Harper v. Higgs , 225 Md. 24 ( 1961 )

Hammond, J.,

delivered the opinion of the Court.

If Conan Doyle had written this chapter of the Maryland Reports, he might have called it “The Case of the Completely Inattentive Women Drivers.” The principal legal question presented is whether the jury should have been allowed to find out for themselves (as they were) a real culprit in the automobile accident case, or whether the judge should have peeked and told them how the story ended, as a matter of law.

The plaintiffs below were a husband and wife. The wife, Mrs. Higgs, a passenger in a car which entered from a side road and came into crushing contact with a car on the main road, sued the favored driver, Mrs. Harper, who impleaded the driver of the unfavored car, Mrs. Hurry. The case was submitted on issues as to: (1) the primary negligence of Harper; (2) the primary negligence of Hurry; and (3) damages. The court refused to direct a verdict for Harper but instructed the jury to find Hurry negligent. The jury found that Harper also had been negligent and assessed damages at $25,000, which the court reduced to $12,500 because Mr. and Mrs. Higgs had released Hurry in conformity with the Contribution Among Joint Tortfeasors Act. Harper’s motion for judgment n. o. v. was denied and she appealed from the final judgment, claiming that a verdict should have been directed in her favor, there was error in the charge to the jury and prejudice in the court’s refusal to allow expert testimony as to which car struck the other, and the so-called per diem or mathematical formula argument as to how damages for pain and suffering may be computed which was made to the jury was improper.

Mrs. Hurry was driving Mrs. Higgs, her sister-in-law, and a Mr. Brooks in her 1947 Chevrolet from St. Mary’s County to Ocean City. They got lost and found themselves in Wicomico County driving north on the Willard-Powellville Road, Route 354, which crosses Route 50, a boulevard, at Willards. Meanwhile, Mrs. Harper, then a hostess in an Ocean City hotel dining room, was coming west on Route 50, driving her daughter and three waitresses to Salisbury to shop, in her 1951 DeSoto.

A blinker light, suspended directly over the center of the intersection of Routes 50 and 354, flashed yellow for boulevard traffic and red for traffic on Route 354. There were stop signs for Route 354 traffic at the southeast and northwest corners.

Mrs. Hurry’s testimony was that as she approached the intersection “There was a red blinker on me. I stopped. And as I started to pull away I got in about the middle of the highway and my car cut off, and I was trying to start the car. And that is all I remember.” She did not see the Harper car “Because I was trying to start my car.” She did not know what happened there “other than I stopped and started again.”

Mr. Brooks, who was seated next to Mrs. Hurry on the front seat, said from the stand: “There was a stop sign there. Mrs. Hurry stopped her car. And she proceeded to go across the road, and practically got under the blinker light and her motor went dead. And in trying to start this motor, I suppose it was just a few seconds, that on my right this automobile * * * was right on top of us.” He thought they were stalled under the traffic light for five seconds or a little longer and that “while she was trying to start this car it eased ahead a little bit.” As Mrs. Hurry started across Route 50, after having stopped, Mr. Brooks, beside her on the front seat, looked both ways and “There was nothing coming either way at that time * * * I noticed both ways that 'there was nothing coming at that particular time that we stopped there at that stop-sign.”

One of the passengers in Mrs. Harper’s car, who was sitting in the back, testified that Mrs. Harper drove at a constant speed of thirty-five or forty miles an hour and the car’s speed did not decrease as they approached the intersection. Before they got there she saw the Hurry car approaching “and it was going at a speed that I didn’t think it was going to slow down for the intersection; so, I leaned forward on the seat to warn Mrs. Harper and everyone was talking, and I was waiting to get a sound in * * * when I looked again the car was coming right at us. * * * It hit on our left-hand side between the front and back door.” The girls in the car were talking about a beauty parlor a little bit to the east of the' intersection because the mother of one of the waitresses they worked with owned it. When the witness leaned forward to warn of the other car, Mrs. Harper was talking to someone. She “waited a second” to get her warning “in.” She did not “really” look to see whether the person Mrs. Harper was talking to was going to answer because “I was looking to see where the car was at. Because it was worrying me. I hollered ‘the car is not going to stop; it’s going to hit us’. And Mrs. Harper hollered ‘Where?’ and we hit.” Mrs. Harper said she was driving under fifty miles an hour and as she approached the blinker light she slowed down —how much she did not know. She saw the Hurry car “coming through the intersection” and “thought it would stop.” She reiterated several times that when she first saw the other car “it was moving through,” that it was “almost through the intersection” and that when she first saw it it was in the intersection but “not right in the middle.” She thought “the other car struck my car in front.” She applied her brakes and did “pull slightly to my right hand.”

A State policeman found the point of impact to have been seven feet north of the center line of Route 50 in the westbound lane. The Hurry car travelled 24 feet and the Harper car 20 feet after the impact. There were no skid marks.

Mrs. Harper’s motion for a directed verdict was on the theory that neither by act nor omission did she violate any obligation or duty the law imposes on a driver on a boulevard. The applicable law and its underlying theory have been stated and restated may times since Greenfeld v. Hook, 177 Md. 116, 125, 130, articulated them elaborately in 1939. A motorist must stop before he drives onto a boulevard and yield the right of way to vehicles thereon during their passage past the intersection. The relative rights of travellers on the two intersecting roads are not to be held to depend on nice calculations of speed, time and distance lest the obvious and essential purposes of the boulevard rule to accelerate the flow of traffic over the through highway at the permitted speed, without interruption, be frustrated. The favored driver has a right to assume the unfavored driver will stop and yield the right of passage and therefore, in most instances, even though the favored driver does not see the unfavored car he will not be guilty of negligence proximately causing the accident for, if he had seen it he could, unless put on notice to the contrary, have assumed it would stop.

As Judge Henderson for the Court put it in Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 180, the favored driver is not relieved of the obligation to use due care under the circumstances “But in determining due care, the assumption that the unfavored driver will stop and yield the right of way is an important factor.”

This obligation of the favored driver to use due care under the circumstances also has been stated and restated. In the Greenfeld case (in which the doctrine of last clear chance was held applicable in a stop street collision), Judge Offutt, speaking for the Court, said the boulevard law “does not mean that the traveller on the favored highway has an absolute, unqualified, and complete right of way, at all times and under all circumstances, over persons who have lawfully entered the street, nor that he can proceed thereon in blind indifference to the danger to which his progress may expose others. There are many situations in which the driver of an automobile entering a favored from an unfavored highway may without negligence be endangered by traffic over and along the same; * * * a child unexpectedly coming into the highway may cause him to stop or to go on, or some defect in the motor, the brakes, or the steering gear of his automobile may prevent his controlling it * * *. So, where a traveller on a favored highway knows or should know that his progress will endanger a traveller entering the same from a restricted highway, he must exercise reasonable care to avoid injuring him.”

In Shedlock v. Marshall, 186 Md. 218, 235, the earlier cases were reviewed and the Court said that the driver who enters the boulevard from an unfavored highway 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. * * * 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.”

Judge Henderson in the Belle Isle case, supra, at page 179 of 187 Md., made this observation of the Greenfeld case: “And in other passages in that opinion the court recognized that the driver on the favored highway does not have an absolute right to proceed under all circumstances. See also the comment on this case in 4 Md. E. R. 207, 213. The recitals in Section 1 of Article 66of the Code, as codified, would seem to negative any implication that the statute was designed to change the established law of negligence so as to relieve the favored driver of all duty to use care.”

Sonnenberg v. Monumental Motor Tours, 198 Md. 227, 234, by Judge Markell, said: “The driver of a taxicab or any other driver is not under a duty to anticipate, in the absence of evidence, that other drivers will often—or ever—cross negligently in violation of the boulevard law.” (Emphasis supplied.) Sun Cab Co., Inc. v. Hall, 199 Md. 461, 467, permitted recovery by a passenger in a favored taxi against the taxi owner because the driver did not see an unfavored car in the intersection in time not to hit it when he would have seen it in time to have stopped if he had been looking. Chief Judge Marbury said for the Court: “Boulevards are posted for the purpose of accelerating traffic, but they are not constituted speedways for reckless drivers who do not watch what is going on. It is true that the driver on a boulevard is not obliged to anticipate that someone will negligently come into his path, but he is not excused from liability to his passengers if someone does come in, and he fails to avoid a collision because he did not look in time to see what was inevitable.”

Fowler v. DeFontes, 211 Md. 568, 574, reiterated that the favored right of way “is to be enjoyed with due regard to the circumstances then and there existing.”

The latest pronouncement was made by Judge Henderson for the Court in Eastern Contractors, Inc. v. State, 225 Md. 112 (which equated a road on which the light was green to a boulevard) as follows: “There may be circumstances, apart from nice calculations of time and distance, under which a favored driver proceeding on a green light may be put upon notice that an unfavored driver will enter unlawfully.”

We think the instant case presents one of those rare instances in which the conduct of the favored driver was properly subject to a jury’s determination of its reasonableness and prudence under the circumstances. The principles spelled out in State v. Marvil Package Co., 202 Md. 592, 598, Greenfeld v. Hook and Sun Cab Co., Inc. v. Hall, both supra, are controlling. In Marvil the intersection was controlled by a blinker light, as in the case before us. Code (1957), Art. 66)4, Sec. 196, provides as to blinker lights:

“Whenever flashing red or amber signals are used they shall require obedience by vehicular traffic as follows:

“(1) Flashing red (stop signal).—When a red lens is illuminated by rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.

“(2) Flashing amber (caution signal).—When an amber lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with caution.”

Judge Sobeloff for the Court said in Marvil that the law in other States is that “a driver on a through street when approaching an intersection controlled by amber and red flashing signals must exercise a caution commensurate with the prudence of a reasonable man.” He continued:

“When the State has erected an amber signal to regulate traffic on a through highway, we think it not unreasonable to find its purpose is to exact from the users of a highway a caution higher than is to be expected in the absence of such a signal. So to hold does not diminish or render ineffectual the utility of the modern through highway. Nor does it mean that a user of the highway cannot assume that drivers will stop in compliance with stop signs. It means merely that one should not proceed through such an intersection oblivious to it. It does mean, as the statute plainly says, that an amber light is a warning to proceed cautiously, and if the facts show that an accident has occurred due to a failure to take heed of such an admonition, when a collision could have been averted by exercising caution, then liability may be imposed upon the user of the favored artery. While the driver on the main artery may ordinarily rely on the vehicle approaching from his right or left stopping as required by the red light, yet if the circumstances indicate that the approaching vehicle will not stop, then a duty arises on the part of the favored driver to avoid an accident if he can. He cannot proceed in complete disregard of obvious danger.”

There was evidence below which, if believed by the jury, would have permitted, without “nice calculations,” a finding that the Hurry car stopped at the intersection as the law requires and started across when there was no through traffic to which it was required to yield the right of way, that it traversed some twenty to twenty-five feet from a standing start and stood stalled under the blinker light for an additional five or more seconds before the collision, and that all during this time Mrs. Harper continued to approach at an undiminished speed without observing the road ahead and that when her passenger “hollered” that the Hurry car would hit them, Mrs. Harper did not even know another car was around and had to cry out “where,” just as the two cars hit.

Mrs. Harper had a duty, imposed by the flashing amber light, to proceed through the intersection “only with caution.” This, even on her own evidence, she did not do. She had the correlative duty, in the words of Marvil, “if circumstances indicate that the approaching vehicle will not stop * * *” to avoid the collision, if she could. The circumstances here not only indicated to the passenger in the Harper car, who did look, that the Hurry vehicle was going to enter the intersection but included one of the very things Greenfeld v. Hook said could endanger an unfavored driver who entered a boulevard without negligence, that is, “some defect in the motor” which prevented control of the car. As in the Sum Cab case, the favored driver, Mrs. Harper, according to the testimony of her passenger, was completely inattentive to what was ahead in the road because she was so busy talking she did not look until yelled at just before the then inevitable collision. Without any “nice calculations of time, speed and distance,” the jury could have found from all the testimony that if Mrs. Harper had kept a proper lookout she would have seen the Hurry car in its position of obvious peril in time to have avoided it by stopping, or otherwise. The rule that the favored driver is not made negligent by failing to look is not controlling because here Mrs. Harper would not have been entitled to rely on the usual assumption that the unfavored car would not come into the boulevard because of the evidence it already had come in and stalled.

The case of Baltimore Transit Co. v. O’Donovan, 197 Md. 274, 278, is to be distinguished on the facts, for the reasons it was distinguished in the Sun Cab case, namely, that in O’Donovcm the driver “had the right to assume that the other vehicle, in a place of safety by the grass plot, would remain there and yield the right of way,” not suddenly play jack rabbit and pull out into the through street. There was no amber “caution” requirement in O’Donovan, the driver of the favored vehicle was not inattentive, and the distance between the favored and unfavored cars was short when the latter pulled out and stalled. Thus, the proximate cause of the injury was the sudden unlawful intrusion of the unfavored car.

We think Mrs. Harper’s motions for a directed verdict and for judgment notwithstanding the verdict rightfully were denied.

The complaints as to the charge to the jury are that the court erroneously told the jury that a driver on a boulevard must decrease his speed at intersections and that if Mrs. Harper violated the “reasonable and prudent” speed limitation and her violation “directly or indirectly” caused the injury complained of, she was liable. The court read to the jury Code (1957), Art. 6Secs. 211 (a) and (e); (a) “No person shall drive a vehicle on a highway at a greater speed than is reasonable and prudent under the conditions then existing;” (e) driver must “decrease speed when approaching and crossing an intersection except through highways * * *.”

Before this reading the jury had been told of the obligations of the unfavored driver and the rights of the favored driver as to boulevards, and that the flashing amber light meant that Harper could proceed only with caution “but this does not mean at such reduced speed and with such care that the favored driver can stop instantly upon violation of its right-of-way but, rather, that the favored driver * * * must exercise caution with the prudence of a reasonable man * * *” and that if Harper approached with the caution commensurate with the prudence of a reasonable man under similar circumstances then she was not negligent. They were told after the reading of the statute that no person shall drive a vehicle on a highway at a speed greater than reasonable or prudent under conditions as they exist, and if they found that Harper “was driving her automobile in violation of said law and that such violation directly or indirectly caused the injury complained of” she was liable.

There came next an instruction that if there was concurrent negligence and the negligence of each person “was the contributing proximate cause of the injuries, then both of such persons are jointly and separately liable for any injuries proximately resulting from their negligence.”

We find no prejudicial error in the charge, considered as an entirety. Under the particular facts of the case the testing of whether due caution had been exercised by the favored driver necessarily embraced consideration of whether she properly reduced her speed, and the claim of incorrectness and inartificiality which the appellant levels at the phrase “directly or indirectly” (which under other circumstances might be justified) was refuted by the instruction as to proximate cause, following immediately in the charge, which clarified and limited the meaning of the challenged phrase.

The court refused to allow the State policeman who had investigated the accident (and who had in the course of his work investigated some three hundred prior accidents), to testify as an expert that in his opinion the Hurry car struck the Harper car. It is true, as the appellant urges, that an approved test as to the admissibility of expert opinion is whether the jury can receive appreciable help from the particular witness on the subject, not whether the jury can decide the particular issue without expert help. In Shivers v. Carnaggio, 223 Md. 585, 588, we quoted 7 Wigmore, Evidence, 3rd Ed., Sec. 1923, and McCormick, Evidence, Sec. 11, to that effect, with approval. It would not have been error to have admitted the proffered testimony but we think its refusal, assuming it to have been error, was not prejudicial. The passenger in the Harper car who watched the accident happen from a vantage point, testified flatly and with precision that the Hurry car plowed into the side of the Harper car. There were some ten photographs in evidence showing the damage to the two cars. The jury could have decided how the contact between the cars was made without expert testimony, and, while this fact does not preclude the admission of such testimony, it would seem to have considerable weight in deciding whether the refusal to admit the expert testimony was a prejudicial abuse of discretion. Cf. Christ v. Wempe, 219 Md. 627, 633, 634, and Empire State Insurance Co. v. Guerriero, 193 Md. 506, 514. Further, the striking by either car of the other could have been consistent with either the Hurry or the Harper version of how the two acted and re-acted in relation to the boulevard law, the decisive points in the case, particularly in view of the testimony that the Hurry. car eased ahead from the use of the starter, after it stalled under the blinker light.

In his argument to the jury, counsel for Mrs. Higgs listed on a blackboard the expenses incurred by her and her husband and then argued to the jury that the verdict in addition should include amounts for pain and suffering measured by so many dollars for each day of suffering (the duration and intensity of the pain suffered by Mrs. Higgs by reason of her very serious and permanent injuries had been testified to in detail by her and her doctors). For example, he suggested a valuation of $500 a day for the first week and $100 a day for the next four months, and so on. Mrs. Harper’s counsel moved for a mistrial when the argument was begun and again when the suggested total figure of $77,795.00 was put on the blackboard. At that point the trial judge told the jury the suggestions and illustrations of plaintiff’s counsel were no more than part of his argument and that his method of arriving at what he thought was an appropriate verdict was in no way binding on them, and that it was their function and theirs alone to award such damages as they found proper under the law and the evidence.

The propriety and legality of the so-called per diem argument as to damages has been the subject of extensive judicial consideration in recent years. In 1958 the Supreme Court of New Jersey changed its previous views and held the argument improper in Botta v. Brunner, 138 A. 2d 713. Delaware, Virginia, Missouri and Wisconsin later followed suit. Pennsylvania had long disapproved of the practice.¹

The majority of the States, it would appear, permit such arguments. See annotation in 60 A. L. R. 2d 1347, entitled “Per Diem or Similar Mathematical Basis for Fixing Damages for Pain and Suffering;” O’Connor, “Some Anti-Biotic Thoughts in an Anti-Botta World,” Daily Record, February 4, 1961, and Louisville & Nashville Railroad Co. v. Mattingly (Ky.), 339 S. W. 2d 155, 161. The arguments pro and con are well summarized and discussed in Ratner v. Arrington (Ct. App. Fla.), 111 S. 2d 82.²

The subject was a topic of discussion at the Maryland Judicial Conference of 1960. It appeared that the per diem form of argument was allowed by most of the trial judges of the State but not by all, and that where it was allowed, cautionary instructions were given the jury that argument was not evidence and they alone must determine the proper verdict. Generally the argument had to be made in the opening speech of counsel for the plaintiff; if made in the closing argument, the defendant was permitted to rebut it. Some of the trial judges felt that the “oversized,” if not astronomical amounts built up and claimed under the per diem formula defeated their own purposes and caused the jury to react so as to bring in a lower verdict than they would have otherwise.

We find no need to decide the question in this case. There is no claim in Mrs. Harper’s brief that, if she were liable at all, the verdict was excessive, or even large, and certainly no showing in the record that it was. Her counsel frankly stated at the oral argument that in view of the very painful and serious injuries and their drastic permanent effects, the verdict was not excessive. If we assume without deciding that the argument was improper, we see no prejudice to have resulted from its use. The amount claimed was over $77,000. The jury’s verdict was less than a third of this. Compare Imperial Oil, Ltd. v. Drlik (6th Cir.), 234 F. 2d 4, 11, cert. denied 352 U. S. 941, 1 L. Ed. 2d 236, in which a calculation by a judge in the manner argued for by Mrs. Higgs’ counsel was held to be at the most harmless error since the verdict was not excessive.

Judgments affirmed, with costs.

1 . Henne v. Balick (Del.), 146 A. 2d 394, 398; Certified T. V. and Appliance Co. v. Harrington (Va.), 109 S. E. 2d 126, 131; Faught v. Washam (Mo.), 329 S. W. 2d 588, 603; Affett v. Milwaukee & Suburban Transport Corp. (Wis.), 106 N. W. 2d 274, 279; Goodhart v. Pennsylvania Railroad Co. (Pa.), 35 A. 191 (1896).

2 . The arguments against allowance of the per diem argument include: there is no evidentiary basis for converting pain and suffering into monetary terms; to suggest monetary equivalents for pain and suffering amounts to the giving of testimony or the expression of opinions not disclosed by the evidence; juries frequently are misled into the making of excessive awards, and admonitions of the trial court that the argument is not evidence does not erase the prejudice; the defendant is put at a disadvantage by being required to rebut an argument having no basis in the evidence.

The arguments for allowing the per diem formula include: it is necessary that the jury be guided by some reasonable and practical considerations; a trier of facts should not be relegated to a guess; the very absence of any evidentiary yardstick makes the contention that counsel’s suggestion mislead the jury highly doubtful; the argument does no more than present one method of reasoning which the trier of the facts may employ to aid him in making a reasonable and sane estimate; that the argument is not evidence but only illustration or suggestion and that the claimed danger that it will be mistaken for evidence is not only exaggerated but is dispelled by the court’s instructions on the point; and, finally, that when counsel for one side has made such an argument the opposing counsel is equally free to suggest his own amounts from the same evidence available to plaintiff’s counsel.