Beckward v. Hensel

316 A.2d 309, 20 Md. App. 544, 1974 Md. App. LEXIS 486

• Court: Court of Special Appeals of Maryland
• Decided: March 19, 1974
• Docket: 311, September Term, 1973
• Status: Published

Opinions

Davidson, J.,

delivered the opinion of the Court. Powers, J., concurs and filed a concurring opinion at page 557 infra. Orth, C. J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 561 infra.

This suit was brought in the Circuit Court for Allegany County by Garfield Beckward and his wife, Jean Etta Beckward, against Russell William Hensel and his father, Henry Charles Hensel. Beckward claims damages for injuries sustained when the automobile he was operating was struck by an automobile driven by Russell William Hensel. Beckward and his wife join in a claim for damage to the marital relationship. She made no claim for personal injuries. At the close of the plaintiffs’ case Judge James S. Getty, with the consent of the plaintiffs, granted a motion for a directed verdict in favor of Henry Charles,Hensel. At the close of the entire case Judge Getty, over the objection of the plaintiffs, granted a motion for a directed verdict in favor of Russell William Hensel on the ground that Garfield Beckward was contributorily negligent as a matter of law. This appeal followed.

The evidence, together with all reasonable and legitimate inferences deducible therefrom, considered in the light most favorable to the appellants, is as follows.¹ The accident occurred in the intersection of Vocke Road and Maryland Route 49. At this location Vocke Road is a four-lane highway which runs east and west, with two westbound lanes separated from two eastbound lanes by a median strip. The speed limit is 40 miles per hour. Maryland Route 49, which runs north and south, meets Vocke Road at an intersection controlled by a stop sign for traffic traveling north on Route 49. Cars moving north along Route 49 toward its intersection with Vocke Road travel downhill.

At the time of the accident Garfield Beckward was about 41 years of age, married, the father of two children who were no longer living at home, and employed. At about 1 a.m. on 1 February 1970 Mr. Beckward was driving his car, with his wife sitting on the front seat next to him and his brother, Harry Beckward, Jr., and his brother’s companion, Anna Washington, sitting in the back seat. They were all going home after a dinner party celebrating Mrs. Beckward’s birthday. They were driving north on Maryland Route 49, approaching its intersection with Vocke Road. It was a clear night. It was dark. There was no artificial illumination and no moonlight. Beckward had his headlights on. There was no physical obstruction to his view of Vocke Road.

When Beckward reached the stop sign on Maryland Route 49 he came to a complete stop, and twice looked to his right and left. He saw no cars, and he slowly pulled out into the intersection. His wife and brother also were looking for traffic when he stopped at the intersection and saw none. As he reached the northernmost eastbound lane of Vocke Road, his car had attained a speed of about five miles per hour. He, his wife, and brother were still looking left. Suddenly, in the reflection of Beckward’s car lights, they saw the front of a car coming toward them fast. When first observed the car was about twenty feet away from them. Its headlights were not turned on. By the time they saw the vehicle it was too late for Mr. Beckward to apply his brakes, take his foot off the gas pedal or do anything else to avoid the accident. There was a collision. The impact of the crash turned the Beckward vehicle around and threw Mr. Beckward and his wife from the car. Mr. Beckward was permanently paralyzed from the waist down. Mrs. Beckward and the other passengers sustained relatively minor injuries. The left front and side of the Beckward vehicle, including the fender, grill, bumper and engine, were smashed.

The appellee, Russell William Hensel, was 19 years old at the time of the accident. At about 1 a.m. on 1 February 1970 he was using his father’s car to drive a girlfriend home. He had been traveling east along Vocke Road for about a half a mile at a speed of approximately 40 miles an hour. Before he reached its intersection with Route 49 Hensel saw the Beckward car, with its lights on, coming down Route 49. When first observed the Beckward car was approximately 300 feet from the intersection. Hensel continued to watch the Beckward vehicle until it entered the intersection, at which point he applied his brakes. He traveled 14 feet with his brakes locked and then the collision occurred. The Hensel car was propelled approximately 15 feet onto the median strip. Hensel suffered relatively minor injuries, although his passenger was severely hurt. The right front of the Hensel car, including the fender and headlights, was smashed.

The appellee contends that appellant, the unfavored driver, was guilty of contributory negligence as a matter of law. He maintains that Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972) is controlling. We do not agree.

In Creaser a school bus driver was traveling east on an unfavored street at about 7 a.m. She came to a stop sign at which she stopped preparatory to turning north onto a boulevard. As a result of a hill and a curve in the road her view of the boulevard to the north was limited to 200 feet. In addition, her vision was somewhat obstructed by a bank, large trees and bushes. After her initial stop she slowly “creeped out” and stopped again before entering the boulevard. She looked again and, seeing no traffic but maintaining her vigilance to the north, she began to turn left, driving at about five miles an hour. When the front of the bus reached the center of the boulevard, she saw a Cadillac “jump” over the hill traveling at about 60 miles per hour. In an attempt to avoid an accident she tried to accelerate so as to clear the Cadillac’s lane, but her efforts were unsuccessful and the collision occurred. A majority of the Court of Special Appeals held that the boulevard rule did not apply as a matter of law, and that the bus driver was entitled to have a jury assay the quality of her conduct in light of the duties imposed upon her. Owens v. Creaser, 14 Md. App. 593, 288 A. 2d 394 (1972).

The Court of Appeals reversed. In its opinion the Court of Appeals defined the boulevard rule as commanding that:

“[A] driver upon approaching a ‘through highway’ from an unfavored road must stop and yield the right of way to all traffic already in or which may enter the intersection during the entire time the unfavored driver encroaches upon the right of way; this duty continues as long as he is in the intersection and until he becomes a part of the flow of favored travellers or successfully traverses the boulevard.

“[T]he duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored road and the driver on the favored highway has a right to assume that he will do so.

“This rigorous duty of the unfavored driver is not excused by claims of excessive speed on the part of the favored driver or lessened because the unfavored driver’s view is obstructed. On the contrary, such circumstances probably dictate greater caution.” (Footnote and citations omitted.) 267 Md. at 239-40, 243, 248-49, 297 A. 2d at 236, 238, 241.

In discussing the application of the rule, the Court quoted with approval from Shedlock v. Marshall, 186 Md. 218, 235, 46 A. 2d 349, 357 (1946), in which Chief Judge Marbury said:

“What the statutes, as interpreted by [all the Maryland] 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 negligence contributing to the accident, and if he succeeds in this, no verdict can be obtained against him. Then both parties are negligent.”

In explaining its reasons for these exacting and sometimes seemingly harsh rules, the Court pointed out that their purpose was to accelerate the flow of traffic over through highways by permitting travelers to proceed without interruptions. This purpose would be frustrated if the relative rights of travelers on through highways and those intersecting them were dependent upon “nice calculations of speed, time, and distance” so that travelers on through highways would be required to slow down at every intersecting highway in order to assure freedom from liability in the event of an accident. Finally, the Court of Appeals quoted with approval the statement by Judge Gilbert for the dissenters in the Court of Special Appeals as follows:

“The ruling of the majority in this case erodes the Boulevard Rule and creates the defense that the unfavored driver could not see approaching traffic. Such a ruling requires the favored driver to know of obstacles at the intersection with an unfavored road and to take such precautions as may be requisite under the circumstances. Under the majority opinion, the favored driver no longer has the right to anticipate that an unfavored driver will not enter an intersection and deprive the favored driver of his right of way. The favored driver is now placed in the untenable position of having to be gifted with clairvoyance and extra-sensory perception in order to determine that the vision of the unfavored driver is not going to be hindered by hills, curves, walls, trees or other obstructions. In short, the majority render the Boulevard Law meaningless in its application to intersections where the unfavored driver’s vision is obscured.” 267 Md. at 250, 297 A. 2d at 241.

The Court of Appeals then applied the “Boulevard Rule” to the facts of the case and held the unfavored driver-plaintiff to be contributorily negligent as a matter of law.

Notwithstanding the rigorous application of the boulevard rule in Creaser, the Court of Appeals reaffirmed the fact that there can be circumstances involving accidents at intersections in which the boulevard rule is inapplicable. Creaser v. Owens, supra, 267 Md. at 247, 297 A. 2d at 240. In Nicholson v. Page, 255 Md. 659, 259 A. 2d 319 (1969), the unfavored driver-plaintiff was proceeding west in his automobile. When he came to an intersection with a boulevard he stopped in obedience to the stop sign. He looked to his left and observed that traffic in the northbound lane of the boulevard was backed up behind a bus. The operator of the bus waved the plaintiff on. The plaintiff drove across the northbound lane in front of the bus and then looked to his right for southbound traffic. He saw nothing coming and proceeded to cross the southbound lane. As he did so a car which had been stopped 15 feet behind the bus in the northbound lane went around the bus on the left and proceeded to make a left-hand turn onto the unfavored street. The collision then occurred. The court said:

“In the present case, the plaintiff did stop as required by law before entering Carey Street. He looked to his left and saw that northbound traffic was at a standstill in the northbound lane and would necessarily remain standing until the bus, as the first stopped vehicle occupying substantially all of the northbound traffic lane, moved forward. The bus driver waved the plaintiff on to cross the northbound lane thereby reasonably indicating to the plaintiff that the bus would not move forward, as, indeed, it did not. Having then substantially crossed the northbound lane of Carey Street, the plaintiff properly looked to his right to see whether or not there was any southbound traffic to which he was required to yield the right-of-way. Seeing no such southbound traffic (and there was none), he then proceeded to cross the southbound lane of Carey Street. In our opinion, it was not foreseeable by the plaintiff that the defendant would drive his automobile from the standing position in the northbound lane of Carey Street, 15 feet behind the bus, cross into the southbound lane, contrary to the statutory requirement, and attempt to make a left-hand turn, contrary to the statutory requirement,, into Ward Street. This unforeseeable and negligent act by the defendant was, as we have already indicated, the proximate cause of the collision and not the lawful passage of the plaintiff’s vehicle across Carey Street.” 255 Md. at 666-67, 259 A. 2d at 324.

The Court held that under these particular circumstances the boulevard rule was inapplicable. Therefore the unfavored driver-plaintiff was not contributorily negligent as a matter of law and could recover damages.

The same result was reached by this Court in Riberkoff v. Fields, 15 Md. App. 288, 289 A. 2d 859 (1972), where a collision occurred when a taxicab ph the boulevard backed across the intersection and idéd with the unfavored said: driver’s car. There Judge Mo , speaking for this Court,

“As in Nicholson, the appellee here did stop as required by law before éiitering Fayette Street. He looked to his right and skw no traffic approaching in a permitted westerly direction. He looked to his left and saw no traffic approaching in an easterly direction even in violation of the one-way mandate westbound. Any observation of the appellant’s taxicab as it came in a southerly direction along Schroeder Street and turned right, or westbound, onto Fayette would have indicated that it was beyond the intersection and, indeed, moving away from it. In our opinion, it was not foreseeable by the appellee that the appellant would suddenly stop, shift into reverse and then, against the lawful flow of traffic, come backing all the way across the intersection. We cannot agree that the appellee was, as a matter of law, guilty of contributory negligence. We therefore hold that the trial judge was correct in permitting the issues of both primary negligence and contributory negligence to go to the jury.” 15 Md. App. at 292, 289 A. 2d at 861.

Thus this Court held the boulevard rule to be inapplicable. The unfavored driver-plaintiff was not held to be contributorily negligent as a matter of law and was permitted to recover from the favored driver.

Both of these decisions were bottomed on the Court’s recognition of the fact that under certain circumstances the conduct of a favored driver could be such as to alter the relative rights and obligations of drivers at an intersection. A favored driver approaching an intersection in a direction opposite to that in which traffic is otherwise proceeding is not entitled to be protected by a right-of-way. Since his conduct makes it impossible for his presence on the highway to be anticipated by the unfavored driver, he has no right to assume that the unfavored driver will yield the right-of-way to him. Moreover, for the same reason, the unfavored driver has no duty to look for or yield the right-of-way to the favored driver. Both of these decisions acknowledge that the unfavored driver-plaintiff had done everything which could reasonably be expected of him in circumstances where the negligent conduct of the favored driver made it impossible for the unfavored driver to anticipate his presence on the highway. Therefore the unfavored driver’s failure to look for and yield the right-of-way was excused and did not bar his recovery.

A careful analysis of the facts in the instant case reveals substantial differences from those in Creaser which materially affect the relative rights and obligations of the drivers at the intersection. In Creaser the unfavored bus driver’s inability to see was caused by the physical characteristics of a site over which neither she nor the favored driver had any control. Her view of the boulevard was limited by a hill and a curve and her vision was further somewhat obstructed by a bank, large trees and bushes. Since she was fully aware that the physical characteristics of the site interfered with her ability to see approaching vehicles, she had every reason to anticipate that a vehicle might approach which she might well be unable to see in time to yield the right-of-way. These circumstances dictated both that she exercise greater caution than would otherwise be required and that she understand that she proceeded at her own risk. In this case Mr. Beckward’s view of the highway was not limited by any physical characteristics of the site. Indeed his view of the boulevard was totally unobstructed. His inability to see was caused by the negligent conduct of the favored driver, Mr. Hensel, who failed to turn on his lights.² He had no reason to anticipate that in the dead of night an unlit vehicle might approach which he would be unable to see. These circumstances required nothing more than the exercise of an ordinary degree of care on his part and were not such as to put him on notice that he was proceeding at his own risk. In Creaser, the favored driver, even though speeding, had no duty to be gifted with clairvoyance and extrasensory perception. He had no reason to anticipate that the view of an unfavored driver was going to be impeded by hills, curves, banks, trees, bushes or other physical obstructions, and therefore had a right to anticipate that an unfavored driver at any intersection would yield the right of way to him. In this case the favored driver, traveling along the boulevard with his lights out, saw the unfavored driver before he reached the intersection and watched him as he approached the stop sign. The favored driver knew or should have known that the unfavored driver might be unable to see his unlit car in time to yield the right-of-way, and therefore he had no right to anticipate that the unfavored driver would or could yield to him. In Creaser the favored driver’s alleged negligence consisted of speeding, and therefore, if the issue of contributory negligence on the part of the unfavored driver-plaintiff were submitted to the jury, the determination of the relative rights of the travelers at the intersection would depend upon nice calculations of speed, time and distance. Here the favored driver’s negligence consisted of a failure to turn on his lights. Therefore if the same issue were submitted to the jury, the favored driver’s liability would depend upon a simple choice between two alternatives — whether or not the unfavored driver’s failure to see and yield to an unlit car approaching on a dark, unilluminated highway was justifiable — and not on nice calculations of speed, time and distance.

We recognize that the facts in this case are not identical to those in Nicholson or Riberkoff. We are cognizant that in those cases the negligent conduct of the favored driver-defendant consisted in moving in a direction opposite to that in which traffic was otherwise proceeding, whereas here the favored driver was moving in the proper direction, albeit with his lights off. However, because in all three cases the effect of the favored driver’s negligent conduct was to make it impossible for the unfavored driver to anticipate his presence on the highway, we view this as a difference in degree rather than kind. We see no reason to impose upon the unfavored driver a duty to be gifted with clairvoyance and extrasensory perception in order to determine that a favored driver is going to approach an intersection on a dark and unlit road with his headlights off.

In the final analysis the unfavored driver-plaintiff here, as in Nicholson and Riberkoff did everything which could reasonably be expected of him under all of the circumstances. He stopped as required by law before entering the boulevard. He had his lights on as required by law. He properly looked to see whether there was traffic to which he was required to yield the right-of-way. Seeing no such traffic, because the favored driver’s lights were not on, he then proceeded to cross the eastbound lane while maintaining his vigilance to the left. In our opinion the fact that the favored driver-defendant would, contrary to statute, drive his automobile on a dark and unlit highway without turning on his lights was no more foreseeable in this case than was the negligent conduct of the favored drivers in Nicholson and Riberkoff. We believe that Nicholson and Riberkoff rather than Creaser control this case.

Accordingly we hold that under the particular facts and circumstances here involved the boulevard rule is inapplicable and the appellant is not guilty of contributory negligence as a matter of law. The trial court erred in directing a verdict in favor of Russell William Hensel and in failing to submit the issues of both primary negligence and contributory negligence to the jury.

Both the docket entries and the transcript show that a motiojn for directed verdict in favor of Henry Charles Hensel was granted on 22 March 1973 and that a similar motion in favor of Russell William Hensel was granted on 23 March 1973. However, an examination of the record shows that no final judgments were entered for or against any of the parties. Consequently the appeal was premature. Stitzel v. Kurz, 18 Md. App. 525, 540, 308 A. 2d 430, 438-39 (1973). As we are authorized to do by Maryland Rule 1071, we remand the case to the lower court for further proceedings necessary for determining the action upon its merits as if no appeal had been taken. The further proceedings shall include the prompt entry of final judgments in accordance with the directed verdicts granted by the trial judge in favor of Henry Charles Hensel, as to whom no issues were raised on appeal, and in favor of Russell William Hensel. For a period of thirty days after the entry of judgments the trial court shall have revisory power and control over such judgments under Maryland Rule 625(a). Upon a proper and timely motion the trial judge should strike the judgment and order a new trial as to Russell William Hensel, as to whom issues were raised on this appeal. We call attention to the provision in Rule 1071 that the order entered by this Court and the opinion on which the order is passed shall be conclusive as to the points finally decided thereby.

Case remanded for the purpose of further proceedings in accordance with this opinion.

Costs in the lower court to abide the result.

Costs in this Court to be paid by appellee Russell William Hensel.

1 . In deciding whether a motion for a directed verdict was properly granted, we must consider the evidence, together with all reasonable and legitimate inferences which may be deduced therefrom, in the light most favorable to the party against whom the motion was directed. Mike v. Service Review, Inc., 19 Md. App. 287, 298-99, 310 A. 2d 585, 592 (1973); Pratt v. Coleman, 14 Md. App. 76, 78, 286 A. 2d 209, 210-11 (1972); Mazer v. Stedding, 10 Md. App. 505, 506-07, 271 A. 2d 381, 381-82 (1970).

2 . Code (1957), Art. 661/2, § 12-201 provides:

“Every vehicle upon a highway within this State at any time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 1,000 feet ahead shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles, subject to exceptions with respect to parked vehicles, and further that stoplights, turn signals, and other signaling devices shall be lighted as prescribed for the use of these devices.”