46 A.2d 349 | Md. | 1946
On April 20, 1944, about 7 A.M., Joseph T. Shedlock was on his way from Baltimore to Sparrows Point, driving his own automobile in which was a passenger, Lee A. Miller, who was associated with him in his work. He proceeded along Monument Street, a public highway in the City of Baltimore, and entered the intersection of that street with the Philadelphia Road, which was a duly marked and established boulevard or arterial highway. Monument Street enters the Philadelphia Road at an acute angle, and Shedlock was driving southeast on Monument Street and intended to go east on the Philadelphia *222 Road. While he was in the intersection, a tractor-trailer combination, belonging to J. Norman Marshall, trading as Marshall's Express Company, and driven by the latter's employee, and traveling west on Philadelphia Road, entered the intersection, and there was a collision between the two. The point of impact, which was agreed upon by all parties, was 28 feet 8 inches north of the south curve of the Philadelphia Road, about 124 feet east of the point where the rounded curb on the southwest side of Monument Street meets the north curb of the Philadelphia Road, and about 125 feet west of the overhead railroad bridge over the Philadelphia Road. The paved surface of the roadway, across the intersection, at the point of impact, is 61 feet 4 inches. The Philadelphia Road, west of the intersection, is 48 feet 4 inches wide, and east of the intersection, where it goes under the railroad bridge, is 34 feet 9 inches. As a result of the collision, Shedlock and Miller were badly injured, Shedlock's automobile was wrecked, and the tractor-trailer was upset and badly damaged.
On October 5, 1944, Shedlock brought suit against Marshall in the Baltimore City Court, for personal injuries and property damage. On October 16, 1944 Marshall brought suit against Shedlock in the Baltimore City Court for damages to the tractor-trailer. On November 8, 1944, Miller brought suit against Marshall in the Superior Court of Baltimore City for personal injuries. Marshall, after leave granted, filed a third party complaint in this last suit against Shedlock as third party defendant under the provision of the Joint Tortfeasors Act, Flack's Annotated Code, 1943 Supplement, Article 50, § 27(a). Miller, the original plaintiff, did not amend his pleadings to assert the claim against Shedlock as required by the statute, but his failure to do this cannot prejudice Marshall's right to have Shedlock brought in. No question of Miller's failure to declare against Shedlock was raised by anyone, and, as the parties all went to *223 trial on the pleadings as filed, any defects, in this respect, were waived.
General issue pleas were filed, in all these cases by all the parties defendant, and on May 14, 1945, Marshall filed his petition in the Baltimore City Court asking that the two cases pending therein, and the Superior Court case be consolidated for trial in pursuance to Rule 2, Section III, title "Trials" of Part Three of the General Rules of Practice and Procedure. After an order nisi had been passed, and after the hearing of objections made by Shedlock and Miller, it was ordered by the Court on May 18, 1945, that there should be a joint hearing on all the matters in issue in all the three cases. As the objections pressed here, if well founded, would render nugatory and void all the subsequent proceedings, they will be considered first.
It is contended by Shedlock and Miller that the Court had no authority to order a joint trial of cases originating in the Baltimore City Court, and in the Superior Court, as each of these courts has concurrent jurisdiction in civil common law cases such as those consolidated. Article 4, Part IV, Secs. 27 and 28 of the Constitution are cited as authority for the contention that the provisions of Rule 2 of this Court and their application in the present case are unconstitutional. Rule 2, as adopted by this Court on January 30, 1941, provides that when actions involving a common question of law or fact or a common subject matter are pending before several of the courts of law of Baltimore City, any of such courts in Baltimore City may order a joint hearing or trial of any or all of the matters of issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings there in as may tend to avoid unnecessary costs and delay. This rule in common with the other rules, similarly adopted, was authorized by Chapter
Chapter
During the course of the testimony a witness for Marshall, upon his return to the witness stand after recess, was asked by counsel for Shedlock, upon cross examination, with whom he had discussed the case during the intermission. Counsel for Marshall thereupon said "You saw him talking with me on the steps." And the witness said "I wasn't talking about this accident." He was then asked "What were you talking about?" The Court refused to require him to answer this question over objection. While counsel should avoid talking to his witness while he is still on the stand, even though it is during the luncheon recess, and the conversation is not about the case, *225 nevertheless, we do not think it is within the rights of counsel for the other side to find out what the conversation was about. He had the right to inquire whether he was talking about the case or any phase of it, but not to ask the general question he did. It is unfortunate that such instances should occur because, they lead to suspicion which is often wholly unjustified, but we do not feel that any error was committed by the Court in its ruling on the question.
The Court, when it directed the joint trial of the cases, applied the authority given by Rule 2 to regulate the proceedings by ordering that the arguments at the conclusion of the case should follow the order in which the cases were filed in Court. As a result of this, Shedlock's counsel made the first argument, Marshall's the second, and Miller's the third. Then Shedlock's counsel was given only five minutes for rebuttal, while he was allowed 30 minutes for his first closing argument. This is within the discretion of the trial court and his exercise of such discretion will not be disturbed, unless it is plainly arbitrary, and unless some injury is shown to have been done to the complaining party. Where cases are consolidated it is impossible to follow the usual rules as to opening and closing, and, therefore, the trial judge has to make new ones for each case. We are unable to see that he committed any error in this respect in the cases before us.
At the conclusion of the trial the jury brought in four separate verdicts. The first was a verdict in the Baltimore City Court in the case of Shedlock v. Marshall. This verdict was for the defendant, Marshall, and from the judgment entered on it for Marshall for costs, Shedlock appealed. This appeal constitutes No. 101 in this Court. The second verdict was also in the Baltimore City Court in the case of Marshall v. Shedlock and was in favor of Marshall for $1,492. From the judgment on this verdict Shedlock also appealed, and this appeal is No. 102 here. The third verdict was in the Superior Court of Baltimore City, in the case of Miller v. Marshall, and was in favor of Marshall. From the judgment on that verdict for Marshall *226 for costs, Miller appealed, and that appeal is No. 103 here. The fourth verdict was in the same case, in favor of Miller against the third party defendant Shedlock, for $1,000, and, from the judgment on that verdict, Shedlock appealed, this appeal being No. 104 here.
We have already discussed the preliminary questions involved in the consolidation, and the one ruling on evidence, which was objected to. The other rulings objected to are on the prayers granted and refused by the Court. Some of these prayers were offered generally, but Marshall designated his prayers for the particular case in which they were offered. It may be assumed that by so doing he avoided any confusion of the jury except that possibly incident to the trial of four cases at one time. Such possible confusion, however, is overweighed, in the opinion of most courts by the advantage of having all questions relating to a single transaction disposed of in one case at one time, with the consequent saving of time of the court and of the witnesses, and the saving of the expenses of litigants. It does not appear that any misunderstanding occurred in the present case by reason of the fact that different prayers were offered in different cases.
Before discussing the questions involving the prayers, the facts should be stated in more detail. As we have previously said, there is no dispute on the exact location of the point of contact, but there is a very wide difference in the stories of the respective actors and their witnesses as to how the vehicles arrived at this point. Shedlock and Miller state that Shedlock's car was driven around the curb at the west end of the intersection of the two streets, stopped before it reached the line of the Philadelphia Road, and waited five or six minutes for traffic to go by, so that it could safely proceed. Shedlock then drove into what he claims was the line of the Philadelphia Road, and proceeded to about the point of contact, when Marshall's truck came out from a fog bank in the tunnel under the bridge, running on the wrong side of the road and proceeding very fast. Shedlock said he had only time to turn his car a little to try to run over the curb before *227 Marshall hit him on the left side. It might here be noted that while Shedlock claims he was running in the Philadelphia Road, he was at least four feet four inches over on the wrong side of that road, as extended from its curb lines before it entered the intersection from the west, so that he had not yet gotten to the right hand side of the Philadelphia Road. The testimony of Marshall's driver and of the driver of another truck which was following him, was that Shedlock's car came straight down Monument Street and slowed at the intersection, but did not stop. Marshall's driver saw it from 250 to 300 feet away, but not thinking that it was going to attempt to cross, he continued at the same speed he was going, which he estimated at about 25 miles an hour. Shedlock, he says, suddenly drove in front of him, and in trying to get around him, struck the left front of his tractor which broke his braking apparatus and pulled him around in such a way that he was unable to guide his tractor, and he went over the south curb of the Philadelphia Road and turned over. Shedlock's car also went over the curb, but remained upright.
The ruling of the trial court on the prayers which we are first urged to reverse is the granting of Marshall's 3rd prayer offered in the case of Shedlock v. Marshall. This prayer involves the duties and responsibilities of drivers entering a favored highway. Before considering it, a review of the appropriate statutes will be made.
Flack's Annotated Code, 1943 Supp., Art. 66 1/2, § 187, provides (a) "The State Roads Commission with reference to State and county highways, and local authorities with reference to other highways under their jurisdiction may designate through highways and erect stop signs at specified entrances thereto * * *," and (c) "Every driver of a vehicle shall come to a full stop at such sign or at a clearly marked stop line before entering an intersection and yield the right of way to vehicles approaching on the intersecting highway except when directed to proceed by a peace officer or traffic control signal." *228
Sec. 178 provides (a) "The driver of a vehicle shall come to a full stop as required by this Article at the entrance to a through highway and shall yield the right of way to other vehicles approaching on said through highway."
Sec. 2, Subsec. (20) defines intersection as follows: "The area embraced within the prolongation or connection of the lateral curb lines, or if none, the lateral boundary lines of the roadways of two highways which join one another at, or approximately at right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict."
Sec. 2, Subsec. (59) defines through highways as "Every highway or portion thereof at the entrances to which vehicular traffic from intersecting highways is required to stop and yield right of way before entering or crossing the same and when stop signs are erected as provided in this Article."
The accident in the case before us was at the intersection of the Philadelphia Road, a through highway established under the provisions of the statute, and Monument Street, which intersected it at an acute angle. The intersection of these two streets is therefore not that area embraced within lateral boundary lines of the roadways of the two highways, because that definition applies only to highways which join at, or approximately at, right angles. The intersection in the case before us is that loosely defined at the end of Subsection (20) as "the area within which vehicles traveling upon different highways joining at any other angle" (than a right angle) "may come in conflict."
The provisions of the Maryland statute are practically the same as the Uniform Act Regulating Traffic on Highways. See 11U.L.A., page 46, Paragraph 48. The Uniform Act provides for the erection of stop signs and states that when ever such signs have been erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto, except where directed to proceed by an officer or by a traffic control signal. The defintion of intersection *229 in the Uniform Act is different. The term "intersection" as used in the uniform Act is the same, no matter at what angle the highways join or cross each other. In all cases, the intersection is the area within the prolongation or connection of the lateral curb lines or, if none, then of the lateral boundary lines. The provision in the Maryland Act, making a special definition for the intersection of highways which join at an angle other than a right angle is not found in the Uniform Act. It appears from this circumstance that the Maryland legislature intended to make a clear distinction between right angle intersections and intersections occurring from roads meeting at other angles.
The provisions of Art. 66 1/2, § 187, were first placed in the statute law of this State by the Act of 1929, Chap. 224, codified in Flack's 1935 Supp. to the Annotated Code, Art. 56, Sec. 209. Similar provisions were continued in 1939, Chapters 377 and 382 of the Acts of that year, codified in Flack's Annotated Code of 1939, Art. 56, § 235. The present provisions were enacted in the form in which we have quoted them by the Act of 1943, Chap. 1007. The definition of intersection, which must now be read in connection with the other section, and which is contained, as we have shown, in Art. 66 1/2, § 2, Subsec. 20, was first enacted in 1943 by Chap. 1007 and became effective on June 1, 1943. All of the cases in this Court which have considered the duty of vehicles entering a favored highway from an unfavored highway were decided prior to the provisions of this statute defining intersection.
In the case of Shedlock v. Marshall, No. 101 here, the court granted the defendant's third prayer which quoted the statutory definition of intersection and told the jury that if they should find that the location of the accident "is within the area within which vehicles traveling upon Philadelphia Road and Monument Street, in the direction in which the respective automobiles are being driven, may come in conflict with one another," then "it became the duty of the plaintiff to yield the right-of-way to the automobile *230 of the defendant traveling on the boulevard by permitting it to proceed without interruption and that this duty on the part of the plaintiff persisted throughout his passage across the favored way; and if the jury should find that the plaintiff failed in this duty, their verdict must be for the defendant."
This prayer is contrasted with defendant's prayer No. 4, granted in the case of Miller v. Marshall, which is No. 103 here. That was the passenger's case, and in that prayer, after reciting the duty of Shedlock to yield the right-of-way and continue to yield it throughout the area of the intersection, the jury was instructed that, if they found that Shedlock failed to yield the right-of-way, "and that said failure to yield the right-of-way was the proximate cause of the accident complained of," then their verdict should be for the defendant.
The case of Miller, the passenger, when tried, was against both Shedlock and Marshall, and the insertion of the proximate cause rule in that prayer was to relieve Marshall, in case the jury found that Shedlock's action was the proximate cause of the accident. In the third prayer in the other case, the question was not the negligence of either Shedlock or Marshall as affecting a third party, but was how Shedlock's negligence, if found, affected his suit against Marshall. Shedlock objects to this prayer because it states, in effect, that his failure to give the-right-of-way made him guilty of negligence, and bars him from a recovery. He claims that such negligence must, in addition, be found to be the proximate cause of the accident. The same question is raised by Marshall's Prayer E, filed in the case of Shedlock against Marshall (101 here). This is a contributory negligence prayer, decision on it was served, and as the jury found for Marshall in all of the cases, no appeal was taken by him. If, however, our conclusion should show that this prayer should have been granted, then, as the finding of the jury was what the prayer asked the court to direct the jury to find, the Shedlock cases against Marshall would be affirmed. Texas Co. v.Washington B. A. Electric R. Co., *231
In the case of Carlin v. Worthington,
In an earlier case, Blinder v. Monaghan,
In Carlin v. Worthington, supra, the Court said that these quotations from the earlier case of Blinder v. Monaghan were "this court's expression of the meaning and effect of a `stop' sign, on a secondary highway" but were not an instruction to a jury.
In the case of Greenfeld v. Hook,
Without detailing the facts of that case, or the nature of the instructions considered, it is sufficient to say here that what the Court said it was considering was "the relative rights of travelers on a highway designated and appropriately marked by the proper authorities, as a `boulevard,' `stop street,' or `arterial highway,' and of travelers entering such a highway from intersecting roads and streets, in the light of the statute as construed in two cases recently decided by this court"; that is,Carlin v. Worthington, supra, and Blinder v. Monaghan, supra. The Court discussed the two duties of stopping and of yielding the right-of-way and said that they were corelated and co-ordinated and that the safety of the traveling public demanded that the rules defining the relative rights of travelers be clear, unmistakable and definite. The Court discussed the two previous cases and other decisions *233 at some length and said finally: "Without further comment it is the opinion of this court that so much of Code (Supp. 1935), Art. 56, § 209, as applies to the facts of this case is mandatory, that it is the positive and imperative duty of a person driving an automobile over an unfavored highway when he approaches an intersecting highway lawfully designated as a `boulevard' or `stop street,' to stop before entering the intersection, and having stopped, to exercise reasonable care and diligence to discover whether traffic thereon is approaching the intersection, and, having entered the intersection to yield the right-of-way to such traffic, by permitting it to proceed without interruption, and that that duty persists throughout his passage across the favored way."
In the case of Pegelow v. Johnson,
This case was followed by the case of Madge v. Fabrizio,
The latest case is Rinehart v. Risling,
What the statutes, as interpreted by these decisions, mean is that a driver who enters, from an unfavored highway, an intersection with a favored boulevard or arterial highway where there are no traffic controls must yield the right of way to all the traffic he finds there during the entire time he is there. If he does not, and a collision results, he is at fault and cannot recover against the other driver unless the doctrine of last clear chance enters the case. So far as his rights as a plaintiff are concerned, it makes no difference what the other party does in the first instance. He is negligent because he has not yielded the road. Being negligent himself, his action is barred. But when he is made a defendant in an action for damages resulting from the collision, he can always show that the other party was also guilty of negligent contributing to the accident, and if he succeeds in this, no verdict can be obtained against him. Then both parties are negligent.
There is general agreement between the parties of the cases before us on the spot where the accident occurred, although there is a sharp disagreement as to the course of the two vehicles before they reached the point of contact. *236 This point of contact was within the intersection as defined by the statute, and as Shedlock failed to give the right-of-way to Marshall within this intersection, he was clearly negligent and therefore, could not recover against Marshall, unless the latter had a chance to avoid the accident after he saw or should have seen it was imminent.
Shedlock's second prayer, which was refused, would have submitted to the jury the right to find that, even if he were negligent, he would be entitled to a verdict if the jury found that Marshall could have avoided the accident by the exercise of ordinary care after he saw that Shedlock was entering an intersection without stopping, and was failing to give him the right-of-way, and was in his path and in danger of being struck. Shedlock's testimony was that he stopped at the favored highway, saw nothing, and went into the Philadelphia Road, heading east, at the rate of 22 miles an hour, when Marshall's truck came out from under the bridge, through a fog, at a high rate of speed and struck him. There is nothing in this evidence, if believed by the jury, which would indicate in the slightest degree that Marshall had an opportunity to stop after he saw Shedlock. Marshall's testimony was that he saw Shedlock some distance away, coming down Monument Street toward the intersection, that he, Marshall, was on the right side of Philadelphia Road, that he saw Shedlock slow down, that he had no reason to suspect that Shedlock was going to enter the intersection without stopping, but that the latter did suddenly cut around in front of him and that he had no opportunity to stop before the impact. There is, in his version of the case, no evidence justifying the application of the last clear chance doctrine. Much is made by Shedlock of the fact that Marshall's driver testified he saw Shedlock 250 or 300 feet away, but he fails to attach importance to the fact that this was before Shedlock entered the intersection, and at a time when Marshall's driver had no reason to suspect that Shedlock was going to leave his place of safety and run into danger.
We do not find any evidence to justify the last clear chance doctrine in this case, and we think the plaintiff's *237 second prayer was properly rejected. The duty of Marshall was set out negatively in Marshall's first prayer which said that if his driver, when he saw Shedlock's automobile entering and crossing the intersection, was so close that he could not, by use of ordinary care, avoid the collision, then the verdict must be for Marshall. This was as much, if not more, than Shedlock was entitled to under the circumstances, when there was no evidence that Marshall could have avoided the collision after he saw that it was about to occur.
The defendant's third prayer was a proper statement of the law as applied to this case if the case was to be submitted to the jury. We think, however, that Marshall's E prayer should have been granted and the jury instructed in the case of Shedlock against him, 101 here, to return a verdict for the defendant. Since the jury found for the defendant in this case, the judgment in it will be affirmed.
In the case of Marshall v. Shedlock (No. 102 here), Shedlock's complaint is that the jury was told by the court in its oral charge that their verdicts must be consistent, and that as Marshall's prayer 3, already discussed, erroneously stated the law of the case, the jury, having found for Marshall as defendant, had to find for him as plaintiff. This is a nonsequitur, but Shedlock's objection may be simply disposed of here by the fact that we have already held that Marshall's 3rd prayer was properly granted. The judgment in No. 102 will therefore be affirmed.
In the Miller case, which was against both Shedlock and Marshall, the granted fourth prayer correctly requested the jury to find that Shedlock's failure to yield the right-of-way was the proximate cause of the accident before finding a verdict for Marshall. Miller, of course, could not be bound by Shedlock's contributory negligence, and if Shedlock and Marshall were both negligent, and the negligence of both contributed to the accident he might have gotten a verdict against both. Shedlock's negligence had to be the proximate cause of the accident *238 before Marshall was absolved. There was no error in the rulings on the prayers offered in this case, and the judgments in both No. 103 and No. 104 will be affirmed.
Judgment in No. 101 affirmed, with costs.
Judgment in No. 102 affirmed, with costs.
Judgment in No. 103 affirmed, with costs.
Judgment in No. 104 affirmed, with costs.