Mallard v. Earl

665 A.2d 287, 106 Md. App. 449
CourtCourt of Special Appeals of Maryland
DecidedSeptember 28, 1995
DocketNo. 1682
StatusPublished
Cited by19 cases

This text of 665 A.2d 287 (Mallard v. Earl) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mallard v. Earl, 665 A.2d 287, 106 Md. App. 449 (Md. Ct. App. 1995).

Opinion

HOLLANDER, Judge.

This case concerns the scope and application of the Boulevard Rule in a situation in which the favored and unfavored [452]*452drivers have both been sued by the favored driver’s passenger. Appellant, Dale Mallard, was the favored driver in an automobile that collided with a bus operated by appellee, Franklin Hall; appellee Matthew Earl was a passenger in Mallard’s car. Earl filed suit in the Circuit Court for Prince George’s County against Mallard, Hall, and Hall’s employer, appellee Board of Education for Prince George’s County (the “Board”). After the court denied Mallard’s motions for judgment, the jury found that Mallard had been negligent but that Hall had not been negligent. Thereafter, the court denied Mallard’s motion for judgment notwithstanding the verdict (“JNOV”). From the judgment entered against him, Mallard has appealed. Earl has filed what he has styled as a “conditional cross-appeal;” he asks us to reach his cross-appeal only if we reverse or vacate the judgment against Mallard.

ISSUES

Mallard raises several issues for our consideration:

I. Did the Trial Court err in not granting Defendant Mallard’s Motions for Judgment and Motion for Judgment Notwithstanding the Verdict?
A. Did the Trial Court erroneously permit the issue of negligence of the favored driver, Appellant Mallard, vel non, to reach the jury in violation of the statutory right-of-way under the Boulevard Rule?
B. Assuming Arguendo That Legally Sufficient Evidence Was Presented At Trial To Divest the Appellant of His Statutory Right-Of[-]Way Under The Boulevard Rule, Was The Evidence Presented At Trial Was [sic] Insufficient to Establish That Any Alleged Excessive Speed or Inattention By Appellant Mallard Was The Proximate Cause of the Accident?
II. Did the trial court erroneously refuse to instruct the jury on the continuing duty under Maryland’s Boulevard Rule of the unfavored driver to continuously yield the right-of-way to favored drivers as the unfavored driver crosses the boulevard?

[453]*453Earl asks us, in the event we reverse or vacate the judgment against Mallard, to consider two additional issues:

I. Did the trial court err by refusing to instruct the jury regarding the unfavored driver’s duty to yield the right of way throughout his journey across the boulevard[?]
II. Did the trial court err when it refused to admit into evidence a copy of the docket entries from the case known as State v. Franklin Hall, from the District Court of Maryland for Prince George’s County, showing that defendant Hall had tendered a plea of guilty for failing to yield the right of way, and by refusing to admit into evidence the transcript from said case containing statements made by defendant Hall[?]

We hold that the trial court erred in denying Mallard’s motions for judgment and judgment notwithstanding the verdict. We further hold that Earl’s claim of error as to the jury instruction is meritorious. Accordingly, we shall reverse and remand for a new trial concerning Earl’s claim against Hall only. As a result, we decline to reach Earl’s remaining issue.

FACTUAL BACKGROUND

On the morning of June 6, 1990, motor vehicles operated by Mallard and Hall collided in the town of Seabrook, Maryland at the intersection of Good Luck Road and a sideroad. Good Luck Road runs east-west with two lanes in each direction, divided by a double yellow line; it has a posted speed limit of 35 miles per hour. The two-lane sideroad changes at Good Luck Road: To the north, it is undivided and is called Palamar Drive; to the south, it is divided by a grass median and is called Woodstream Drive. Palamar and Woodstream both are governed by stop signs at the intersection with Good Luck Road. Also, from the intersection, Good Luck Road curves gradually northward along both the eastbound and westbound lanes.

At the time of the accident, Mallard, who was 17 years old, was driving his father’s automobile eastbound on Good Luck Road. Earl and his two sisters were passengers in Mallard’s [454]*454vehicle. Hall was driving a school bus south on Palamar. The bus, which fortunately was empty, was about 40 to 45 feet in length. The parties contest various details of the collision, but it is undisputed that Mallard’s car hit the bus between its right rear wheel and rear bumper while the bus was crossing Good Luck Road.

At trial, Mallard and his passengers (including Earl) all testified that Mallard was driving between 35 and 40 miles per hour. Prior to the collision, “thrash” music1 was playing on the tape player, and Mallard’s passengers were engaged in conversation. Nevertheless, the passengers testified that Mallard had not chosen the music, did not control the volume, and did not take part in the conversation. Moreover, they said that Mallard apparently was paying “full attention” to his driving and did not drive recklessly. None of Mallard’s passengers noticed the bus until they heard Mallard yell “look out” just before impact, and they could not recall whether Mallard ever took any specific evasive action.

Mallard asserted that he first saw the intersection as he was about 275 and 300 feet from it, while driving in the fast eastbound lane.2 Further, he saw Hall’s bus at a distance of about 250 to 275 feet, as the bus approached the stop sign at Palamar. According to Mallard, when Mallard was about 175 to 200 feet from the intersection, he observed that Hall failed to stop at the stop sign and rolled across the two westbound lanes of Good Luck Drive. Seeing this, Mallard “let up on the gas,” expecting the bus to accelerate across Good Luck and enter Woodstream. Instead, he said, the bus stopped with its front on Woodstream and its rear partially blocking the fast [455]*455eastbound lane. Mallard testified that he swerved into the westbound lanes to avoid the bus, but had to swerve back into the eastbound lanes to avoid oncoming westbound traffic. He hit the brakes, but to no avail. Mallard admitted, through deposition testimony read at trial, that he “didn’t slam on [his] brakes at any point in time until [he] was about to hit the bus.” Mallard estimated that the whole incident, from the time Hall entered the eastbound lanes until impact, occurred in less than five seconds.

Hall painted a contrasting picture. He averred that, at the point that he approached Good Luck, he came to a complete stop at the stop sign, but he could only see up to 60 feet eastbound and 50 feet westbound. After looking both ways, he began to proceed slowly across Good Luck. Hall first saw Mallard’s car when the bus entered the fast westbound lane, but before it had crossed the median. Hall estimated that when he then saw Mallard’s car it was about 120 to 150 feet away in the curbside eastbound lane. Hall acknowledged that he only caught a glimpse of Mallard and, based on that glimpse, Hall “flinched.” But, as he believed he could traverse Good Luck safely, he accelerated his bus. He admitted never looking back toward Mallard, but denied stopping the bus prior to the collision. Although Hall is a professional driver, he could not offer even an approximation of Mallard’s speed. Hall believed, however, that Mallard was travelling “well in excess” of 35 miles per hour.

DISCUSSION

I.

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Cite This Page — Counsel Stack

Bluebook (online)
665 A.2d 287, 106 Md. App. 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallard-v-earl-mdctspecapp-1995.