Jubb v. FordJubb v. Ford
- Reporters:
- , ,
- Before:
- Hammond
delivered the opinion of the Court.
In this drаma of colliding motor vehicles the time was early afternoon on a rainy January day and the scene, the southbound roadway of the dual Ritchie Highway at its intersection with Hamburg Street near Pasadena in Anne Arundel County. Stoрped to discharge a passenger in the slow lane was a small bus or carry-all (painted yellow, and bearing the words “School Bus” on its upper rear but not equipped with
The drama began when Salzman, who was driving to Annapolis at forty or forty-five miles an hour, saw the Jubb carry-all some eight hundred to a thousand feet ahead of him in the slow lane and noticed that he was gaining on it. A look in the rear view mirror disclosed nothing to prevent him from moving over into the fast lane, and he did so, intending to pass the carry-all. Once in the fast lane, he noticed the vehicle ahead had stoppеd and at the same time “it just registered on” him that it was a school bus. After he saw this, he started to slow down and make “an ordinary stop” with his foot brake. When he was about six feet to the rear of the carry-all in the left-hand lane, at а point when he would have come to a complete stop within another two or three feet, he said, he was struck from the rear without warning.
The driver of the tractor-trailer could not be found to testify at the trial. By agreement his statement in the traffic
The evidence of Ford and the driver of the school bus was to the effect that the bus had come to a complete stop and had been standing long enough for the driver to open the door and to permit the child who was getting off to arise from her seat in the rear and walk halfway through the bus before it was struck.
J‘ubb argues that his vehicle was nоt required to have flashing red lights and, in any event, their absence was not a proximate cause of the accident.
Code (1957), Art.
66}4,
Sec. 255, defines a school bus as a motor vehicle “having a seating capacity of ten (10) or mоre persons and transporting children, students, or teachers to and from schools * * Section 257 provides that every school bus, whether purchased before or after 1949, shall have stop signals visible both to the front and reаr and in addition be equipped with two flashing type “red stop lights” on top in the front and on top in the rear, which are to be lighted and operating “at all times” while the bus is loading or discharging school children but at no other time. Seсtion 259 requires drivers of vehicles on highways outside incorporated towns of five thousand or more people, upon approaching or overtaking a school bus stopped on the highway for the purpose of receiving or discharging any school child, to “come to a full stop at least ten (10) feet from such school bus”
Section 260 provides thаt the stop required of drivers by Sec. 259 need not be made unless “the school bus shall be equipped with the school bus signs and stop signals and painted in the color scheme as prescribed in this article * *
We think it clear that the bus wаs not a school bus within the definition of the statute. There was no credible or probative evidence that its carrying capacity was greater than eight, that is, seven children and the driver. Unless it were a school bus (or other authorized vehicle), it would violate the law if it used flashing red signals. Code (1957), Art. 66)4, Sec. 287 (b), (c).
Similarly, if it was not a school bus, it would violate Code (1957), Art. 66)4, Sec. 244, if it stopped “upon the paved or improved or main-travelled part of the highwаy when it is practical to stop, park, or so leave such vehicle off such part of said highway * * *”.
Jubb gives as one reason why the absence of flashing red lights was not a proximate or contributing cause of the acсident the claim that Salzman was not obligated to stop behind the bus under Sec. 260 of Art. 66)4 since it was not equipped with “stop signals * * * as prescribed in this article * *
We agree that Salzman was not legally bound to stop. We read the words “stop signals” in Sec. 260 as including the “flashing red stop lights” referred to in Sec. 257 as well as the “stop signals visible to front and rear,” also specified in that section. It does not follow that because Salzman was not legally required to stop, a jury could not find that his doing so, when it first “registered” on him that the Jubb carryall was a school bus, was not a natural and probable consequence, reasonably to have been anticipated, of Jubb’s having painted thе bus to resemble a statutory school bus and having instructed the driver, as he had, always to stop it on the roadway. The duty to stop for a school bus is “as positive and inflexible a duty as that of obeying the boulevard law,” Chackness v. Board of Education of Harford County, 209 Md. 88, 95-96, and a prudеnt driver instinctively would stop if he was caused to believe a vehicle ahead was a school bus.
We think the evidence and the inferences in the case under consideration permit a finding of negligence on the part of Jubb that was a proximate and contributing cause of the injury sued for. The partial imitation of a school bus, without making the imitation complete by the addition of flashing red lights, and the stopping of the pretender on the slow lane of the roadway were calculated to produce just the results that occurred—to cause one motorist to stop late or unexpectedly in the remaining lane of the roadway because of his sudden impression that a school bus was receiving or discharging children, and to cause a following motorist to be misled by the presence of a yellow body and the absence of flashing red lights into believing, until too late to stop, that the standing vehicle was a State Roads truck, which both the lеad car and he could, and would, pass freely.
This view of the case disposes of Jubb’s more detailed contention that any causal connection between any negligence of his and the injury was broken by the interposition of an independent cause, that is, the negligence of East Coast.
Our view is that if a jury determined Jubb to have been negligent, his acts and omissions induced the negligent acts and omissions of East Coast and the two would have concurred in causing the injury. An act is negligent if the actor should realize that it is likely to affect the conduct of another or a third person in such a manner as to create an unreasonable risk to the other.
Restatement, Torts,
Sec. 303;
Pennsyl
Jubb urges that there is as definite a failure here to show that he contributed to the happening of the accident as there was as to the defendants in Bloom v. Good Humor Ice Cream Co., 179 Md. 384, and Maggitti v. Cloverland Farms Dairy, 201 Md. 528, in both of which this Court rejected claims that double parked vehicles had contributеd to the accident, under the views that (a) the parkings were to be regarded as passive acts, and (b) the accidents were caused by independent intervening acts which were neither induced by, nor foreseeablе as the consequences of, the irregular parkings. We think that in the case before us there is more than the passive negligence, if that, found in Bloom and Maggitti. The connection between Jubb’s acts and omissions and the injury was stronger and morе direct, and what occurred here was far more likely to have occurred as a result of what he did and did not do, and so to have been anticipated, than in those cases. On the facts, the case before us is more nearly akin to the cases distinguished by Judge Henderson for the Court in Maggitti at page 533 of 201 Md. Compare also the factual situation in Bracy v. Lund, 84 P. 2d 670 (Wash.), relied on in Maggitti, with that in Caylor v. B. C. Motor Transport, Ltd., 71 P. 2d 162 (Wash.), which was distinguished by the Washington court in the Bracy case. See also Holler v. Lowery, 175 Md. 149, and Collins v. Risner, 269 F. 2d 654 (4th Cir.).
The trial court’s charge was faulty in that it told the jury the Jubb vehicle was a school bus as a matter of law and, as such, entitled to stop on the highway, and added that the jury must determine whether the failure to have flashing red lights on the school bus was a proximate cause of the accidеnt. Jubb took timely and specific exceptions to the charge. Under our holdings in the case the instructions were incorrect. It is not entirely clear that the error really was prejudicial, or that the ultimate question, to bе decided by the jury would be essentially different. But we feel the case must be remanded for trial on the issue of whether Jubb was negligent in creating a
Judgment against appellant, Eckhart Jubb,reversed, with costs, and case remanded for further proceedings.