delivered the opinion of the Court.
Thеse appeals were spawned on a foggy morning in March, 1964. Kaczmarek, driving Canestrale’s truck, which was. loaded with kitchen cabinets destined for College Park, 1 had reached a point on U. S. Route 40 A about 8 miles east of Hagerstown and some 1,000 feet from the summit of South Mountain, when the truck’s engine, which earlier had evinced symptoms of malfunction, came to a complete stop.
The highway at this point is divided into three lanes, one for the downhill (westbound) traffic and two for the uphill (eastbound) traffic. The right uphill lane is for slow traffic, the left for faster traffic. Photographs in the record indicate the presence of a shoulder about six feet wide adjoining the slow lane. Kaczmarek, eastbound, had been moving uphill, in the slow lane.
Meanwhile, Weishaar, also eastbound on U. S. 40 A, was on his way up the mountain. He had just delivered 6,000 gallons of fuel oil in Hagerstown and was on his way back to Baltimore. He said it was clear at the foot of the mountain but as he ascended he “could see this fog rolling in just like smoke.” He kept on and after a while, about 50 feet away, he saw “a dark splotch through [the] fog which * * * [he] presumed was a slow moving truck.” He did not attempt to pass on the left because a glance at the rear view mirror disclosed headlights behind him in the fast lane. He said he was unable to avoid striking the rear of Kaczmarek’s truck. The impact was of such force that the Canestrale truck was tumbled over into the ditch bordering the dirt shoulder. Kaczmarek, Michener and Weishaar were injured, Weishaar’s truсk was damaged and Canestrale’s truck was a total loss.
The trial resulted in judgments in favor of Canestrale ($2,-960) and Kaczmarek ($2,070) from which Weishaar has appealed. He has also appealed from the judgment in favor of Canestrale and Kaczmarek for costs in the counter claim filed by him. Canestrale’s cross aрpeal is from the trial court’s exclusion of evidence bearing on damages arising out of the loss of the cargo.
I.
Weishaar’s first two contentions can be treated together. He says there is in the record no evidence upon which a jury could erect a finding that he was negligent. Moreover, he says, Kaczmarek was negligent as a matter of law. We do not agree with either contention.
The evidence abounds with instances of conflict and ambiguity. Weishaar said he was about 50 feet from Kaczmarek’s truck when he first saw it and that he could not have seen it
Weishaar’s speed prior to, and perhaps at the instant of, the collision was. twenty-eight miles per hour. He so testified and his testimony was corroborated by the card removed from the Tachograph, a time-speed recording deviсe which had been installed in his truck. Asked, on cross-examination, within what distance he could bring his truck to a stop he answered “roughly two hundred and fifty feet.” Additionally pressed, still on cross-examination, he watered this down to “a hundred and fifty or two hundred feet.” Also he admitted he could see “only fifty feet.”
The determination of the limits of visibility at the time of the accident was an undertaking peculiarly within the province of a jury. The jury quite properly could have found that, during the 30 seconds just before the collision, Weishaar had a clear view ahead for a distance of 300 to 1,000 feet. Assuming such a finding, a simple and inexorable conclusion follows, namely, that Weishaаr could have avoided the collision by stopping within the 250 feet he claims he required, and this provides a sound basis for a finding of primary negligence.
Ford
To support a holding that Kaczmarek was guilty of negligence as a matter of law there must be found in the evidence some prominent and decisive act, or failure to аct, which permits of but one interpretation and in regard to which there is no room for reasonable minds to differ.
Thomas v. Baltimore Transit Co.,
“* * * This section, however [§ 244] only requires this to be done [parking on the shoulder] ‘when it is practical,’ and there is an exception in Section (b) for any disabled vehicle when it is impossible to avoid stopping and temporarily leaving such vehicle on the paved portion of the highway. The Legislature could not have intended the driver of a heavily loaded truck, such as the one in this case, to drive off on a grass shoulder which could not support the load and thereby mire his vehicle indefinitely, if it did not actually run into the ditch. * * *” Id at 89-90.
Kaczmarek might have been able to maneuver his truck so as to place it more on the shoulder and less on the road but it is not likely he would have been able to move it more than another foot off of the paved part of the road. This would, however, have been a chancy operation and 1 we must reject the argument that he was negligent as a matter of law, in not making the attempt.
Weishaar also argues that the failure to put out flares constitutes negligence as a matter of law. If visibility had been limitеd to 50 feet at the time of, and just before, the collision, and the evidence in regard thereto was clear, uncontradicted and uncontroverted, the argument might be persuasive, but, as we have pointed out, there is a sharp conflict in this area. There was evidence that “* * * vehicles * * * [were] clearly discernible at a distance of 300 feet ahead” and in these circumstances Code, Art. 66)4, § 271 (a) (1957) does not require the display of “lighted lamps and illuminating devices.” Kaczmarek was required by Code, Art. 66)4, § 300 (a) (1957) to carry flares, and it is agreed flares were in his truck, but § 300 (b) does not require their display except “during the period when lighted lamps must be displayed on vehicles.” § 271 (a). The jury might very well have found that Kaczmarek rightly judged visibility to be sufficient to obviate the necessity of setting out flares. In any event, while a violation of a statute is evidence which may support a finding of negligence, it is not, without more, conclusive of negligence.
Ford v.
Bradford,
supra.
We might agree that he would have been well advised to set out flares but we must reject the argument that his failure to do so, under the circumstances, made him negligent as a matter of law.
Ford v. Bradford, supra; Meldrum v. Kellam Distr. Co.,
II.
Weishaar next contends that an improper instruction was granted at the request of Kaczmarek and that a proper instruc
Judge McLaughlin refused Weishaar’s request for an instruction to the effect thаt the operator of a motor vehicle has a right to assume, even though visibility may be affected by fog, that the road ahead is safe for travel unless a danger is indicated by a red light or other warning signal. It is argued that the decision of our predecessors in
Marshall v. Sellers,
Immediately after the accident Canestrale ordered a replacement for the truck which had been destroyed. Because the body had to be specially fabricated for his use, delivery was not accomplished until five weeks later, during which time, in order to continue his business, he was obliged to hirе a truck. He was permitted, over objection, to show that this cost him, at $175 per week (conceded to be reasonable) a total of $875, which amount the jury included in its verdict under the instructions of the court. Weishaar argues this is reversible error on the part of the trial judge.
Barnes v. United Railways Co.,
Guido, et al. v. Hudson Transit Lines,
“The rule is well established that the mеasure of damages for the conversion or destruction of a chattel is the market value of the chattel at the time and place of the conversion or destruction. While this is sometimes stated as though it were a rule applicable to vehicles it is a general rule applicable to all kinds of chattels. The justification for it is that this provides a convenient rule of thumb and, in case the article is readily replaceable on the open market, compensates the owner for his loss.
“The difficulty comes when this convenient rule of thumb is sought to be applied to every case regardless of the circumstancеs. This the defendant would have us do here and cites authorities which have taken this ironclad view of the matter. [Citing cases.] The fear of allowing ‘speculative’ damages has scared some courts into applying what Mr. Justice Christiancy years ago called ‘the certainty of injustice.’ [Allison v. Chandler, 1863,11 Mich. 542 , 555.]
“The general principle which should govern the matter is quite clear. Damages are supposed to compensate the injured person for the wrong which has been done him. [Restatement, Torts, § 910.] If his loss is greater than the market value of the chattel at the time of its destruction, an owner should, on principle, be allowed additional items which will adequately compensate him unless some of those claimed items are so speculative as to create danger of injustice to the defendant.
“Here we have the perfect case for the allowance of the additional element of damages. As pointed out above, the plaintiffs’ case removed the possibility of speculation by careful proof which showed not only the possibility of profitable use but an actual contract for that use. This case, therefore, fits perfectly into the statement of the measure of damages set out in Section 927 of the Restatement of Torts.” Id at 742.
Accord, Chesapeake & Ohio Ry. Co. v. Elk Refining Co.,
IV.
Canestrale’s cross appeal arises out of the exclusion of a bill offered to prove the value of the cargo which was destroyed in the accident. It is conceded that San Tоurneau Cabinets was the owner of the cabinets and that Canestrale was obligated to pay for them. It is conceded also that as bailee he had a right to sue for their destruction. The only evidence offered to prove their value was the bill from San Tourneau to Canestrale. The court admitted the bill subject tо exception but struck it at the conclusion of the evidence, correctly, we think, since its admission would have violated the rule against hearsay evidence.
Glen Burnie Plaza v. Schreiber,
V.
For the reasons set forth above the judgment will be affirmed.
Judgment affirmed. Costs to be paid by app appellants.
Notes
. College Park, Maryland is located in Prince George’s County about 4 miles northwest of the District line.
. § 244. Stopping, standing or parking outside of business or residence districts.
(a) In general. ■— Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main-traveled part of the highway when it is practical to stop, pаrk, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed width of at least twelve (12) feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 200 feet in each direction upon such highway.
(b) Disabled vehicles. —• This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position. (An. Code, 1951, § 209; 1943, ch. 1007, § 189.)
. Counsel for Weishaar excepted to this portion of the court’s instructions to the jury.