Witriol v. Pfueller & Cassell

Marbury, J., delivered the majority opinion of the Court. McWilliams, J., dissents. Henry Witriol, plaintiff-appellant, brought a motor tort action against Max Pfueller and Aaron C. Cassell for damages received as the result of an automobile accident. The case was tried before a jury, the late Judge Harlan presiding, in the Baltimore City Court.

From the judgment on the jury’s verdict against appellant, he has appealed. ¹⁷⁹ Witriol sustained personal injuries caused by the accident which occurred at approximately 7:15 a.m. on November 7, 1962, a clear and bright day. The accident occurred on the Jones Falls Expressway, a multi-lane highway running into the center of Baltimore City. Traffic was heavy that morning. The southbound portion of this north-south expressway was divided into three lanes — the easternmost lane, next to a center railing, was fourteen feet wide; the center lane was twelve feet wide; and the westernmost lane was fourteen feet wide.

On the western portion of the southbound expressway, in the area of the accident, there was a six and one-half foot shoulder; however, access to this area was hindered by a concrete curbing approximately six inches in height. The accident occurred some 6,000 feet south of the Cold Spring Lane interchange. The appellant was driving southbound in the middle lane, after entering at the Cold Spring Lane interchange. Because the sun was so bright, Witriol had his sunvisor down.

Cassell, who also had entered the expressway at Cold Spring Lane, was proceeding south in the westernmost lane. In order to avoid striking an abandoned automobile parked in the western lane, he veered into the middle lane and struck Witriol’s vehicle. Cassell testified that the sun momentarily interfered with his vision prior to observing the abandoned automobile in his lane of traffic. The Cassell and Witriol automobiles apparently hooked together until they stopped.

Both Cassell and Witriol got out of their cars, inspected the damage, and exchanged information. Witriol testified that Cassell told him that, “I am sorry, the sun blinded me.” Witriol re-entered his car and moved it forward directly in front of Cassell’s disabled automobile, which was in the western lane. It was agreed that after Witriol had moved his automobile forward, the distance between the rear of it and the front of Cassell’s automobile was a car’s length. The testimony was conflicting as to whether the Cassell automobile was partially in the middle lane or wholly within the western lane.

Following the collision with Cassell and the parking of his automobile, Witriol stood on the shoulder about five feet from his automobile. He noticed something was leaking from the .under portion of his automobile and went about five feet in ¹⁸⁰ front of it and stooped down to see what was leaking. When he straightened up and, with his back toward the oncoming traffic, started to return to the shoulder, he was struck by his own automobile which had been propelled forward by the Cassell automobile which in turn had been struck in the rear by Pfueller’s car which was being driven south. Witriol’s injuries were sustained approximately five minutes after the collision between Cassell’s automobile and that of Witriol.

Pfueller was in the western lane and noticed the abandoned automobile approximately sixty-eight feet away. As he approached he was blinded by the sun and turned into the middle lane, but not in time to avoid running into the rear of the Cassell automobile. At the conclusion of the testimony, the trial judge directed a verdict in favor of Cassell on the basis that he had not caused the bodily injuries suffered by Witriol. No appeal was taken by Witriol from the judgment on the directed verdict.

The jury was instructed that, as a matter of law, Pfueller was guilty of negligence. Pfueller has not cross-appealed. Over the objection of Witriol, the trial court