*1 BROOKS et al. v. CHILDRESS et al.
(Ten Appeals Record) in One Term, [No. October 1950.] *2 May 17, 1951. Decided argued J., and Marbury, before
The cause C. Delaplaine, Collins, Grason, Mar- Henderson KELL, JJ. Decker, Boyd, Jr., Henry Jr., with
J. M. Cookman Hughes whom were C. James W. Paul Wolman on brief, appellants. Rollins, Smith,
Clater with whom E. W. were D. E. *3 Clark, Evans, the William B. Thomsen & Smith on Wesley. appellee, for brief Arthur Sherbow, Lindsay,
Theodore whom with James J. were Jr., Crothers, Jr., brief, ap- and Omar D. on the pellee, Childress, G. N. etc. J., opinion
Collins, delivered the of the Court. appeals judgments These are from for costs in favor appellees, below, of the upon defendants verdicts directed by the court. 18, 1948,
On P.M., October about 3:45 the weather highways dry, clear and Stanley Wesley, the Arthur (Wesley), years age, erroneously seventeen named in the Stanley Wesley, amеnded declaration op- erating Sedan, by a father, 1949 Pontiac owned his Wesley, Arthur appellees, southerly one in a direc- on tion U. S. Route dual highway, a lane boulevard Elkton, Maryland. a short distance from Each lane highway twenty-two feet in separated width and grass forty plot feet wide. At the intersection of Nottingham Road and Route 40 there was a cross-over paved thirty lane traversing feet in width grass plot connecting north and south bound lanes. southerly lane in the traffic “cross-over” allows
The Route 40 plot grass north and the bound cross Wesley Nottingham approached Road. As lane and enter Nottingham passengers car Road, in the with seven leaving the him, cross-over he turned left into this with purpose of enter- 40 with the of Route south bound lane very Nottingham stopped ing in Road and the cross-over crossing the northbound to the north lane. In close bound tractor-trailer of Childress lane collided with a he (Childress), Company, appellees. one of Transfer eight occupants car, in- Three of the instantly cluding driver, killed and four others were only shortly a two- survivor was died afterwards. year boy, From rendered unconscious. old who was appellees, tort, a suit directed verdicts appeals. appellant course, therefore, we Of should ap- in favor of the the evidence resolve all conflicts pellant all truth of all evidence and and assume the naturally legitimately de- which inferences support appellants’ claim. which tend duced therefrom produced Lawrence, witness Walter Edward driving appellants, testified his truck north that he was up purpose picking chil- 40 for the two on Routh Nottingham Road. The children were in dren at the highway dual between the two lanes the middle turning grass plot. cross-over, left Before into on opened of his truck and looked on the door south he proved which to be and saw a vehicle the Child- Route 40 *4 back of him about four-tenths of ress tractor-trailer plenty that had of time mile. He determined he a highway. left He turned into the intersection cross the just clearing stopped end of truck with the back his and Wesley of 40. At lane Route north bound time directly opposite stopped of his car door the truck very near the north front wheels bound lane. with his Wesley stopped he turned head his and looked at Mr. As being high, Wesley’s truck, he The could see Lawrence. they were face because at a lower head and level. said at that time tractor-trailer two- Lawrence Wesley gaze tenths a mile from him. then took his pulled off of highway. Lawrence and out to cross the Wesley highway As started to cross the di- Lawrence glance Wesley verted his from him to his children. cross- highway ed to the other side of the and then Lawrence impact heard the caused the collision between the Wesley tractor-trailer and the automobile. Mr. Law- rence approaching there, said: “The truck was then my vision, though went out of and it looked as me they get way, both tried to out of one another’s pulled Wesley the truck around pulled around and they impact, had the and the accident occurred in the my truck, back of I impact.” Wesley didn’t see the passed highway had the middle of the impact. before right highwаy. The tractor-trailer was on the side of Mr. operating Lawrence said that he had been- a motor twenty years vehicle and he could not estimate the speed of the tractor-trailer. He said: “I saw truck approaching (indicating) here passed as car my center and I looked out parts other window and saw going through car and guard the truck rail and rolled over.” tractor-trailer, weighing
The more than 13 tons and cloth, coming loaded with slightly bales of grade, down approximately fifty striking skidded feet before Wesley After vehicle. the collision the tractor-trailer slightly grade continued down distance of a feet, pushed аgainst passenger guard car rail and eight guard posts knocked over seven or stopped steel overturned in field to the east the north bound lane. Wesley The pieces car was knocked to and scattered over seventy-five an area of feet. appellants here, course,
The are not affected contributory negligence and the doctrine of contributory negligence applicable is not in this case. doctrine last clear apply chance does not case for only that doctrine is invoked to avoid the bar contributory negligence Where there is no contribu- tory negligenсe the case at bar the doctrine of
6 Legum v. apply. does not of course
last clear chance State, 339, 355, 565; v. B. & O. A. 167 Md. State 464, 2, cases 459, 2d 5 and Co., 77 A. R. R. 196 Md. O’Donovan, 197 Md. cited; v. there Transit Co. Balto. 278-279, 647, 274, 649. A. 2d Marshall, 186 Md. In case of Shedlock passenger auto- in Shedlock’s 46 A. 2d Miller was a tractor- which the unfavored car. Marshall’s mobile was it is said In that case favored vehicle. trailer “Miller, course, could not be bound page at 237: negligence, and contributory if Shedlock Shedlock’s negligence of negligent both and the Marshall were both might accident, (Miller) have to the he contributed negligence gotten against a verdict' both. Shedlock’s proximate of the accident before had to be the cause therefore, question, before Marshall was absolved.” The whether, assuming case is Court the Childress which be evidence and inferences truth naturally legitimately deduced which tend therefrom claim, negligence of Arthur support appellant’s Stanley Wesley proximate cause of accident. was the Faulkner, 477, 163 A. Cab Co. v. Sun it, giving green light before it had the the Sun Cab injured carrying right way. an A Yellow Cab through instruction, man, the red went at an officer’s In that case Chief light collided with the Sun Cab. taking “But Judge 480: pages Bond 479 and said speed in the rate of proved that there negligence, approach, instance, in the must in this collision, or there to have the cause found been Company’s legal responsibility for it on the no Sun can be obviously, unexpected was, principal part. The Cab, through of the coming Yellow violation consequence way. doing not right so was Its other the Sun cab. Whatever speed maintained threatened, might speed have it could consequences the with to cause a collision it threatened said that not be through. contrary, coming the situation On the a cab so itself, con- by it, with its natural if left to all created *6 only one; and it was sequences, a safe have been agency the independent that by intervention of the agency resulted, not set independent an collision driving by of influenced the Sun motion or at all being being true, the assumed cab. That proxi- of the of could not be treated as a driver that cab mate, legal injury.” of the accident rely speed appellant on the
In this case the seems negligence. speed proof of the tractor-trailer as of fifty-five limit an hour and there is no evidence miles exceeding speed, limit. To show that Childress was length appellant fifty presents feet in before skid marks by impact, guard posts tearing down of steel complete the tractor-trailer after accident and passenger destruction of the car. The shows evidenсe weighed that this truck than 13 tons and contained more produced to a load of bales of cloth. evidence was No speed. show that the skid indicated No marks excessive type evidence was on introduced to show brakes truck, the condition of the road surface other than dry, it was the condition of the treads on the tires of truck, or the reaction time the driver. The driver had no here reason believe would dis- regard pull the boulevard law out in the road course, heavily front of him. Of when a tractor- loaded automobile, naturally impact an trailer strikes causes Negligence proven much destruction. cannot be from testimony happened as to what after the accident. There is no evidence as to what occurred in the tractor after collision. The truck driver have been thrown wheel, position from back with no control operation of the truck. The impact effect of the might speed by jamming have been accelerate its to the floor of accelerator the vehicle. points As Childress out, it is not difficult to understand how several steel away guard posts 125 feet from the collision could have destroyed by been weighing tractor-trailer over 13 heavily loaded, being tons and which was not steered or сontrolled manner its driver. There is no 8 operation of the truck be- in this case as to the
evidence course, specula- fore, during or after the collision. Of negligence. conjecture not to show tion and are sufficient motor vehicles at as to collisions between Rules highways, through in the instant intersections case, ½, Supplement, Article Sections under Code 1947 clearly definitely stated and 178 and have been purpose many applied in this Court. The cases clearly expressed these in the case statutes was Green Hook, page 2d 888 Md. 116 at 8 A. feld by Judge page 892, 1485, where it L. R. was said A. driving imposes, upon Offutt: one an “That statute highway intersecting along or on a *7 such a automobile highway, boulevard, duty street, stop arterial entering coming complete stop of to before the favored a yielding right way highway, of to and of all vehicles travelling duties, stopping thereon. The two of and yielding right way, of correlated co of are and give practica stopping ordinate. That of is to force and bility yielding right way, by requiring to that of of traveller, entering intersection, before inhibited stop may in order whether that he ascertain traffic approaching along highway. is over and the favored purpose, The rule could have no other rational yields right way unless the inhibited traveller of street, stop stopping traffic on the the mere of act would idle, useless, be and futile. obvious and essential purpose of flow such rules is to accelerate the of traffic through highways by permitting over travellers thereon interrup speed without lawful proceed within limits completely if purpose would be frustrated tion. That every required to slow down at travellers were such intersecting highway, the vast sums which have in an effort to accomodate spent their construction been traffic, in great which is so volume of automobile largely life, dispensable part would be a of modern travelling safety other hand the wasted. On the rights defining public relative demands that the rules highways through highways in- on on of travellers tersecting clear, unmistakeable, them to and definite. duty yielding right way stopping If the of and of inflexible, positive and traveller the inhibited know risk, that he violates it at his while the traveller on the highway may may safely favored know that he exercise privilege thereon, uninterrupted travel which the gives. If, however, rights statute the relative of travel- types highway on the depend upon lers two are held to speed, time, nice distance, calculations the rule encourage privilege recklessness and the of un- interrupted travel would privi- mean little more than lege having jury guess in the event a collision guess wrong. whose was If the traveller on stop required bring street were to slow down and his car into every control at percepti- intersection there would no ble difference between such a street and other street general on which traffic is controlled rules of quoted This road.” was in the case of Belle Isle Cab Pruitt, 174, Co. v. pages A, 187 Md. at 178 and 2d 537. Madge Fabrizio, 20 A. 2d
beer truck was way the favored vehicle on a favored or boulevard. The Barth automobile unfavored crossing vehicle and in the boulevard there was a collision between these two vеhicles. It said in that case page “Appellant 523: also makes the contention that *8 testimony because there is some to the effect that the speed of maximum the loaded beer truck exceeded the by law, allowed require this fact is to sufficient the case jury to showing be submitted to the on part driver, the of the truck but entirely this contention ignores proximate the fact that the of the accident speed part truck, was not on the of entry the but the upon by path the boulevard Barth in the of the truck.”
In Risling, 668, Rinehart v. 675, 180 page Md. at 26 411, page 414, A. 2d at holding this Court said in prayer the demurrer truck, of the owner of the the vehicle, granted: fаvored should been have “There no is evidence that this truck observing driver was not
10
the
he was on
It
admitted that
road ahead of him.
is
the
* *
*
of
right
is no evidence
of the road.
There
side
part
truck driver.
speed
on the
excessive
* * *
driver,
being
truck,
the favored
The driver of the
entering
right
car
to
the unfavored
had the
assume that
respect
provisions of the statute.”
the
the boulevard would
277,
O’Donovan,
274,
Md.
197
In Balto. Transit Co. v.
pulled
647,
out from
648,
Atl. 2nd
an automobile
78
driveways
grass plot
the
of a boulevard
the
between
bus,
Court said
front of
favored vehicle. This
the
applicable
“The
to collisions between
that case:
rules
highways,
through
at the
of
motor vehicles
intersection
and
Supp.,
66%,
Code 1947
Article
Sections
under
clearly
applied in
cases.
187,
recent
have
stated
been
carefully
v. Mar-
reviewed
Shedlock
The cases were
shall,
2d
In that case we stressed
46 A.
349.
only
duty
stop
to
to
but
the
of the unfavored driver not
way
during
right
yield
vehicle
its
of
to the favored
In
Cab
passage over
intersection.
Belle Isle
entire
Pruitt,
2d
where
suit
Md.
49 A.
Co. v.
vehicle,
by
passenger
em-
in the unfavored
right
placed upon
of the favored
phasis
vehicle
assumption
upon
that the unfavored vehicle
proceed
to
way.
yield
right
stop
that the
would
We held
entry
the accident was the
proximate cause of
speed
rather
than the
of the favored
vehicle
unfavored
primary purpose of
statute
Since
one.
traffic,
growing
huge
volume
speed the
require
operators
impractical
quite
vehicles
way
anticipate
per-
infractions of the
on the favored
command,
speed
every
and reduce
inter-
emptory
Monaghan,
77, 83,
Md.
Blinder v.
188 A.
section.
517, 520,
31; Madge
Fabrizio, 179 Md.
Applying
so
hereinbefore
stated and
Court,
repeated
to the facts of
often
this case
*9
light
legally
all inferences
deducible therefrom
a
and
appellant,
to
most favorable
is evident
that
proxi-
speed of the
tractor-trailer was not the
Childress
prayer
of this accident and its demurrer
was
mate cause
granted.
properly
To have submitted this case to
jury
required
speed,
would have
“nice calculations
time,
distance,”
Hook, supra,] which
and
[Greenfeld
in boulevard
forbidden
cases where the unfavored
right
way.
give
vehicle
fails
alleged against
father,
The amended declaration
Wesley:
“Defendant,
Wesley, through
Arthur
Arthur
Stanley Wesley,
agent, acting
his
and
son
with his
permission
behalf,
negligent
and in
opеra-
his
in the
tion of
his vehicle
the time of the accident as follows:
**
appellant
The
admits that there was not sufficient
jury
evidence for
find
driver of
the auto-
acting
agent
for
mobile was
as
Arthur
and with
permission
and
his behalf.
Code,
Supplement,
66V2,
pro-
Article
Section
“(a)
part
vides in
follows:
application
any
The
person
age
eighteen (18) years
under
for an in-
permit
operator’s
or
or
struction
chauffeur’s license shall
signed
verified,
person
before a
authorized
oaths, by
parent
guardian
administer
ap-
or
* * *
plicant.
Department
clearly
shall
set forth
application
on
responsibilities
assumed under
section,
Any
(b)
of a minor
under
age
eighteen (18) years
driving
when
a motor vehicle
upon
highway of
this State
imputed
shall be
to the
person
signed
application
who has
of such minor
license,
permit
for a
person
jointly
shall be
severally
with
liable
such
minor
damages
* *
negligence.
caused
such
During the first
day
trial,
of the local counsel received information
which led him to believe that Arthur Wesley,
father,
signed
application
had
the son’s
for a driver’s license,
thinking
but
the name
the son
Stanley
Wesley,
no record could be
Department
located
of Motor
any application
Vehicles
for a driver’s license in
*10
morning
During
Stanley Wesley.
the sеcond
of
the name
discovered
trial,
appellant
counsel
of the
the local
Arthur
was
operator of the car
real
of the
that the
name
alleged
Wesley,
Stanley
as
Stanley Wesley, instead of
amended declaration.
for Childress
then
that
the counsel
It was
discovered
Department of Motor
in court a
from
had
certificate
Stanley
Arthur
showing
application
of
that
Vehicles
“signed by
Wesley
Arthur Cecil
was
for a driver’s license
granting of
Wesley, father,
consenting to
parent
as
to
this
Appellant
offer
application”.
then endeavored
No. 10 and
as Plaintiff’s Exhibit
certificate in evidence
per-
аppellant
The
then asked
this was refused.
to
as
amend the declaration
read
to further
mission
on
18th
where it reads
paragraph
“In
one
follows:
1948,
p.m.,
passenger
day October,
about 3:30
auto-
Wesley
by
operated
Arthur
owned
defendant
mobile
following
by Stanley Wesley, I
to be
want
added.
having
Wesley
signed
Age
years, said Arthur
seventeen
Stanley
license
said
application for a driver’s
of the
by
required
All
Wesley
the rest
is to be as
as
statute.
three,
already
Paragraph
appears
on the record.
defen-
Wesley,
son,
Wesley through Stanley
Arthur
dant
driving
paragraph
one of
the automobile
stated
following things in
did the
accоrdance
declaration
four.”
paragraph
rest
The trial court then
with the
against
Arthur
the case
the defendant
stated
agency
operation
“by
common law
in the
reason of
was
in these
The
motor vehicle involved
cases.
motion
to make the
is intended
declaration conform
amend
liability
statutory
imposed
66*4,
Article
Section
* **
opinion
(b).
Court this
Sub-section
statutory
permit
of action and to
is
amend-
entirely
requested
state an
ment
different cause
originally
upon
from that
declared
action
and under
tried,
had been
all
which this case
and when
of the
* * *
testimony
plaintiff
question
concluded.
This
overnight
in this case
reаson
arisen
of some
has
taking
practically
activity,
since the
all the evidence
therefore re-
yesterday.”
The further amendment
10, supra, was not
Exhibit No.
fused
Plaintiff’s
Objections
permitted
were
to be offered
evidence.
judge.
rulings of
seasonally
the trial
We
made to these
agree
judge
this exhibit
not
with the trial
under
then filed.
admissible
the amended declaration as
Co. v.
certificate constituted a variance.
Smith
This
Kelso,
Smick,
500;
86 A.
Md.
Wilson v.
895.
80 A.
remaining question is
whether
not
amended
*11
should have been further
amended
declaration
as re-
Ordinarily
quested by
appellant.
appeal
the
no
will lie
allowing
refusing
or
from
action of
trial court
a
Practice,
Edition,
amendment.
Fifth
190;
Poe’s
Section
Co.,
Engle
Fidelity
Guaranty
174, 185,
&
The the trial that, permitted, the further amendment was if it were the second amended declaration would then state an entirely different from cause action that then declared upon. judge this conclusion of With the learned we agree. appellee, do Wesley, not Arthur also main tains in his brief that the further proposed amendment by appellant allege would a new and different of action and that such new action would have been barred provisions Campbell’s under Act, Lord Spencer Co., v. B. & O. R. R. 126 94 Md. In A. 660. the case Chesapeake Railway Co., Zier v. 98 56 Md. A. originаl brought declaration was damages to recover plaintiff’s husband, for the death of a fireman on the company, train alleged of defendant’s want of dili gence part on the of the employees officials or some of the of the defendant. An amendment adding was made alleging an additional negligence count of defendant consisted of its failure use due care in the selecting of by its fellow servants whose carelessness plaintiff’s the death decedent was caused. A plea of limitation was then filed to this additional count reversing, court. lower was sustained Judge McSherry pages through Chief
Court said change cause of action? “Did and 43: the amendment brought under Art. As have said the suit was we Code, maintained to permits action to which an person damages shall be whenever the death óf recover act, default; act, neglect if the wrongful or caused ensued) neglect (had have not death default damages respect injured party recover entitled the original though Now, defective declaration thereof. negligence alleged defendant. of the was founded on the it did insufficient in law —that narr was The fact formally accurately cause of set forth real not being prevent from not the suit itself action —did negligence gravamеn pending was the wherein the suit pre was made defendant. When amendment It cisely cause of action declared on. the same was count, imperfectly in the first but it was stated true correctly set forth. The it was the second negligence of count was the the de alleged in the first agents, through but none its the less the fendant though master, respects a servant negligence of the not actionable. In the second count master it *12 again negligence alleged negligence of was failing due to exercise care in the selection of master injury whom was fellowservants inflicted. negligence for to recover defendant’s But the suit was amendment after the had the same been made precisely antecedently. The statement of the was cause bút the was different cause action of itself action was of Injury resulting in death is what occasioned identical. imperfect of statement the case did the suit. not of it statement to be the correct a different cause cause Being cause the same of action the of action. accurate in the amended declaration of it did not statement con original new suit; suit into a and different vert the filing plea of other did not warrant therefore than as of Limitations such could of the Statute have * * * original interposed was, to the narr. There been
15 overruling thereto.” the demurrer consequently, error Co., 154 A. Bayonne O’Shaughnessy v. News also See Mutual 13, 14, 345; v. Hardware Johnson 9 N. J. Misc. 817, 820; Daley v. 481, Casualty Co., A. 2d 109 Vt. 1 Gates, Compare Machine 591, 193; Hamlin 27 A. Vt. 148, Mfg. Co., 450. v. The Md. 78 A. 2d Co. Holtite case, case, if supra, Zier the instant as in In allowed, precisely the same further amendment had been on. The declared action have been upon predicated was declaration before Court one son, responsibility the father’s for the driving “permission while with his father”. sought allegation again negli
the amendment gence imputed of the him father with his consent signing application his son’s for a driver’s license. 4, 1,
Rule Appeals Section the Rules the Court of provides: judgments “In all cases shall be re- where Appeals, versed or affirmed the Court of and it shall appear ought had, to the Court that a new trial to be such new trial be copy shall awarded a certified opinion judgment Appeals of the Court of shall be transmitted forthwith the court from which appeal taken, to the end that said cause again tried if tried; as it had never been and no procedendo, writ of transcript record, with shall be practiced.” Code, transmitted 5, as heretofore Article 24; Needle, 634, Section Gostin 2dA. 163 A. L. R. Believing and cases there cited. justice that the require ends of that the amended declara- tion as to amended, Arthur be further we will grant a new purpose trial of a further amendment father, Wesley. Arthur
Judgment affirmed, costs, with and cause Wesley,
as to Arthur father, remanded newa trial. *13 dissenting following J.,
Markell, delivered opinion. agree directed verdict should have been
I that a cannot for Childress. testimony automobile speed or distance an
All as to judgment, which the of human reflects frailties case weigh. of human jury the limitations must Within opportun- exceptional frailty, had the witness Lawrence Wesley car and the ity positions to observe pulled out of the time the car truck at the Childress end” lane. The “back the northbound crossover intо Wesley’s “just lane” and truck cleared that of Lawrence’s very lane”. near the northbound were “front wheels north side of the cross-over truck on the Lawrence’s directly Wesley on the south side were car directions, other, facing opposite neither opposite each higher car. Lawrence moving. than the The truck was Wesley’s and could also look face look down into could minutely beyond (at angle), straight different ahead a looked car, truck. When he first at the Childress place stopped, back, pulled into where he he before four-tenths of mile truck about a he saw Childress that, away. positive wаs four-tenths of a “I am Wesley “stopped turned head and looked his mile.” My “I could see the truck. truck in the face.” at me head, high I head truck and could see his a man’s was a top look over the and I could see in the car. I could They lower face. were at a level when his head and his Q. sitting Now, I the car than was. he away approaching truck was how far at that time? A. Well, say I would he had covered about half the distance * * * Q. Wesley of mile. And Two-tenths what did Wesley gaze A. took do at that time? off of me highway.” pulled out cross short, boy when the car, moved his full cargo, place helpless peril, of human into a in full truck, of the Childrеss the truck view was about two- of a mile—more than thousand away. tenths If feet — *14 legitimately testimony, might it jury this believed inferring? help could it infer —how —either possible) to (if that were truck was driven too fast feet, driver truck stop or that within one thousand him, or paying to the road ahead was not attention speed to excessive stop due both that his failure to Any would be consistent inference and inattention. such eight slaughter near-complete out with the —seven physical of the accident. results killed —and the other suggested truck driver is that after the accident the It may truck and the accelerator have lost control jammed If the is to floor. latter have been possibility, speculative possibility, unsupported ais by evidence. manslaughter prosecution is not a for murder or
This “manslaughter by or for even the venial offense auto- weighed mobile”. It is that “this truck more than said thirteen tons and contained a load of bales of cloth. No to skid marks evidence was introduced show that speed. indicated excessive No evidence was introduced truck, to type show the of brakes on the the condition dry, surface other than it the condition road truck, of the treads on the tires of the or the reaction any time the driver”. Has such evidence ever been necessary jury? held to take a case to the What could shown more about the condition of the themselves, speak road? often Skid marks without explain fifty further to them. If evidence these foot skid marks before the collision do not indicate excessive they may speed, neglect confirm alternative or cumulative any to make effort in the first thousand feet avoid the primary purpose collision. If “the of the statute is huge growing speed traffic”, volume there pursue purpose no utterly regardless is mandate to legally obliged of life or No any limb. one is to drive fifty-five motor vehicle miles an hour. The most driver, perfect condition, alert of a car in easily most controlled, greater is forbidden to speed drive at a than fifty-five per miles hour. If a thirteen ton truck is (as it passenger car
more difficult to control than a is), if or out of doubtless the brakes are unsuitable repair, worn, if or the driver’s the treads on the tires are time, by age health, slow, reaction or ill reason negli- all of these circumstances are not an excuse gence, greater speed. monition care less but are a It to believe is said that “the driver here had no reason disregard law and the boulevard *15 pull out in in front of him”. the road But after disregarded by pulling had out in boulevard law him, plain the road in front of in view more than feet, right a thousand the driver had no to mow them down; speed It is said that “the of the Childress tractor- proximate trailer was not accident this granted. prayer properly and demurrer its To have jury required this case to the ‘nice submitted have speed, calculations of time and v. distance’. Greenfeld * * Hook, *, which is forbidden in boulevard cases where give right way.” the unfavored vehicle fails to This conclusion is reached after a full review of cases Company Faulkner, in this court from Sun Cab v. 163 194, 477, 163 A. Company Md. Baltimore Transit v. O’Donovan, 274, 647, including 197 Md. 78 A. 2d Green Hook, 116, 888, v. 177 Md. 8 A. 2d 136 A. L. R. 1485. feld case, case, In the Faulkner the O’Donоvan and similar cases, (or pedestrian) pulled unfavored driver had (or stepped) in front of the favored vehicle without warning giving expect act, reason such an too late for the favored driver to avoid collision after- wards. The difference between those cases cases speed prevented where excessive the favored driver avoiding from opportunity peril accident after to see the vehicle, pointed of the unfavored out in the recent Graff, 609, 618, case Miller v. 220, A. 78 2d difference, between 223. The the cases cited and the is about greater instant case one thousand feet —much in Millеr v. than Graff.
Although speed, and dis- “nice calculations of time Hook, forbidden v. tance” are said to be Greenfeld in v. Hook court did fact that sub- is Greenfeld jury question plaintiff’s to the whether “the mit apparent de- position was or should have been nearly square” supplied] 177 fendant [italics half 895, recognize I 2d 136 A. L. R. 1485. A. Md. facts in v. Hook that the decision on the Greenfeld applying with perhaps be irreconcilable later cases principles v. Hook. But no case before Greenfeld suggests no instant case that a favored driver is under view, duty persons peril, plain to see avoid anywhere away. In near a thousand feet use Stаte Gosnell, Md. Frizzell v. 79 A. 2d both sight feet, cars of each other for a thousand were but we held that of the deceased was con- up to moment current the last and we not decide did negligence. defendant was from free Hook the not Unlike instant case does Greenfeld doctrine, involve the clear chance” “last because there question contributory negligence. no re- *16 spect however, simpler is, the instant case is a case. It typical case of kind of which the i.e., example, “last clear chance” doctrine furnishes an person peril failure to see and avoid a after he help unable to himself. No nice calculations are re- quired in this case.