*1 THOMAS DOUGLAS et al. v. E. DEAN ROBERT Rep. Estate REDMILES, Pers.
Douglas Redmiles, Thomas
Jr., et al. Term, 24, September 1976.]
[No. April
Decided *2 May 13, 1977; opinion Motion reconsideration for filed May 31,1977. and motion denied modified J., argued The C. cause was before Singley, Murphy, JJ. Eldridge, Smith, Digges, Levine Perry were Camus, with whom Camus & P. Edward al., brief, Clara Muller et Perry on the for W. Darlene G. with whom was appellants. Hymes, John William R. Dean, brief, appellant. E. other on the for Robert Corbley C. *3 Sills, whom were Green, Jr., Joseph with G. Frederick J. Coughlan Green, P.A., Lansdale G. Jr., Lorrd, Whip, and & brief, on for the
Sasscer, Jr., and Foster H. Fanseen appellees. J., opinion of the C. delivered Court. Murphy,
Smith, dissenting opinion J., page at filed a dissents and infra. proper again application we must of the Once consider presented law.” In the issue arises
“boulevard this instance Maryland (1957, Repl. Vol.) 66V2, under Code Art. “enter[ing] cross[ing] 11-404 relative to a § driveway____” private from road or The most common application, however, stating arises under 11-403 § 1-198) “through highways” (a term in vehicles on defined § right-of-way. are to have the liability here with a favored
We concerned are in passenger vehicle. Since his we conclude that to (Taylor, J.) correctly judge the trial determined that liability boulevard law did not insulate this driver from bo 1. In we conclude the title “Bothersome Boulevards” used doinfi W, L, by Webb, Esq., (1966), apt John Ill T. 26 Md. Rev. is an one. passenger, judgment we reverse the
his shall Court of App. Special Appeals Muller, Redmiles v. (1975). 2d 291 A. fully opinion
The are forth in the of the Court of facts set Special Appeals. only We relate here as shall such facts are understanding opinion. necessary for a clear of the Moore, Appellants, parents W. Muller and Clara Robert E. (passenger in Terry Ann Moore the favored vehicle who Muller, fatally injured), and Clara W. administratrix of Douglas Redmiles, personal estate, her sued Thomas representative Douglas Redmiles, estate of Thomas Jr:, (the estate); Redmiles estate or deceased Mr. Sr.; (owner Redmiles, (Dean) Robert E. Dean operator vehicle). Redmiles, (Redmiles) of the unfavored Jr. operator was the the favored vehicle which was owned judgment father. After a trial for costs was Redmiles, Judgments entered favor of Mr. for Sr. monetary damages were recorded Dean and the estate in favor of surviving the estate of Miss Moore her parents. appealed The Redmiles estate to the Court of Special Appeals. appeal. However, did appears Dean appellant here, indicating as an company that he would like judgment in the damages. matter of the for The Court of Special Appeals that the Boulevard Rule was “concludefd] applicable [,]... that there was no evidence of of the favored driver which was the [, cause of the collision and lower erred court ... thus] [t]he refusing grant directed verdict in appellant favor of Redmiles.” presented
The appellants sole issue whether *4 Special Appeals Court of concluding in erred that the negligence of the favored driver should not have been jury. Our presents submitted conclusion that it did err the issue which the Redmiles estate asks that we decide in conclusion, the event of such a whether the trial court erred in its jury. instructions to the point The latter was not decided Special the Appeals Court of of its because decision relative to the boulevard point law..We decide in the economy the judicial interest of time.
1. The facts shortly midnight question before in occurred The incident in January 14, 1972, Rt. 1 front of the Friday, on S.U. on highway County. The at that Inn Red in Howard Rooster It four lane generally and south. point north runs separating northbound yellow line highway with a double in the area was The limit and traffic. southbound clear; temperature, the per hour. The weather was miles Inn dry. The Rooster is located cold; roadway, Red and the the 400 feet south of about on the west side the a hill. crest of southerly traveling in direction on Rt. 1. been
Dean had he turned around companion request At of his female Inn. the Red He made north to visit Rooster proceeded and purpose of for the traffic left across southbound turn in the of the Red Rooster parking in front door center parked building his was would Inn so when vehicle that highway. He perpendicular on the to the flow traffic enough proposed parking not wide space was found that his since the two vehicles each side for the front of car they angle parked such an that were closer space were at began out together the rear. He to back in the front than “making after, put it, no certain there was space stalled, being car approaching traffic.” His southbound A equipped with an automatic transmission. collision ensued operated Dean between the vehicle Redmiles passenger, Terry Moore, Ann were vehicle. Redmiles and his testimony There was killed the collision. time prior stopped Dean vehicle was the boulevard longer.” “might minute, maybe collision a little been a have speeds At the here involved this could have meant Redmiles was a mile down the road when Dean’s car stalled. proceeding southerly was
Redmiles on Rt. 1. direction nearby returning He Miss Moore were from a visit to (Welte) home of a friend. E. William Welte had visited same Welte Redmiles within a few minutes of home. left Welte, too, proceeding each other. south on Rt. 1. response question whether Redmiles car to a as to “the [was] *5 , alongside, or behind” him when he reached front of immediately north of the Red Rooster to
the crest of the hill made, replied: previously Welte which reference has been really “I whether it was in of me can’t recall front me, me, behind was more or less but it close me, maybe beside a little in front or a little behind. I can’t be sure.” “sitting sideways
He observed the Dean vehicle in the slow lane, south, of the Red the south Rooster.” Welte “hit brakes” when he observed the Dean He vehicle. [his] they “guess[ed] up and locked skidded and went off to [he] get way.” ultimately stopped left to out of the His vehicle at a service station across road from the Red Rooster. oncoming Welte observed no northbound traffic on Rt. veering any when his left, vehicle was did he see nor general obstructions in the area of the Red Rooster other swinging than the Dean vehicle. He indicated that as he was skidding, left as far as he knew “the inside southbound lane and the two northbound lanes clear [were] got of traffic.” Welte said that “after more or less [he] [his] control, right car in full looked over to the seen [he] [he] lights sliding tail down the road and him seen strike the [he] up side,” other indicating car and it went on its he was referring to the Redmiles vehicle. Welte was the service parking station when lot he observed the Redmiles vehicle collide with investigating the Dean car. The officer said that approximately Welte vehicle laid down 200 feet of skid marks while the Redmiles car left 234 feet of skid about All of the skid marks. Redmiles marks were in the “slow” lane of travel. originally police traveling
Welte told the that he was at a speed per Redmiles, of 45 to 50 miles hour and at 55 to 60 per changed miles hour. He later this to indicate that he was traveling per. at 50 to 55 miles hour and that Redmiles going 65 per to 70 miles hour. At trial he said that he could “really say” what his was. His vehicle was equipped power with brakes. the boulevard holdings relative to Our prior statutory evi- violations as law, speed, *6 ofnegligenee
dence
holdings
prior
relative to the
review
shall first
our
We
prior holdings concerning
well
our
as
law as
boulevard
violations,
speeding, are evidence
statutory
such as
whether
negligence.
Vol.)
66V2,
Repl.
Art.
Maryland
(1957,
11-403
1970
Code
§
a
(b)
shall
to
full
driver of a vehicle
come
states that “[t]he
yield
through highway
shall
and
stop ... at the entrance to
approaching on the
right-of-way
vehicles
the
to other
provisions are
through highway.”
contained
Similar
stop sign”
(c)
to a
and
11-403 with reference to “obedience
§
(d)
roadway
which a
11-403
“a street or
on
relative to
§
‘yield
‘yield’ sign
facing
right-of-way’ or
erected
the driver
is
merging point
approach
an
with
to
intersection or
roadway
Mullhausen,
....”
another street or
Shriner v.
104,
Collins,
(1956),
2d
210 Md.
122 A.
570
and Grue et al. v.
cases,
157,
(1964), among
150,
205
2d 260
other
237 Md.
A.
language
66V2,
11-404
this Court has held
of Art.
§
entering
highway
private road or
to
from a
relative
driveway
entering
paved
highway from an
public
and
public highway is
unpaved
to be accorded the same
given
interpretation
have
held that
as that
11-403. We
also
§
signals
come within
boulevard rule
automatic traffic
and, therefore,
law with
to
reference
them should be
interpretation
an
similar to that relative to
accorded
stop signs.
pertaining
See, e.g.,
to boulevards and
statute
586, 598,
(1968);
Bullock,
Md.
244
240
v.
250
A. 2d
Clemons
480, 486,
(1967);
226
540
Thompson
Terry, 245 Md.
A. 2d
v.
State,
112, 123, 169
and
Eastern
A. 2d
Contractors v.
(1961).
Many persons regard
having
rule
the boulevard
been
originally
Hook,
116, 132,
announced in
177 Md.
Greenfeld
(1939),
progenitor
“mandatory, positive imperative is the duty person driving an an automobile over highway, approaches when
unfavored
an
intersecting
lawfully designated
as a
street,’
‘stop
stop
entering
‘boulevard’ or
to
before
intersection,
having stopped,
to exercise
diligence
reasonable care
discover whether
intersection,
approaching
and,
traffic thereon
having
intersection,
right
yield
entered the
traffic, by
proceed
way
permitting
to such
it to
duty persists
interruption, and that that
without
throughout
passage
way.”
across the
favored
cases,
There
however,
are a
prior
number of
to Greenfeld
which seem-
See, e.g.,
to embrace the rule.
Carlin v.
505,
Worthington,
(1937);
A. 356
Blinder v.
Monaghan,
(1936);
Representative of
suits
favored driver
unfavored driver are
Gray,
631, 357
Schwier v.
277 Md.
2dA.
(1976);
100
211,
Lines, Inc.,
Pinchbeck v.
Tank
258
Balto.
Md.
(1970);
145
driver in Hensel v.
the favored
driver sued
The unfavored
v.
Creaser
(1974);
2d 196
426,
A.
Beckward, 273
Md.
330
Page,
v.
(1972);
Nicholson
238,
A. 2d 235
Owens,
297
Md.
267
Hellman, 250
v.
(1969);
659,
2d 319
259 A.
255 Md.
Trionfo
621,
Sandler, 245
Md.
(1968); Hardy v
12,
As a result
Green v.
litigation
involved
drivers were
unfavored
Taylor,
Davis v.
(1961),
Zile, 225 Md.
339,
Cases
which
Homer, 244 Md.
include Slutter
v.
the favored driver
sued
(1966); Schweigerath
Berger, 237 Md.
131,
v.
Passengers of
*8
driver sued the unfavored driver
a favored
Woods,
in Quinn Freight
381,
Lines v.
266 Md.
Both
491,
(1976);
2d 471
v.
277
355 A.
Boyd,
driver in
Md.
Kopitzki
480,
(1967);
2d 540
226 A.
Thompson
Terry,
v.
Sun
198,
(1961);
“In the case at bar the driver of the taxicab had right to assume McElderry that a driver on stop yield Street would right way though may him.... Even the cab have been traveling rapid speed, at gross rate of it was the negligence Lewis, and not the speed, cab’s rate of that was the cause of the accident. It conjecture would be mere say might that the cab not have been struck if its rate of had been different.” Id. at 360.
The
favored driver
passenger
wás sued
in Yellow
Bonds,
Cab Co. v.
Md.
(1966);
Company, Cusick, supra, Inc. v. has the boulevard law been
147 brought recovery driver in suit bar from favored held to there, pointed out, as we have this passenger. Even his holding hardly that be to be a clear-cut can said liability the favored driver from to law boulevard insulates negligence. attempted our passenger for his We have his types arising under the boulevard various of suits citation of all, reaching most, this rule to include if not of the cases preponderance vast of this Court. It will seen litigation favored and has concerned suits between Accordingly, much has been said unfavored of what drivers. placed in rule must be with reference to the boulevard context. emerge The principles those boulevard
Certain
from
cases.
expedite
flow of traffic
is intended
law
to
238, 246;
Md.
Owens, supra, 267
Brown
boulevard. Creaser v.
487, 494-95;
Reeves, supra,
236
Ellis,
Md.
Zeamer v.
supra,
v.
532;
24, 31;
526,
Higgs, supra, 225 Md.
Harper v.
Sun
225 Md.
467;
461,
supra, 199 Md.
v.
Co.,
Hall,
v.
Inc.
Cab
Greenfeld
116, 125;
Hook,
Monaghan,
and
v
177 Md.
Blinder
supra,
duty
77,
an unfavored
83. The
driver
171 Md.
supra,
mandatory,
yield
right-of-way
positive, and
stop
is
Owens, supra;
Bradley,
v.
inflexible.
Cornias v.
Creaser
479, 496-97;Hardy
245 Md.
Sandler, supra,
Md.
v.
supra, 254
621,
209 Md.
624;
Cusick, supra,
Company,
Cab
Sun
Inc. v.
354, 359;
116, 126;
Hook, supra, 177
v.
Md.
Greenfeld
Monaghan, supra,
77, Accordingly,
Md.
an
171
Blinder v.
requirement
unfavored
his
driver violates this
at
own risk.
involved,
Thus,
is
an
last clear chance
unless
doctrine
plaintiff
as
is
driver’s claim a
defeated
unfavored
yield
right-of-way,
guilty
since
is then
failure
contributory negligence
Gray,
as a
matter
law.
v.
Schwier
631, 634;
Boyd, supra,
277 Md.
v.
277 Md.
Kopitzki
supra,
491, 495;
426, 431;
Beckward,
273
supra,
v.
Md.
Hensel
Md, 238, 248;
supra,
Creaser v.
v.
Owens,
Trionfo
12, 18-19;Hardy
Sandler,
Heilman,
supra,
v.
supra,
137;
621, 625;
Homer, supra, Md.
Slutter v.
14;
Allen,
Marshall,
Cooper
supra,
Shedlock v.
218, 235,
(1946);
245 Md.
supra, 237 Md.
68,
70;
Bloomberg, supra,
Dunnill v.
230, 234;
228 Md.
McDonald
Wolfe,
supra,
Reeves,
v.
198, 203;
226
supra,
Zeamer v.
Md.
526, 532; Lilly
State,
v.
436,
225 Md.
442,
212 Md.
129 A. 2d
DeFontes,
(1957);
supra,
Fowler v.
839
568, 576;
211 Md.
Sun
Co.,
Hall,
supra,
Sonnenburg
Cab
Inc.
461, 467;
199
v.
Md.
v.
Tours,
Monumental
227, 234,
198 Md.
(1951);
A. 2d 617
Childress,
supra,
Brooks v.
7;
1,
Md.
Baltimore Transit
O'Donovan, supra,
Co. v.
274, 278;
197 Md.
Belle
Cab
Isle
Co.
Pruitt,
supra, 187 Md.
174, 180;
Risling,
Rinehart v.
and
supra,
668,
However,
675.
may
Md.
favored
driver
proceed
complete disregard
danger.
Racine
of obvious
Wheeler,
139,
supra,
Ellis,
145-46;
supra,
Brown v.
487, 495;
Zile, supra,
345;
236 Md.
Green v.
339,
Package
supra,
State
Co.,
v. Marvil
It follows from what we have
contributory
said relative to
negligence as a defense
a favored
to
driver’s claim
an
unfavored driver that the boulevard rule does not relieve the
duty
favored driver
from
degree
to observe that
ordinary
safety
care for his own
imposed upon
which is
all
men. From
further
follows rule
boulevard
duty
does not relieve the favored driver'from the
to use that
degree
passenger
of care for a
in his vehicle which one
expects
normally prudent
driver
exercise on behalf of
to
passenger.
DeFontes, supra,
“Of the favored has the yield will right to assume that the unfavored him, right way not mean that that does absolute, favored has traveler on the an unqualified, complete right way at all times right way and under all circumstances. This is to regard enjoyed with due circumstances Worthington, 172 existing. Carlin v. then there 505, 508, 356; Marshall, 192 A. Shedlock v. 231,”’ supra, *11 repeated that was with a citation to statement Fowler State, supra, 436, 212 Md. 442-43.
Lilly v.
making
applicable
a vehicle
its
The boulevard law is not
to
613,
Scheid, 223 Md.
exit from the boulevard. Palmer v.
616-17,
(1960),
Trails,
166
2d 244
and Safeway
A.
Inc. v.
206, 212,
Smith,
(1960).
222 Md.
159 A. 2d
There are
823
other factors which can remove a
from
boulevard
case
instance,
65, 188
For
2d
Crum,
rule.
McCann
231 Md.
A.
v.
Judge
(1963),
537
Hammond said for the Court:
entering
“If the
car has cleared the intersection and
point
reached a
where
interfere with
it does not
right
through
favored driver’s
way
of
the inter
section, the
applica
boulevard
law ceases
Males,
Ness v.
(, 239-40,
ble.
201
235
93
Md.
A. 2d
(1953)]; Shaneybrook
Blizzard,
541
v.
68.
150 supra, 150, To like effect see Grue et al. Collins, v. Md. 157.
Our cases have rights referred to the fact relative parties of the at an intersection a boulevard and an unfavored depend are not to be held to on nice speed, calculations time or purpose distance lest the rule, boulevard accelerate the flow of traffic over the to. through highway speed, at the permitted See, be thwarted.2 487, e.g., Ellis, 495-96; supra, Brown v. 236 Md. Zeamer v. 526, Reeves, supra, 532; 225 Md. Harper Higgs, supra, v. 24, 36; 1, 11; Childress, supra,
Md. Brooks v. Also, 116, Hook, supra, Md. some of our Greenfeld boulevard cases contain statements such as that “[t]here speed no sufficient evidence excessive ... warrant question jury.” the submission of that See, e.g., 533; Reeves, supra, 526, Taylor, Zeamer v. Davis v. 84, 87; supra, 217 Md. Monaghan, Blinder supra, 83; Becker, 32, 36; supra, Motor Tours v. 165Md. and Sun Faulkner, supra, Cab Co. v. 480. The statement regarding nice only calculations is true because in a rare involving instance in our cases the boulevard law where it may fairly be said that the of the favored driver was a proximate cause accident such manner that question should jury. be considered In those instances brought by where a suit .has been an unfavored driver against a favored driver the statements relative to speed” “excessive favored driver and “nice in determining negligence applicable calculations” are yield because the failure of the unfavored driver to right-of-way contributory renders him guilty *12 in bringing as a matter of law the absence evidence the play. represented clear chance doctrine into is last This well Gosnell, involving 197 Md. supra, a case the State language If this precisely and similar been has sometimes used less used, than it should have been it must be that “even Homer remembered Poética, indignant Horace,, good nods.” but in nods, DeArte “I too am when Homer long permitted a sle.ep.”Hence, work it saying, is to snatch a little the Evans, Dictionary (1968). Homer nods.” “even B. of Quotations 320.3 against drivers, driver two favored an unfavored claim of Judge said for the Court: Grason where
“Assuming, deciding, testimony without that the finding appellees’ cars were warrants a traveling speed, rate of at an unlawful were right racing, nevertheless, Frizzell was without traveling in across boulevard.” violate law at 390. Id. Mullhausen, supra,
To effect Shriner v. similar see 104, 118. speed, time or “nice calculations
The matter in slightly manner different put a distance” Supp. (D. 206 F. Inc., Pyle, Duie v. A. Goosman 1963), (4th Cir. F. 2d 45 1962), grounds, on other rev’d Singley Kopitzki Boyd, Court by Judge for the quoted Judge Northrop said Goosman: Md. 497. at supra, making against prohibition nice calculations “The making prevent judge from all does prohibition every nature; calculations of close, hair-splitting only pertains to those expected of which cannot calculations im- reasonably when prudent driver favored upon mediately an intrusion confronted right way. the times and distances are Where longer ‘nice,’ great, no and the calculations are inapplicable.” (Emphasis at 127. prohibition is Id. original.) involving passenger case the claim of the of an against the favored driver or the claim of a unfavored passenger driver, aof favored driver the favored violating the favored driver is does fact that law jury question not become unless evidence sufficient to warrant a is a conclusion that violation *13 152 concerning injury complaint See, which
cause of the made. instance, 659, 664, 255 Page, Md. supra, for Nicholson v. Judge Court, Barnes said for the ‘The defendant where ‘mere of a correctly observes that the violation statute will damages, legally support not an action for unless there is proximate evidence show the violation was a sufficient injury complained of,’ citing cause our decision to that 248, 549, 240, 240 Smith, effect Md. 213 A. 2d Fowler v. 534, (1965).” 541, 555 2d Bradford, 213 Md. 132 Ford v. A. Judge (1957), Court, said for 488 Prescott the “It has been many held Court the occasions that violation aof regulation statutory negligence, is evidence of and if such injuries complained violation or causes contributes negligence. 272, 269, it constitutes 162 Webb, Miles v. [(1932)].” 159 A. 782 The Court went on hold Ford to comply whether an had individual “failed to with [a] statute and whether this failure caused contrib- [plaintiffs] damages presented uted questions.” Wolfensberger, Norris (1968), 757 A. 2d concerned an accident which a mo- requiring torist was said to have violated a statute that a left-hand turn be made from the extreme left- Judge Horney hand lane. there said for Court: turning “As motorist this was not in case meaning the extreme lane left-hand within the (e), the trial court should have ruled not as a § negligence.3 matter of law that she free of On hand that does not other mean the court granted should have a directed verdict turning having contributorily motorist for been negligent. It is the passing clear that motorist was category persons one of the whom the statute protect was intended to and that the accident was of the nature of those statute is intended to prevent. the happening Nevertheless accident not, did since the violation of a rule of the road is negligence compel finding per se, of an presumption irrebuttable or even Baking negligence, Kelly Company4 v. Huber though may, if the (1924), Atl. 782 accident, violation was the cause *14 negligence put of prima create a case facie showing party burden on the other that was justified violating Mullenix, in the rule. Miller v. 229, 176 (1961).
227 Md.
A. 2d 203
And see Liberto v.
62,
698,
65,
(1959).
A. 2d
700
Holfeldt,
Ordinarily
questions
negligence
therefore
jury
de
cause would be for the
cide.”
may
jury question
In
“3.
some eases it
be a
as to whether a
just
motorist was in the extreme left-hand lane
as it is often a
question
curb or
practical
as to whether a motorist
close as
kept
edge
roadway.
Feinglos Weiner,
38;
See
181 Md.
Exposition Co.,
Mauchle v. Panama Pacific International
174 Pac.
McGregor
(Cal.);
Weinstein,
(Mont.);
jurisdictions regulation where the involved relates to the so-called Driving wrong “law of the road”. on the side of the road is not so clearly wrongful driving prohibited speed, act as at a for the may circumstances be such as to excuse a violation of the law of generally the road. Hence the prima violation is said to be fade negligence, rebut the 640-41. given opportunity and the violator of the rule is an ” negligence arising against inference him.’ Id. at (Emphasis original.) The first of the cases we passenger have cited in which a of a favored permitted driver was to recover from the favored driver is Co., Sun Cab Hall, supra, Inc. v. passenger
461. There the judgment recovered a which was affirmed appeal. this Court on The law boulevard was applicable. held question The before the Court was: “whether, considering testimony most favorable to the plaintiffs, any there primary evidence of negligence driver, of the cab any whether there was basis application of the doctrine last
for clear chance.” The said: Court earnestly appellant
“It is contended that the right cab driver had the to assume that going law, automobile was not to violate the inattention, any, if was not under the circumstances, and that when he first became coming aware that the other vehicle was into the intersection, it was late for him to stop.” too Id. at pointed It that of involving out the number of cases “the intersection,” duties vehicles at a boulevard relative only one, O’Donovan, supra, Baltimore Transit Co. v. plaintiff a passenger “was in the vehicle on the *15 highway.” Judge Marbury favored Chief said further for the Court:
“Appellant urges negligence that not is in a driver, determining favored and is irrelevant in the respective rights between favored and unfavored citing drivers, Childress, Brooks v. and supra Sonnenburg v. Monumental Tours, supra. Motor 7], Brooks Childress, Md. we there said [198 was no evidence the that Childress tractor-trailer exceeding was speed limit, the the driver ‘had no reason to Wesley disregard believe that would pull the boulevard law out the in road in front of In Sonnenburg him.’ v. Monumental Motor Tours, 227, 234], we ‘The said: driver of a [198 any taxicab or duty other driver is not under a to anticipate, in the evidence, absence other that — — drivers will often ever negligently or cross violation the (Emphasis boulevard law.’ supplied.) And, on, discussing further Greenfeld 888, 136 8 A. 2d one Hook. A.L.R. 1485. passages cases, ‘And in other we said: earliest the recognized that the opinion court the that highway does not have an absolute favored the circumstances.’ Neither right proceed under all to a driver on a favored holds that cases these regard to the proceed without can usurping right his possibility other driver of some way. purpose for posted “Boulevards are accelerating traffic, they are constituted not but not speedways drivers who do watch for reckless going is driver on a is on. It what true obliged anticipate that someone is to boulevard not path, he is not negligently come into his but will liability passengers if to someone from excused in, he to a collision does come fails avoid he not look in time to see what was because did testimony us, case before inevitable. There permit said, have which would we looking, he find had cab driver been could entering intersection, car have seen other enough far could seen this when was and he have accident, away unlike the to have avoided no case, where there was such evidence. O’Donovan destroy change or the effect of We do alter previous on the law when our decisions boulevard we hold that there sufficient evidence this go case of the of the cab driver to jury.” at 466-67. Id.
The second such case was
Bonds, supra,
Yellow Cab
v.Co.
also
cause of the
holding
accident.” In
was,
the Court said:
proximate
“That there can be more than one
clearly
cause of an
accident
established. While
negligence
of the cabdriver must have been a
pnmmate
recovery
order to
came
warrant
passenger,
did
necessarily
not
have to be the
negligence
sole
cause of the accident. The
operator
intruding
of the
of the
did
automobile
not
liability
excuse the
owner and
cab
driver from
for
damages.
enough
It was
that the
of the
cabdriver,
in concurrence with that of the other
motorist, proximately caused or contributed to the
injuries
passenger
sustained. Yellow Cab Co. v.
563, 168
Hicks,
(1961);
2d
Armiger v.
A.
501
Co.,
Baltimore Transit
“The is that liability boulevard law relieved them from because operator driver, of the cab favored but this fact did not relieve the cabdriver of the obligation to use due care under the circumstances 24, 169 this Harper Higgs, case. A. 2d (1961); Pruitt, Belle Isle Cab Co. v. 187Md. (1946). A. 2d 537 Nor did the fact concurrent tort-feasor violated the boulevard law affect appellee against claim of the appellants.
“Rather, since the accident was the result of contributing causes, concurrent and there is evidence that the cabdriver was alert as he been, case, should have involving besides law, violation of the boulevard also involves a 224(a) violation of of Article 66V2 the Code § (1957)providing that: *17 vehicle shall not a motor driver of
‘The closely than is vehicle more another follow regard having prudent, due and reasonable vehicles and of such for the and upon condition of traffic highway.’ in keeping with these factors driver, charged
A
reasonably
prudently,
obliged
and
mind,
to act
is
(1950),
282, 71
2d 45
194 Md.
A.
Gallo,
v.
Sieland
generally
question
a
did
so
and whether
not
Christman
to determine.
for the
of fact
Id,
(1950).”
at 90-91.
Weil, 207,
Although driver the defendant favored might argued operator it that his cases was a taxi upon him carriage passenger placed his contract for safe driver, ordinary Court higher duty care than an fact. No appeared way in no to rest its decision on that Kopitzki Boyd, however, involved, in common carrier was by this Court after the decision supra, decided Special Appeals. did not conceive the Court of We below enunciating any Judge Singley new As Kopitzki law. question presented Kopitzki, put for “The it the Court [in a driver on a boulevard involved whether favored was] on an road who fails collision with driver unfavored right-of-way protection yield the is entitled to the of the against law in a filed him his boulevard action passenger.” prior Kopitzki
We’heard its consideration the Court Special Appeals. The driver favored there contended that directing the trial court erred a verdict in favor his passenger, saying the boulevard was law plainly applicable, that, notwithstanding evidence speeding drinking part, on his the sole cause of the accident was the failure unfavored driver to yield right-of-way to Mm as the driver on the favored testimony
boulevard. There from in the left-hand lane of the boulevard that defendant favored *18 passed speed per him a at 70 to 80 miles hour at a point approximately 150 to 200 feet from the vehicle of the began unfavored driver at the moment it to move onto the highway.
Judge Singley fully reviewed prior for the Court our Webb, quoted boulevard cases. He from J. Bothersome Boulevards, (1966), Md. L. Rev. which it was said: is, therefore, justification
“There
no
for further
privilege
extension of the
of the favored driver into
originally
driving
situations where he has
been
unlawfully
carelessly. Ordinarily,
in most
boulevard cases it
material what
favored
doing.
driver was
The accident would never have
happened if
yielded right
the unfavored vehicle had
way,
and the conduct of the unfavored driver is
proximate
the sole
cause of the
But if
accident.
it
be
can
shown that
favored
driver could have
avoided the
if
operating
accident
he had been
lawfully
care,
negligence
and with due
then the
the favored
jury.
driver should be an
for the
issue
involving
On the
few recent decisions
above,
of the favored driver
it
cited
can
argued
present
that this is the
trend.”
prediction
It
observed in
was
that “this
Kopitzki
ha[d]
acquired
support”
additional
with
citations
Pinchbeck v.
211;
Lines, Inc., supra,
Balto. Tank
Cornias v.
Bradley, supra,
Wheeler, supra,
and Racine v.
In
it was
out that
driver on the
Kopitzki
the other
highway,
exceeding
favored
“who admitted that he too was
time,
striking
(the
limit at the
was able to avoid
entering vehicle),
jamming on his brakes.” The
without
Court concluded that
could
found that
have
“[t]he
Kopitzki’s
was
inattention that was a
cause of the
support
which would
negligent conduct
This was
accident.
Kopitzki,
[she]
claim
passenger’s]
[the
it,” citing
Ellis,
Brown v.
jury consider
to have
entitled
Prescott,
discussing
Judge
There
Md. at
supra,
for the Court:
contributory negligence, said
boulevard
he is within the
“Appellant contends that
There can be
of law.
as a matter
on this issue
rule
of this Court have
the decisions
doubt that
little
upheld
driver’s
guarded
the favored
jealously
fact,
cases.
way in boulevard
right of
go
any
as far as
of our
Maryland decisions seem
way.
rights of
upholding
such
sister States
ever stated
However,
of this Court has
no decision
complete and
driver has a
such a favored
duty
right way
him of all
which relieves
absolute
ordinary
for his
care
to exercise reasonable
*19
contrary,
Court,
early
safety. On the
this
as
as
own
[,
1939,
Hook,
highway
an
have]
[does
complete right
way,
at all times and under
circumstances,
persons
lawfully
over
who
all
have
street,
proceed
entered the
nor
thereon
[can he]
danger
indifference
to which
blind
his
may expose others,’ but,
progress
‘where a traveller
highway
a favored
knows
should
know that
progress
endanger
entering
will
a traveller
highway,
same from restricted
he must exercise
injuring
avoid
reasonable care to
him.’ See also
[, 49
Pruitt,
Isle
Co.
537 46 Marshall, Shedlock v. [186 (1946)]; A. 2d 349 211 DeFontes, Fowler v. Md. 568 [, (1957)]; 207, A. 2d 4 Md. L. Rev. [(1940)].”Id. Md. at 495. negligence
3. The ofRedmiles reviewing plaintiffs this case to determine whether the legally adduced jury’s sufficient evidence to warrant
consideration of the
Redmiles,
obliged
we are
to consider
logical
evidence and all
and reasonable
inferences deducible
light
therefrom in the
most favorable to
plaintiffs.
Gray,
Schwier v.
supra,
631, 636;
277 Md.
Moran Fabergé,
538, 540,
273 Md.
(1975);
There are a number of similarities between the factual that in Kopitzki. situation (1) here In each case the suit passenger of the favored vehicle favored and (2) unfavored drivers. Each case deals with an appeal by the favored driver from a denial of his motion for a directed liability verdict as to his passenger based upon a claimed legally lack of sufficient evidence to raise a observed, testimony 3. As we have there was the time the Dean stopped prior vehicle was in the “might boulevard to the collision have been minute, maybe longer.” point a little There would be a in time when the applicable boulevard law would not vehicle, Judge be to the Dean pointed portion Hammond out for the already Court in the we have cited Crum, supra, from McCann v. 68. Had the vehicle of Dean been sitting appreciable in the time, for an the boulevard law period way applicable would in no and the issues would be similar to those presented Harper Higgs, supra, where an unfavored car crossing stalled in driver, boulevard and was struck *20 the favored Sellers, 508, (1947), Marshall v. parked A. 2d 5 where a truck was right with its left wheels any on the side displaying of the road without lights, warning any flares or light of kind. Viewed in the most signal_ plaintiffs, favorable to the the finding evidence here was sufficient for a of by jury fact the under applicable, which the boulevard law would not be the having Dean out of the highway vehicle sufficiently long been in the a time to take it operation law, clearly the boulevard a conclusion within the Although trial court’s exception instructions. an was taken to the trial judge’s point, instruction on this appeal the Redmiles estate on has point, directing arguments abandoned the its to other issues and other grounds. Therefore, we do not legally rest our determination that there was negligence go sufficient evidence of jury upon Redmiles’ to ground. negligence (3) of the favored driver. issue jury as speed on the of the evidence of excessive There was (4) There in in was evidence favored driver each instance. nearly the favored case that another vehicle abreast of each striking vehicle even was to avoid the unfavored able traveling though speed speed (5) limit. at a rate above avoiding In the driver of the vehicle the accident Kopitzki first noticed the unfavored vehicle at a distance 150-200 In feet. this case Welte noticed the Dean vehicle as he hill, cleared the crest of the 400 feet from scene of accident. out,
As pointed we have heretofore a violation of a statute support damages. does not and of itself an action for The Court said in Bradford, supra, Ford v. “It by many has been held the Court on occasions that statutory regulation violation of a negligence, is evidence of and if injuries such violation causes or contributes to the complained negligence.” Accordingly, of it constitutes if reasonable minds would differ as to whether “such violation injuries complained of,” causes or jury contributes to the a question presented. Therefore, would be we hold that in an against action passenger favored driver passenger action of the of an unfavored driver favored driver if the evidence before the court is sufficient to support speed a conclusion that the of the favored driver was accident, cause of the jury then this becomes a question.4 The favored driver here was not excused duty boulevard exercising rule from his due care for his course, may passenger 4. Oí there be cases in which the is “barred from recovery driver], because of the unfavored [the whether that holding agency on based the law of or on the doctrine of controversial imputed negligence.” Homer, See Slutter v. at 140. such a supra, case the of the favored driver would not abe issue. holding changes Our here is with consistent which have been made in the motor (1957) vehicle code. It should be borne in mind that while Code 66V2, (a) (45) “right Art. way” “[tjhe privilege defined § highway,” Repl. Vol.) immediate use of the 66V2, Code Art. {1957, says right 1-175 now proceed § this term “means the of one vehicle ... vehicle____” preference manner to another lawful added.) (Emphasis change accomplished The when the motor vehicle completely by Chapter code was of the report revised 534 of the Acts of 1970. The Study Warnken Committee to Revision of the Motor Vehicle Laws
passenger. Reasoning minds could differ here as whether the driver was a cause of the of favored conduct question properly Hence, jury the accident. there was presented. holding here to be We do conceive our prior extent, however, any To contrary cases. the that to our contrary any prior subject language in of our cases is to a are interpretation, cases overruled. those 4. The instructions jury instructions as court erred its If the trial by estate, then it would be the Redmiles contended new the necessary case for a trial. Given to remand the Special Appeals no the that there Court conclusion Redmiles, quite the evidence of alleged errors. We did not itself to those properly address remanding lieu of the to the Court now them in case consider Appeals Special for its consideration instructions. reviewing obey jury the admonition instructions we year in Judge Digges Gray, for Court last Schwier supra: Maryland when
“It is well settled that considering adequacy we instructions (iv) proposed “(f]ew (1968) I its substantial states relative to subtitle clarity implement changes made, except were for or to necessary changes in other Its 1-173 is substantive identical made subtitles.” proposed § history present legislative with is derived 1-175. Additional § Report Legislative Assembly from the of 1970where Council General appointed by the Motor Vehicle Laws Committee to Revise Special Legislative Judiciary Committee of the Council said: AND
“MAJOR EXCEPTIONS RECOMMENDATIONS —I Phrases Words and Defined SUBTITLE and, I is definitions “Subtitle section the revised code major changes general, except no were here made expanded have this area Warnken Commission recommendations existing to include various terms which were not in the code. “Essentially, agreed generally the committee with expansion implement significant of the number of definitions to changes contemplated and accommodate the the Warnken recommendations in the Motor Code.” State Vehicle at 908. Id. will not charge whole and as a will consider might, which phrases or sentences words, select out *22 context, appear to be and out of themselves Mueller, misleading Claybome inartful. or (1972); Federal 30, 40-41, A. 2d 443 Jones v. Md. 484-85, 2d 250 A. Md. Co., 252
Paper Bd.
(1969).”
A. from jury judge quoted the trial In his instructions using Vol.) 66V2, (d) Repl. Art. 11-801 (1957,1970 Code § subheading Speed Certain “Decrease of the as title actually appears in Highway.” That which Parts of the ” speed Code is to reduce in certain circumstances. “Drivers Chapter Acts of 1970 heading appears in 534 of the Neither particular provision of Be that adopted the Code. which this may, as it the section reads: vehicle, every
“The driver with the consistent (a), requirements shall drive at an of subsection approaching appropriate, reduced when crossing (other an intersection than an intersection by required which traffic is an official at cross stop) railway grade traffic-control device to or crossing, approaching going when a around curve, approaching crest, when hill when traveling upon any winding roadway, narrow or special respect and when hazard exists with pedestrians or other or traffic reason weather or conditions.” “m[ight]
He further instructed also consider determining whether there on the required, law, Mr. Redmiles that he was under the to slow cresting hill, his when judge automobile trial [the jury] earlier, xo jury] m[ight] read bit had] [the [the — testimony to Mr. is, look Welte’s to determine if [the jury] testimony concerning Mr. Welte’s this believe[d] — aspect case, is, whether or not he did that Mr. Redmiles, did in cresting fact slow down as he was or about to crest the hill.”
The Redmiles estate contends: portions
“These charge imposed duty upon required Redmiles which is not of him the which, upheld, severely law and if impairs the rights of the favored driver. The law is clear that bring favored driver need not slow under car approaching control when an intersection on a *23 boulevard. Does it not follow from that need bring not slow or his car under control when approaching a hill crest?” The attempts estate something to read into the statute which not specifically provides is there. The statute that the requirement speed to approaching reduce “when and crossing an applicable intersection” is not where “cross required traffic is stop an official traffic-control device to provision ----” No similar is written into the statute concerning requirement the to “approaching as a hill crest provisions ....” The approaching statute relative to railway grade crossings, curves, and crests of hills and as to special when “by hazards exist reason highway of weather or apply conditions” to operator where situations the is not permitted to assumption granted make the him in to case of boulevard intersections that no will hazard exist. provisions Most of these deal with obstructions to vision. may The favored driver not assume that the road will be clear in fog, blinding rain, a dense beyond curve, a a beyond the may crest a hill. He properly not assume the an just him, absence presence accident ahead of his have vision. Instances been which obscured from is ve- objects which have fallen off of other foreign known of apply highway. The law made hicles on fenced, highways not In where are a areas state as whole. superhighways, may one not are some of the assume that as upon places In strayed the road. some an animal has might tree even have fallen some circumstances portion highway. no error this There was across the speed light testimony charge in Redmiles vehicle. B. with the judge charge indicated that
The trial give “the refer to or he did not permission of counsel “just law but ... motor vehicle numerical citations” to the law.” He stated jury] the fundamental read to [the speed He prudent is one of the subtitles.” “[reasonable saying, person drive a “No shall quoted the statute as then greater speed is reasonable highway than vehicle on a at existing,” then prudent the circumstances under Repl. Vol.) referring Art. (1957, 1970 apparently to Code 66V2, (a) 11-801 which states: § — person
“(a) prudent speed. No Reasonable speed at shall drive a vehicle greater prudent than is reasonable and under having regard to the actual and conditions and potential existing. every event hazards necessary colliding shall controlled as to avoid any vehicle, person, conveyance with or other on or *24 entering highway compliance legal with duty persons requirements and of all due to use care.” jury:
He later said to the considering negligence
“In of Mr. factors, is, you may Redmiles consider these that if you testimony believe the of Mr. Welte that Mr. proceeding per Redmiles was at 65 to 70 miles hour zone, speed. a 50-mile that that was excessive Now, in mind gave bear that Mr. Welte two speed speed versions of his and the of Mr. Redmiles. So, officer, Corporal Wolfe, the first said he —going he, Welte, going was Mr. was about 50 and that exceeding that, Mr. Redmiles was I figure. don’t recall the exact But on the time second spoke officer, he spoke to the and that is when Faries, he, Welte, Officer he indicated that Mr. was going in speed excess of the limit and case, Redmiles, going decedent driver of this at speed of 65 or 70 miles an hour.” response exceptions noted counsel for the estate, Redmiles jury: the court further instructed the gentlemen, “Ladies and I have one addition to the gave you. I you recall, you instructions As I read to person no shall drive a highway vehicle on a aat greater speed than is prudent reasonable and under existing. the conditions then special “Where no exists, following hazard speeds lawful, any speed shall be but in excess of prima said limits shall be facie evidence that the speed prudent. is not reasonable or operated
“And no
upon any
motor vehicle shall be
highway
speed greater
of the state at a rate of
than
per
highways
miles
hour on
outside of
municipalities.
course,
Of
that does not include dual
highways,
because this
that is
discussed
proceedings
these
highway. So,
is not a dual
55-mile
apply
limit would not
to that. The
testimony and the law would indicate 50 miles is
highway.”
the limit on that
*25
says:
estate
the Redmiles
to
Relative
this
jury
instruct
court should so
“That
this
has
court
astounding in view of the fact
a
find
favored
to
permitted
never
proximate
cause
negligence which was
guilty of
speed
on the basis
the accident
excessive.”
Judge
(1951),
In Miller v. Delaplaine for the Court: observed speed of an that excessive automobile
“It is true of an may of itself be the cause may accident, but some circumstances directly negligence, if it contributes constitute Molohan, 146 Md. the accident. Ottenheimer v.
184, 126 [(1924)1; Faulkner, 163 A. 97 Sun Cab Co. 477, 163 [(1932)]; Fidelity A. 194 Md. United States Baking Co., 172 Guaranty Co. v. Continental & 24, 27, 190 [(1937)]; State, A. 768 Bozman v. Use for 151, 154, [(1939)]. 2d Cronhardt, 177 9 A. Moreover, any person it is a offense for criminal any public operate motor over vehicle recklessly speed greater at rate of the State or having proper, regard to the than is reasonable and highway, width, traffic and use of the so as to property any endanger life or limb of 66V2, Supp. 1947, person. art. at Code 156.” Id. § possible our earlier discussion of See also as a proximate cause of an accident.
Considering whole, charge find as a we no error.
c. Appellee objects court’s instruction: *26 every driver
“You are further instructed that upon highway may proceed blindly given not on a course, required keep proper but is lookout for obstacles, pedestrians path or vehicles his and is keep required to his motor vehicle under control so colliding objects, pedestrians as to avoid with highway.” vehicles on the says “summary rights
He that his earlier of the and duties of the favored driver ... makes it obvious that this instruction correct, was incorrect. Were it the boulevard law would have meaning Moreover, no portion charge whatsoever. this of the told the if that Redmiles collided with Dean necessarily negligent because it followed from the fact of the collision that did Redmiles not have his car in control.” already pointed
We have out the fact an individual is a favored driver does not insulate him from liability passengers negligence. his for his Schwier, Pinchbeck, all contributory hold that Racine negligence may of a favored driver recovery bar him from from speaking an unfavored contributory driver. negligence this Court has said that one who either did not look when he should have looked or who did not see when he guilty did contributory look is negligence as a matter of law. Brown, 463, 472, Henderson v. 2dA. (1957). We have contributory negligence further said that is neglect duty imposed upon all men to observe ordinary care safety, doing for their own something person that a ordinary prudence do, would not or the something failure to do person ordinary that a prudence do, would under the circumstances. Co., Potts Armour & 39 A. 2d (1944). If the failure of an individual to use given his preservation God faculties for the safety of his own is such as will him bar from recovery brought in a by him, suit certainly follows that accident proximate cause of an to be if found failure such recovery from a favored permit negligence as would such duty of due care. he owed a whom passenger to whole, we find no error aas Considering the instructions instruction. this D. suggests:
Appellee etc., illustrating, listing, permit “Time does not charge, court its errors of the lower the other ..., against Dean directing verdict e.g., not ..., by unduly him giving favorable to instructions legally instructing jury that there was no due care on the of inattention or sufficient evidence prejudicial Redmiles, giving an instruction *27 stalled, (if ‘then Mr. appellant Dean car was to the privileged and collide was not to come Redmiles automobile.’) into his charge of say that the
“Suffice it to and to submit replete jury was with errors the court to the so appellee did have a fair trial. omissions that Indeed, were so numerous the errors and omissions jury against appellee was and basic that a verdict inevitable.”
The complaints that a verdict should have been directed unduly against given Dean and that instructions were favorable to him are without merit since if there were error by jury’s Dean. have it was cured verdict We already remaining in the dealt with the two contentions first by previous Any paragraph claims relative to our discussion. any by other errors intended to be covered the second paragraph specifically forth in met and not set the brief are by predecessors statement of our State Comm Roads 24, 178 Halle, (1962): A. 2d 319
“Surely upon Court, merely it is not this incumbent point being objectionable because a is mentioned as point party’s at some brief, to scan the entire record and if any ascertain there ground, grounds, objectionable sustain feature suggested.” Id. at 32.
Considering charge whole, as a we find Thus, no error. judgments must be reinstated.
Judgment Special the Court of Appeals reversed and case remanded to that court for passage affirming an order judgments the Circuit Court George’s Prince for County; appellees pay costs.
Murphy, J., dissenting: C.
The Court holds in this case that in an action passenger against a favored driver “if the evidence before the Court is support sufficient to speed a conclusion that the favored driver was a accident, cause of the then jury this question.” becomes a The Court concludes that the evidence that exceeding posted speed Redmiles was limit per 20 miles hour was from evidence which, more, without properly could conclude that such excessive contributing was a cause respectfully, accident. Most I dissent.
I agree, course, that the boulevard law does not relieve *28 the favored duty driver from the degree to observe that of ordinary care for his safety, own passenger, and that of his which expects one normally prudent of a driver under the words, circumstances. other is well it settled boulevard law does not insulate a favored driver from liability passenger to his negligence for his which constitutes proximate a cause of an year Court, accident. Last in Kopitzki Boyd, v. 491, 495, 2d A. reaffirmed the well-established rule of our cases that “while the ordinarily will driver not be speed of the favored excessive accident,... if there contributing cause considered a find that the favored jury could from which a is evidence inattentive, for his inattention the that but avoided, the favored driver’s have been accident could The “inattention” jury issue ....” becomes in boulevard cases has drivers applicable doctrine to favored of inattention or lack recognized evidence of always that the proximate care, legally to constitute due sufficient on “nice calculations accident, an must be based cause of 487, 495, Ellis, speed, or distance.” Brown of time 24, 36, 169 A. (1964); Higgs, 225 Md. Harper 2d 204 A. premise holding in its (1961). does not 2d 661 That the Court manifestly, plain; doctrine is upon the inattention this case adduced at the trial would so the evidence to have done on heights doctrine new to that have been to accord dimensions, the favored spelling the demise of different the boulevard. of the driver on status change today is or abandon the does
What the Court speed long-standing ordinarily will not be rule that excessive proximate cause of an accident boulevard considered a negligence is that only evidence Redmiles’ cases. Since the speed, are no circumstances excessive and there making anything an more than with it associated speed, ordinary, garden variety case excessive the rule case, that, ordinary majority the most fashioned contributing speed constitute a cause of an excessive can carry accident sufficient itself to case scrap driver. To so hold is to favored eminently speed, rule that nice calculations of time sensible will distance not be considered in cases boulevard assessing virtually an cause of accident. That involving all evidence of excessive cases regardless driver, circumstances, the favored will become practical decision, jury questions is result of the Court’s consequence I deem unwise which both and unfortunate. Judge opinion Special I think Moore's for the Court Appeals I in this caso was correct and affirm the would judgment.