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Folck v. Anthony

Decided: March 15, 1962.

FOLCK
v.
ANTHONY



Appeal from the Superior Court of Baltimore City; Oppenheimer, J.

Henderson, Prescott, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court.

Horney

The novel question presented by this appeal by a plaintiff against whom the jury found is whether a stop sign erected at or near a corner of intersecting streets requires a pedestrian to stop and yield the right of way to vehicular traffic approaching on the through street before entering a crosswalk at an uncontrolled intersection.

The accident which gave rise to this tort action occurred in or near one or the other of two street crossings at the intersection of Belair Road (road) and Eierman Avenue (avenue) in the City of Baltimore. The road extends generally north and south. The avenue, an east-west street, ends at the west side of the road, which is a six-lane boulevard or through street with three lanes of traffic in each direction. Neither of the crossings (or crosswalks) on the road was marked by lines or otherwise to indicate that they were pedestrian crossings. And there were no mechanical traffic signals at the intersection. There was, however, a stop sign facing west at the southwest corner of the intersection and another facing east outside of the intersection near the northeast corner, but there was none at either of the other corners.

In the early evening of September 4, 1959, the plaintiff (Howard Folck) walked from the back of his home, down the alley which intersects the east side of the road (at a point approximately opposite the north sidewalk on the avenue), crossed the road and went to a tavern on the north side of the avenue to buy beer. After purchasing a jug of beer, the plaintiff began to return by walking east along the north side of the avenue. When he reached the west side of the road, he looked both left and right and, seeing no vehicular traffic, started across the road in the northerly crosswalk formed by the prolongation of the lateral lines of the sidewalk on which

he had been walking. As he reached the middle of the road he saw an automobile to his right traveling in a northerly direction and stopped to allow it to pass. But before it passed him, the plaintiff was knocked down and rendered unconscious by an automobile operated by the defendant (James M. Anthony) traveling in a southerly direction on the west side of the road. The plaintiff did not see the southbound vehicle. Nor did he hear any warning of its approach. The defendant, who was slowing down to make a left turn into Shamrock Avenue, applied the brakes when he saw the plaintiff and turned the steering wheel to the right. He stopped almost immediately, but could not avoid colliding with the plaintiff. The evidence was conflicting in some respects. According to the defendant, the plaintiff was outside of the southerly crosswalk instead of in the northerly crosswalk. The defendant also testified that when he saw the plaintiff, he was backing, without looking, into the path of the defendant's automobile instead of standing still.

In the instructions, the trial judge advised the jury generally with respect to primary and contributory negligence and as to the respective burdens of proof of each of the parties, and then specifically informed the jury that the stop sign placed at the southwest corner of the intersection applied to pedestrian traffic as well as to vehicular traffic and, by way of explanation, stated "that means that before a pedestrian enters the Belair Road at this intersection he must use due care to see that there is no oncoming vehicle, such as this one [the defendant's], and in the exercise of that due care he should stop before he proceeds to cross." And, although the jury was further informed as to the reciprocal duties of care that each party owed to himself and to the other party, the judge declined to instruct the jury, as prayed, to the effect that the plaintiff had the right of way at the street crossing he had entered and was standing in when he was struck by the defendant.

On appeal, the appellant contends in effect that the stop sign did not restrict the right he had over vehicular traffic at the crossing in which he was injured, and that the court also

erred in refusing to give an instruction as to the doctrine of last clear chance. On the other hand, the appellee, besides a contention, with which we agree, that the last clear chance doctrine has no application to the facts of this case, further argues that the exceptions the appellant took to the instructions do not raise a question on this appeal with respect to his being entitled to a right of way instruction. We are unable to agree. For when the instructions prayed for -- even though they were stated in the negative -- are read together, we think they were sufficient to inform the judge that he was seeking a right of way instruction. And, having excepted to the refusal of the lower court to grant the requested instructions, the plaintiff thereby raised a question for this Court to review.

The question thus presented is whether the lower court erred in advising the jury that a stop sign applies to pedestrian as well as vehicular traffic and in not informing the jury that the pedestrian was entitled to the right of way at the crosswalks on the through street. But the more basic inquiry is whether the Legislature intended to abandon the fourteen year old rule of the road that a stop sign applies only to vehicular traffic, and substitute therefor a new rule to the effect that a stop sign should apply to pedestrian as well as vehicular traffic: the theory being that such an intention was expressed when the Legislature, at the time it added the second exception ("traffic-control devices") to the rule giving a pedestrian the right of way at street crossings, further stipulated that a "stop sign" was one of several other devices named in the statutory definition of "official traffic-control devices." We think there was no such legislative intent.

Three sections of the motor vehicle laws -- Code (1957), Art. 66 1/2, ยงยง 193, 194 and 236*fn1 -- specifically concern the rights and duties of a pedestrian when using a public street or highway. Of these, only one section directly concerns the remaining question in this case, but there are other sections, as will be seen, which have a ...


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