead of him before the accident. He said he saw some cars following.

He came upon this object and “it seems like it loomed out of nowhere”. He switched his “left arrow lights on”. He then realized the object was stopped and he started to move over in the left hand fast lane. He realized then that it. was too late to prevent hitting a car that wa,s ⁴⁷³ trying to pass him at a high rate of speed on the left.

He then straightened the tractor out and at that time he was too close to the car to prevent a crash, and that was when he “hit the brakes”. He said he would have passed the Pursel car except that he saw in his left mirror an automobile trying to pass him on the left side. He said he changed the course of his tractor-trailer in order to avoid a collision with the machine trying to pass on his left and went directly on, “side-swiped” the man who was pushing the automobile. There was ample evidence in the case from which the jury could have found that all the lights were lighted on the Ford car.

There is ample evidence also from which the jury could have found that the Ford automobile was not parked at the time of the collision but was being pushed along the highway in the right or slow lane. The appellant in its brief admits: “It is obvious that Pursel was not ‘stopped’ or ‘parked’ within the meaning of [Article 66V2], Sec. 189 (a) but rather was ‘disabled’ as in Sec. 189 (b). The evidence is clear that he could not start his car, and was pushing it along the highway looking for help.” ' Appellant contends that Pursel’s action in pushing his automobile on the traveled portion of a boulevard after removing it from a position of absolute safety on the shoulder was contributory negligence as a matter of law. With this contention we do not agree.

Appellant relies on cases in which there were no lights on the automobile parked on the highway. Miles v. Webb, 162 Md. 269, 271 , 159 A. 782 ; Marshall v. Sellers, 188 Md. 508 , 53 A. 2d 5 ; and other cases. The answer to this argument is that the jury could clearly have found from the testimony that all the lights on the Pursel car were lighted and that it was not parked at the time of the collision, but was being pushed along in the right or slow lane of the dual highway. The appellant correctly cites the rule with respect to contributory negligence as a matter of law which follows and which is quoted from the case of Beck v. Baltimore Transit Company, 190 ⁴⁷⁴ Md. 506, at page 511, 58 A. 2d 909 , at page 911: “The rule with respect to contributory negligence is that the act relied on to establish, as a matter of law, the existence of contributory negligence must be distinct, prominent and decisive, and one about which ordinary minds would not differ in declaring it to be negligent.

Where the nature and attributes of an act relied on to show negligence contributing to an injury sustained can only be determined correctly by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as a matter of law. State v. Carroll-Howard Supply Co., 183 Md. 293 37 A. 2d 330; Holler v. Lowery, 175 Md. 149 , 200 A. 353 ; Merrifield v. C. Hoffberger Co., 147 Md. 134 , 127 A. 500 ; Taxicab Co. v. Emanuel, 125 Md. 246 , 93 A. 807 .” In this case, Pursel was where he had a legal right to be, in the right or