138 A. 12 | Md. | 1927
The suit in this case was brought by the State of Maryland, for the use of the State Accident Fund and Louisa R. Cramblitt, against Joseph Sudbrook, the appellant, to recover the damages suffered by Louisa R. Cramblitt in the death of her son, Arthur E. Cramblitt, who was killed by the collision of his motorcycle with the motor truck of the appellant. At the time of his death the son was in the performance of his duty as a member of the State Police Force, and his mother was partly dependent upon him, and so was allowed compensation by the State Industrial Accident Commission. The State Accident Fund was the insurer of the Commissioner of Motor Vehicles against liability under the Workmen's Compensation Act, and the suit was brought upon the theory that the death of the police officer was caused under circumstances creating a legal liability in the appellant to pay damages, which could be recovered by the insurance carrier for its benefit to the extent of the compensation paid or awarded, and of any payments made for medical or surgical expenses or for any other purposes enumerated in section 37 of the article, and the residue, after the deduction of these amounts and the expenses and costs of action incurred by the State Accident Fund, for the benefit of the dead officer's partly dependent mother. Code, art. 101, sec. 58. A judgment was obtained against appellant for five thousand dollars, which was largely in excess of the payments for which the State Accident Fund was responsible.
The accident occurred in the early afternoon of October 1st, 1925, and the officer died on the same day without regaining consciousness. The scene of the accident was on the Washington Boulevard, where it is entered by Railroad Avenue. Washington Boulevard runs about north and south, and is twenty feet in width, with a macadam surface sixteen *196
feet wide and rock shoulders projecting two feet on either side of the edge of the roadway. Railroad Avenue extends at right angles from Washington Boulevard eastward one block to Elk Ridge and is twenty-one or twenty-two feet in width, with a macadam roadbed of twelve or thirteen feet wide between four and one-half feet of traveled hard dirt roadway. The appellant's motor truck, with a capacity of five tons, was loaded with sand and gravel and was being driven westwardly along Railroad Avenue for the purpose of turning to the left at the end of the avenue at Washington Boulevard and then traveling south along the boulevard. The motor truck was in charge of an experienced driver and was moving at not more than four or five miles an hour at the time of the collision. The only negligence with which the driver could be charged was that, in making the left turn to go south upon the boulevard from Railroad Avenue at the intersection of the two public highways, he did not pass to the right of the center of such intersection as required by the statutory rules of the road. Code, art. 56, sec. 209; Buckey v. White,
There is a barn on the south side of Railroad Avenue about seventy-five feet from the eastern side of Washington Boulevard, and, in the right angle formed by the intersection of the eastern margin of Washington Boulevard with the southern line of Railroad Avenue, there is a vacant field, so that, from a point seventy-five or seventy-eight feet from the *197 eastern edge of the boulevard, there is an unobstructed view to the south of the boulevard to an overhead railroad bridge, which crosses the boulevard one hundred and fifty feet from the intersection of the center lines of Railroad Avenue and of the boulevard. The bridge and its approaches shut out any greater view until a point twelve or thirteen feet from the boulevard is reached, where, by looking through the opening under the bridge, the boulevard is visible for three hundred and seventy-five feet from the intersection mentioned. The driver of the loaded motor truck was moving at the rate of four or five miles an hour, and he looked in both directions when he got to the corner, and did not see anything approaching on his left, but he did not continue to look to the left, but looked to his right, as was his duty under the law of the road, when, suddenly, he heard the noise of the motor and immediately the crash of the impact. The motorcycle hit the motor truck on the left side at the cab, which was four feet from the front of the truck, and so great was the force of the collision that the driver of the truck was struck by either the rider or the motorcycle, and knocked from the steering wheel to the other side of the seat, so stunned that he lost recollection of what immediately happened. The truck, without guidance, drifted across the road and crashed into a fence, where it stopped. The motorcyclist was killed and he and his motorcycle, still running, were found lying on the right side of the boulevard.
There is some evidence that the cause of the great speed at which the officer was traveling at the time of the accident was attributable to an effort to overtake and arrest the driver of a speeding automobile. There is no question that he was running at a great speed. Two eye-witnesses of the fatality, whose attention to the officer was attracted by what they described as his terrific speed, passed him in their automobile about at the overhead railway bridge and, in the expectation that he would crash into some traveler on the highway, made a comment on his recklessness, looked back, and the accident happened. Almost in the length of two short sentences *198 and the turn of their heads, the motorcycle had covered over one hundred and fifty feet. This great speed is graphically portrayed by the marks made by the motorcycle on the macadam road. The motorcycle was running on the right of the highway about eight inches from the eastern edge of the metaled way at the time the officer first applied his brakes. The length of the mark thus made on the roadbed was one hundred and ten feet. At first it was broken by gaps of about three feet, but, twenty feet from the point of the accident, it became a continuous line until the front of the motorcycle hit the truck. The crash of the collision was heard by one of appellee's witnesses about two blocks away and by another one hundred yards. The smashed motorcycle was thrown on the road, still running, with the rim of its front wheel driven in at an acute angle, the wheel and tire twisted, the forks and handlebars considerably bent, and the equipment carried on the front mashed and broken. The only estimate given of the speed at which the motorcycle was moving was by the driver of the automobile, who passed the officer about one hundred and fifty feet from the point of the accident, and she testified: "I could not tell that the man on the motorcycle was an officer, he had his head down, and had goggles on. I was going between twenty and twenty-five miles an hour, and he was going twice or three times as fast as I was."
The physical results illustrate the violence of the impact, and, with the evidence of the only witness who saw the accident, established the great speed of the motorcycle, and make entirely credible the statement of the driver of the truck that when he looked towards the left he did not see the approaching motorcycle because it had not then come within the range of his vision. Even if he had seen the officer in the distance on his motorcycle, he would have been justified in assuming that it was unnecessary again to look to his left, upon the presumption that the motorcycle was being driven under control, and that, in obedience to the rules of the road, it would yield the right of way to vehicles approaching on the officer's *199 right, and that, although his truck was on the wrong side of the center of Railroad Avenue, the lighter and more mobile vehicle would not be driven into his plainly visible, heavy, and slow moving truck. See Code, art. 56, sec. 209.
In answer to this, the argument is made that if the driver of the truck had kept to the right of the center line of Railroad Avenue, the officer would have had one-half the width of the avenue into which to turn to avert the collision. This argument ignores the excessive speed at which the motorcycle was moving, and rests upon the unjustifiable assumption that a motorcycle, whose speed was so great it was beyond the control of its operator, could safely have made, at the right angle formed by the two highways, an abrupt and sharp turn into Railroad Avenue south of its center line. The difficulty of making so arbitrary a conjecture is increased by the fact that the officer did not have sufficient presence of mind to avail himself of at least ten feet of roadway in which he could have swerved safely in his course on the boulevard and passed in front of the slowly moving motor truck.
The argument is, also, fallacious in treating the evidence that the servant of the appellant had not kept to the right of the center of the highway as such negligence as would of itself justify a recovery. This position disregards the fact that the plaintiff must show affirmatively not only that the defendant was negligent, but also, assuming there was such negligence, that such negligence caused the accident, or whether in this particular case there was not such clear want of ordinary care to avoid the accident on the part of the officer as would make it irrational for a reasonable person to believe the accident would have happened except for this failure of ordinary care in the officer himself. Anne Arundel County v. Collison,
On the uncontradicted evidence, and the indisputable inferences to be drawn therefrom, it does not seem possible for two views to be entertained of the conduct of the motorcyclist. *200
The officer's service compelled him to know the rules of the road, and he was patrolling the highway for the purpose of enforcing these rules when he met his death. For the safety of himself and all using vehicles upon the highway, it was his imperative duty to avoid danger by the observance of these rules. The fact he was an officer in pursuit of a driver of an automobile, who was exceeding the speed limit, made his swift pace none the less dangerous, nor did it relieve him of the legal duty to observe due care for the protection of those whom he knew, or by the exercise of reasonable judgment should have expected, to be using the highways at the place of the accident. 22 R.C.L., "Public Officers," sec. 162, pp. 484, 485; 1 Bevenon Negligence (3rd Ed.), 220; Mainwaring v. Geisler,
The appellee relied upon the case of Rosenthal v. Durkin,
In view of our conclusion that the trial court should have granted appellant's B prayer, withdrawing the case from the jury on the ground of the contributory negligence of the dead officer, it will be unnecessary to discuss the other exceptions and prayers.
Judgment reversed, with costs, without a new trial. *204