Walker v. Hall

Moore, J., delivered the opinion of the Court. The collision of two automobiles on a clear Saturday afternoon in November, 1969, spawned three separate tort actions involving multiple parties and claims. These suits were ultimately consolidated for a trial which commenced before a jury some six years later in the Circuit Court for Baltimore County (Brannan, J.), and consumed nine days. 1 ⁵⁷⁴ The first party to file was Eleanore Ruth Walker, sole appellant here, then 58 years of age and the driver of a 1963 white Mercury Marauder. Her original declaration named as defendants the driver of a 1968 red Mustang, Dennis George Hall, then 18, and his father. 2 It was these two vehicles which collided at the intersection of Old Philadelphia Road (Route 7) and Pfeffers Road in Baltimore County.

The accident occurred as Hall was proceeding southbound, with two passengers, and Mrs. Walker, coming from the opposite direction, driving alone, was attempting to negotiate a left-hand (west) turn into Pfeffers Road. Young Hall and his father entered general issue pleas and filed a counterclaim in February, 1970. More than two and a half years later, Mrs. Walker obtained leave of court to file an amended declaration on the ground that Hall had been engaged in a motor vehicle race with a third car, a 1969 Dodge Challenger, operated by his friend, William Charles Martin, then 18, carrying three teenage male passengers. The new Dodge was owned by George Henry Becker, then 21.

He was, however, riding with his girlfriend, Sharon Walczak, then 16, in Hall’s Mustang. 3 Appellant’s amended declaration, filed on November 27, 1972, named fifteen parties defendant, including Hall, Becker, Martin and the three passengers. 4 Previously, in March 1970, Becker had brought a negligence action against Mrs. Walker only, for personal injuries sustained in the accident. (Appellant thereupon filed a third party claim against Dennis Hall and his father.) In June, 1970, Sharon Walczak had filed a similar action against the Halls and Mrs. Walker. ⁵⁷⁵ When the three consolidated actions 5 finally came on for trial, Mrs. Walker’s proof consisted of over sixty exhibits, her own testimony and that of her daughter, who resided two and a half miles from the place of the collision. In addition, appellant’s counsel read into evidence major portions of depositions taken in 1972 and 1973 of four of the appellees and of a witness, Claude F. Kilgore, a resident of Virginia, who previously resided on Old Philadelphia Road near Pfeffers Road at the time of the accident, as well as answers by Martin’s passengers to interrogatories propounded by appellant. The trial court, at the close of plaintiffs case, granted directed verdicts in favor of Martin and his passengers.

A verdict was also directed in favor of Becker at the close of all the evidence. There remained for determination by the jury Mrs. Walker’s suit against Hall and the latter’s counterclaim, Becker’s suit against appellant, in which Hall had been impleaded, and Miss Walczak’s action against appellant and Hall. The appellees presented the live testimony of Dennis Hall, George Becker and Sharon Walczak. In addition, the investigating officer, Trooper Thomas Myrick, and one Calvin Leary were called.

(The latter, a member of the Baltimore County Fire Department, gave testimony contradictory of critical aspects of the deposition of appellant’s witness, Kilgore.) With the concurrence of counsel for all parties, the respective cases were submitted to the jury by the trial court upon specific issues, the form of the verdict being in part as follows: “1. Was Eleanore Walker negligent and, if so, was that negligence a proximate cause of the accident? Yes_ No_ ⁵⁷⁶ 2. Was Dennis Hall negligent and, if so, was that negligence a proximate cause of the accident?

Yes_ No_ 3. Was George Becker guilty of any negligence which was the proximate cause of his injuries? Yes_ No_ 4. Was Sharon Walczak guilty of any negligence which was the proximate cause of her injuries?

Yes_ No__” (Three additional questions were also submitted to the jury relating to money damages.) The jury found negligence on the part of the appellant and no negligence on the part of Dennis Hall, George Becker or Sharon Walczak. Damages against appellant were awarded in favor of the appellees as follows: Becker $100, Walczak $2,500, 6 Hall $2080. In support of her appeal, appellant has put forth some fourteen assignments of error with respect to the trial court’s rulings and instructions and the denial of her motion for a new trial. Particular emphasis is placed upon alleged error in the ruling by the trial court that the evidence on the issue of the existence or not of a motor vehicle race was insufficient.

On this central question, as well as on subsidiary issues properly before us, we find no error. Relevant facts are stated below in our consideration of appellant’s contentions. I The Alleged Motor Vehicle Race The six youths and the 16 year old young lady involved in this case were all residents of Rosedale in Baltimore County. They were schoolmates, social friends and one or two were related.

Some time around noon on the date of the accident, November 29, 1969, they met at the Village Sub Shop in Rosedale. There they decided to drive to Singer Run Park in ⁵⁷⁷ Harford County, where appellee, William Charles Martin, intended to conduct a search for his wallet which had been lost or stolen in the Park the day before. As previously stated, Becker and his girlfriend, Sharon Walczak, rode with Dennis Hall in the latter’s Mustang, while Becker gave his keys to Martin to drive his new Dodge to the Park with the three other boys. Prior to leaving, Becker placed a six-pack of beer in Hall’s car.

The group remained at Singer Run Park for one or two hours. Hall, according to his deposition, consumed two beers during that time. (Becker stated in his deposition that he had had two beers in Rosedale before they left.) Becker’s rust-orange Dodge Challenger, with Martin at the wheel, accompanied by the three passengers, departed from Singer Run Park ahead of the Hall vehicle. The two groups were returning to Rosedale with no special plans for the balance of the afternoon and evening except that they did intend to get together again.

A two or three mile unpaved road called Winter Run Road led from the Park area to Route 7. Hall and Martin agreed in their testimony that each was able to see the other while they were traversing this road and, for a time, after the cars turned right onto Route 7, heading south to Rosedale. Route 7, also known as Old Philadelphia Road, is a two-lane, undulating highway. Martin testified in his deposition, read at trial, that after he and his companions passed the intersection with Pfeffers Road, someone noticed that Hall’s Mustang was no longer in back of them.

Martin pulled off the road for a few minutes but then proceeded back to Rosedale on Route 7, surmising that Hall was returning by another route. Becker and his date, Sharon, testified at the trial that they were reading magazines during the trip back with Hall and were not attentive to the car ahead. Appellant’s witness, Claude Kilgore, stated in his deposition that at approximately 3:00 p.m. on the day in question, he was at his mailbox near the shoulder of Route 7, having walked there from his residence located approximately 100 feet from Route 7, just north of its intersection with Pfeffers Road. He stated that while there ⁵⁷⁸ he observed, in a period of about 20 seconds, three cars proceeding southbound.

He said that the first car was going about 70 m.p.h. This was followed by a slow-moving, light colored vehicle which he thought was one of the smaller Fords. Immediately behind the second vehicle, according to Kilgore, there came a red Mustang “also going at such a high rate of speed that automatically I took it for granted that he was racing with car number one.” He estimated the Mustang’s speed as about the same as that of the first vehicle. He also stated that the red Mustang moved over the solid yellow line dividing the northbound and southbound lane, passing the slow-moving vehicle and then proceeded back into its own lane.

He observed the back of the Mustang until it left his sight at the crest of a hill just before the intersection of Pfeffers Road. After it disappeared over the crest, he heard the collision and observed smoke. The investigating police officer, Trooper Myrick, testified that the Mustang left 109 feet of skidmarks and its front hood left the vehicle upon impact, traveling a distance of 75 feet and striking a house on the west side of Route 7. The trooper testified that Dennis Hall “appeared to have an odor of an alcoholic beverage”, which he noted on his report, but it was not sufficient to sustain a charge of driving while impaired.

On the subject of speed, Hall and Martin maintained that they kept generally within the 40 mile limit posted for Route 7. Appellees also offered the testimony of Calvin Leary, the Baltimore County fireman who was going southbound on Route 7 after working a part-time job in Harford County. Leary came upon the accident scene within minutes after the occurrence. He was driving a 1965 white Ford Comet and testified that, while driving at approximately 40 m.p.h., he observed the red Mustang ahead of him prior to the collision.

He continued to observe the Mustang as it climbed the hill toward the intersection with Pfeffers Road until it dropped from view over the crest. At no time, according to Mr. Leary, did the Mustang cross over the line to pass another car. He also testified that the Mustang appeared to be proceeding at his own rate of speed, i.e., within the speed limit. ⁵⁷⁹ Appellant’s second amended declaration alleged that all the youthful defendants (except Sharon Walczak) were engaged in a race and that all were participants — Hall and Martin as racing drivers, the passengers by their presence and “by giving moral support, encouragement and incitement to the drivers of the respective vehicles in which they were racing.” At the time of the accident, the statutory prohibition against racing or speed contests was Maryland Code, Art. 66V2, § 210 (1957, 1967 Repl. Vol.) which provided, inter alia, as follows: “Racing or speed contest; wager; causing skidding, spinning or excessive noise. “(a) In general. — No person shall operate or drive any vehicle on the public highways of this State in a race or in a speed contest, or on a bet or wager, or in any intentional improper manner so as to cause skidding, spinning of wheels, or excessive noise upon said highway. . . . “(b) Timekeeper or flagman. — No person shall participate as a timekeeper or flagman in any unauthorized race or speed contest on the public streets, roads or highways in the State of Maryland.

The race or speed contest need not be for a prize, reward or wager to come within the meaning of this section.” 7 (Emphasis added.) The trial court, at the conclusion of the appellant’s case granted a motion for a directed verdict made on behalf of Martin and his three passengers. 7 8 The court stated in part: “I have no problem with Hall driving at a high rate of speed, but it seems to me that that is not enough. ⁵⁸⁰ It seems to me the mere fact that they are friends, it seems to me the mere fact that both were exceeding the speed limit, none of these even taken together in my judgment amounts to anything other than surmise and speculation as to the existence of a race.” Appellant vigorously contends that the court erred in granting the motion and also in later specifically instructing the jury that “there was no legally sufficient evidence in this case that there was a race.” It is a well-settled rule, applicable in Maryland, that the racing of motor vehicles on a public highway is negligence. All who engage in a race are liable for injury sustained by a third person as a consequence of the race, irrespective of which racing car actually inflicted the injury or of the fact that the injured person was a passenger in one of the cars. Haddock v. Stewart, 232 Md. 139, 142 , 192 A. 2d 105, 107 (1963). See United Railways & Electric Co. v. Perkins, 152 Md. 105 , 136 A. 50 (1927).

In Haddock , the court affirmed the granting of a directed verdict, on the issue of racing, in favor of the defendant at the close of the plaintiffs case. The plaintiff-appellant was proceeding north on State Route 5 toward Waldorf in Charles County, directly behind another vehicle driven by a Lieutenant Commander Baker; each car was running at about 45 m.p.h. As the two cars proceeded around a curve, a southbound vehicle, driven by Thomas Hill, traveling in excess of the 50 m.p.h. limit, swerved out of control and struck both the Baker and Haddock cars. As a result of the accident, Baker and Hill were killed.

Haddock contended that the defendant-appellee, Stewart, had engaged in a race with Hill. Stewart was behind the Hill car at the time of the accident. Stewart testified that Hill, at several points along the highway, had pulled alongside his vehicle, on the 2-lane road, and signaled him to race. Each time Hill would speed up in anticipation of Stewart’s response.

However, Stewart emphatically denied accepting the challenge and insisted that he kept within the 50 m.p.h. speed limit. In an attempt to impeach Stewart, appellant’s counsel ⁵⁸¹ introduced a statement allegedly signed by Stewart a week after the accident, in which he admitted to traveling between 60-70 m.p.h. Also, at trial, Stewart admitted passing several cars along the route traveled by both Hill and himself. As stated by Judge Sybert, the sole question raised by the appeal was “whether there was sufficient evidence, viewed in the light most favorable to the plaintiff, that the defendant Stewart gave assistance or encouragement to the tortious conduct of the deceased, Hill, so as to have warranted the submission of the issue to the jury.” 232 Md. at 142 , 192 A. 2d at 107 .

In affirming the trial court’s action, the court adopted in part the language of the trial judge, Macgill, J: “All you have really is some evidence of excessive speed or speed greater than the speed limit on the part of Mr. Stewart at certain points along the highway. I notice reference was constantly made to the fact that there was no occasion unless Mr. Stewart was engaged in racing for him to pass the other cars. ... Go out on the highway, any time you want, you see cars speeding up and going sixty to pass other cars; they’re not necessarily engaging in a race. . . . There isn’t any direct evidence that he [encouraged Hill to race].

It may be a suspicious matter. We can’t let this matter go to the Jury to speculate. . . .” 232 Md. at 143-44 , 192 A. 2d at 107-08 . In the instant case, appellant relied at trial upon an asserted tendency of teenagers to engage in racing and pointed to the presence in the Hall vehicle of a tachometer and that it was equipped with “lifters.” At trial appellant also emphasized the longstanding relationship between the seven youths and placed great weight, as she does on appeal, upon the deposition testimony of Mr. Kilgore. It is our conclusion, viewing the evidence as we must in the light most favorable to the appellant, that what was presented at trial constituted at most evidence of excessive speed and perhaps reckless driving on the part of appellee Hall, the ⁵⁸² operator of the red Mustang.

(We observe, however, that the jury found no negligence on his part and, indeed, awarded him compensation for personal injuries and property damages against the appellant.) Unlike the facts in Haddock, supra, we do not have a situation of conceded racing on the part of one vehicle. In this case, there. is no evidence of a speed contest other than Kilgore’s exclamation that “automatically I took it for granted that he was racing with car number one.” This statement with respect to racing was obviously a conclusory, “knee-jerk” type reaction and is not legally sufficient evidence of “challenge and response.” See Bierczynski v. Rogers, 239 A. 2d 218 (Del. 1968); Nelson v. Nason, 177 N.E.2d 887 (Mass. 1961). As stated by the New York Supreme Court, Appellate Division, in Finn v. Morgan, 362 N.Y.S.2d 292, 298 (1974), “Speeding and racing are not concomitant acts, and proof of speeding alone did not prove a race. The gist of racing is competition and the facts must support an inference of some agreement to race.” (Emphasis added.) In support of her argument, appellant relies on the cases of Kres v. Maryland Automobile Insurance Fund, 273 Md. 289 , 329 A. 2d 44 (1974); Nelson v. Nason, supra; Commonwealth v. Looser, 156 A. 2d 905 (Pa. 1959); Bybee v. Shanks, 253 S.W.2d 257 (Ky. 1952).

Kres , while it dealt with the racing question, was concerned with whether the plaintiff had presented sufficient evidence of a speed contest to state a “cause of action” to sue the Fund, within the meaning of Art. 48A, § 243 H., Md. Code (1957, 1972 Repl. Vol.), and is not apposite. In detailing the quantum of evidence needed to state a “cause of action,” Judge Digges wrote, it is “not the presentation of such evidence as would meet every probative test of a prima facie negligence cause.” 273 Md. at 292 , 329 A. 2d at 46 . In order to withstand a motion for directed verdict, the evidence must amount to more than a “mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture.” Brock v. ⁵⁸³ Sorrell, 15 Md. App. 1, 6 , 288 A. 2d 640, 643 (1972), quoting Fowler v. Smith, 240 Md. 240, 247 , 213 A. 2d 549, 554 (1965); Md. Rules of Procedure, Rule 552.

The out-of-state cases relied upon by appellant were dealt with in Haddock , and it is sufficient to note that in each case there was either direct evidence of participation or encouragement or an ample record to support a reasonable inference of such participation. We find no error in the trial court’s rulings. II Alleged Liability of Appellee Becker Our holding with respect to the racing issue disposes of appellant’s contention that appellee Becker was not entitled to a directed verdict since he was a participant in the alleged race. A second asserted ground of liability on the part of Becker, also lacking in substance, is that he “obtained” liquor for the minor, Dennis Hall, in violation of Maryland Code, Art. 27, § 401 (1957, 1967 Repl.

Vol.). 9 The evidence upon which appellant presumably relies is Becker’s own testimony that he obtained a 6-pack of beer from his mother’s refrigerator that morning and placed some of it in Hall’s Mustang. Appellant contends that it was “under the influence of this beer that Hall operated his car wildly and in violation of six separate motor vehicle statutes. . . .” The foregoing statutory provision then read in pertinent part: “Any person who obtains any spirituous or fermented liquors from any other person licensed to sell the same for any minor or person under twenty-one years of age, knowing him to be such, to be drunk by said minor or person under twenty-one years of age, shall be deemed guilty of a misdemeanor____” In our judgment the trial court correctly found the above ⁵⁸⁴ statute inapplicable. 10 There was no evidence that Becker obtained the beer from a licensee for a minor as the statute provides. Furthermore, Becker’s conduct in providing Hall with beer could not have been the proximate cause of the accident, even if the statute were applicable. 11 See States v. Hatfield, 197 Md. 249, 254-55 , 78 A. 2d 754, 756-57 (1951). Beyond this, the short answer to Mrs. Walker’s contention is that the jury found Hall, notwithstanding evidence of some drinking, to be without fault.

Ill Alleged Errors in the Trial Court’s Charge a) Contributory Negligence as a Defense to “Willful and Wanton Misconduct or Reckless Disregard” of Human Life. Appellant contends that the trial court erroneously