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Baltimore Transit Co. v. Presberry

Decided: January 16, 1964.


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

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


These three appeals in one record are from judgments rendered in consolidated cases alleging negligence in a collision between a bus and an automobile. At 9:30 P.M. on September 28, 1958, the bus, driven by Butler, was proceeding south on Maryland Avenue, in the second lane from the west curb. When more than halfway through the intersection of Mt. Royal Avenue it struck a 1951 Hudson owned and driven by Beulah Cavan travelling east on Mt. Royal Avenue. Maryland Avenue is one way southbound, 38 feet wide, with four traffic lanes; Mt. Royal is 73 feet wide having three lanes east and three west with a median strip three feet wide. The point of impact was fixed at 48 feet south of the north curb of Mt. Royal Avenue and 17 feet east of the west curb of Maryland Avenue. The car was struck on its left side and knocked sideways by the impact about 20 feet. The intersection is controlled by traffic signals. When the light is green for traffic one way it is red for the other, and vice versa, the pattern being green-amber-red and back to green. There was no evidence as to the time intervals.

In one suit, Presberry, a passenger on the bus, sued the Transit Co., its driver Butler, and Mrs. Cavan. Mrs. Cavan and her cousin Gentry, a passenger in her car, in separate counts sued the Transit Co. and Butler. The Transit Co. counterclaimed for stipulated damage to its bus against Cavan. At the conclusion of all the evidence the court denied motions for directed verdicts and the jury returned verdicts in favor of Presberry against the Transit Co. and Butler; and in favor of Cavan as defendant in that case; in favor of both Cavan and Gentry against the Transit Co. and Butler; in favor of Cavan in the claim against her by the Transit Co. On motions for judgment N.O.V. the court denied the motions in the Presberry

and Gentry cases and in the Transit Co. counterclaim, but granted the motion in the Cavan case on the ground of her contributory negligence. The court declined to enter a joint judgment against Cavan in the Presberry and Gentry cases.

The Transit Co. contends that there was no legally sufficient evidence to establish negligence on the part of its driver, or conversely, that the evidence clearly established that negligence on the part of Mrs. Cavan was the sole proximate cause of the accident. The law is clear that the mere fact that Mrs. Cavan had a green light did not relieve her from the duty of giving way to vehicles already lawfully in the intersection. Valench v. Belle Isle Cab Co., 196 Md. 118, 123; Code (1957), Art. 66 1/2, sec. 193; Note, 13 Md. L. Rev. 350. It is equally clear that, if she had a green light, she was not obliged to anticipate that another vehicle would enter unlawfully against a red light. Eastern Contractors v. State, 225 Md. 112, 121. On the other hand, if the bus driver entered on a green light, he had a right to continue across and complete the passage even as against vehicles having a green light. Eisenhower v. Balto. Transit Co., 190 Md. 528, 534, and cases cited.

The bus driver testified he was in the middle of the intersection when he saw the car entering. He had entered on a green light, and at a speed of from 10 to 15 m.p.h. Coleman, a bay pilot who was on the sidewalk, corroborated Butler's statement. He testified that he did not observe the lights until he heard the crash, but saw then that the light was green and did not change to red, for traffic going south on Maryland Avenue, until 10 seconds after the crash. Presberry, the only passenger on the bus, did not observe the lights, or see the car before the collision. He testified the bus was going at a normal rate of speed.

Mrs. Cavan testified she stopped about two car lengths short of the intersection to let her former husband out. The light was red at that time. The light turned green and she went on. Later, she said it changed as she started toward the intersection. She did not see the bus until after she was in the intersection, at which time she was travelling at about 15 m.p.h. In cross-examination she said the light turned green when she was "three or four feet" from the intersection. When recalled

she said she did not know when the light turned, but only knew it was green when she entered the intersection. Mr. Cavan testified that after he got out of the car, about two car lengths from the intersection, he followed the car down to the crossing, instead of going through the cars parked at the curb. He observed that the light was green when the car entered the intersection. He had not looked at the light before. Gentry, who was sitting in the front seat, testified the light was red when they let Mr. Cavan out. He saw the light turn green "when we went to pull out." He also said: "after I looked at the green light we started through and I happened to glance across * * * and he was right on top of us." He later testified he saw the light change while the car was stopped.

The appellees rest their entire case upon a mathematical calculation designed to show that the bus entered the intersection on a red light despite the direct testimony to the contrary. The fallacy in the argument is that it is based upon a false premise. It is undisputed that the bus travelled 48 feet from the curb to the point of impact while the car travelled 17 feet from the curb to the point of impact. At anything like the same relative speeds, the bus was first in the intersection. If both vehicles were travelling at 15 m.p.h. the bus would have been at the center of the intersection when the car entered, as Butler testified. The appellees seek, however, to select portions of the testimony of Mrs. Cavan and Gentry, to bolster an inference that the bus entered on a red light.

What was said by Judge Markell, for the court, in Kaufman v. Baltimore Transit Co., 197 Md. 141, 145, is apposite here: "But if any witness's testimony is itself so contradictory that it has no probative force, a jury cannot be invited to speculate about it or select one or another contradictory statement as the basis of a verdict. Eisenhower v. Baltimore Transit Co., [supra], * * *. Testimony at the trial which is later corrected by the witness cannot go to the jury as against the later correction." See also U. S. F. & G. v. Baking Co., 172 Md. 24, 33 and Olney v. Carmichael, 202 Md. 226, 232. Mrs. Cavan's last, and corrected, ...

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