# Shriner v. Mullhausen > Court of Appeals of Maryland · May 8, 1956 · 210 Md. 104 URL: https://www.frixlaw.com/law-library/cases/9755140 ## Case - **Full name:** SHRINER Et Al. v. MULLHAUSEN Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** May 8, 1956 - **Citations:** 210 Md. 104; 122 A.2d 570 - **Precedential status:** Published - **Opinion:** Dissent by Hammond - **Judges:** Bruñe, Delaplaine, Collins, Henderson, Hammond - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755140 ## Opinion text Hammond, J., filed the following dissenting opinion. The Court has applied the statute requiring one coming from an unpaved or private road or driveway onto a paved public highway to stop and yield the right of way to all Vehicles “approaching” on the paved public road as if it imposed exactly the same obligations and granted the same privileges as does the boulevard stop law, both as to the unfavored and the favored driver. The majority opinion trans *121 plants into the private road statute all of the heavy gloss that has been put, case by case, upon the words of the boulevard stop law. The boulevard law was designed to accelerate and keep moving uninterruptedly the flow of traffic on main, heavily travelled arteries. Much of the language relied on in the present case was said originally in cases involving flat, straight twin ribbons of concrete, which, as to civil liability, have been made in effect legalized raceways on which the favored driver may rely almost absolutely on the presumption that no one approaching the boulevard will enter it. To apply this concept — particularly as far as the favored driver is concerned — to the shell roads of the tidewater counties (the private road statute specifically includes shell roads) and the uphill and down dale winding country roads of Garrett County or Carroll County, on which the ordinary right of way rules apply as to intersecting public roads, I think is both unwarranted and unfortunate. The instant case would seem to be typically one where the jury should have been allowed to decide the negligence of both drivers. The result of the opinion of the majority is to make one entering a paved highway from a private road guilty of negligence as a matter of law if he fails to yield the right of way to an approaching vehicle although he cannot see it and although he could reasonably anticipate that if a vehicle is approaching, it would be able to avoid contact with him if it were within the control of its operator. Thus the word “approaching” in the statute is given an extended meaning for which I see no justification. As the Supreme Court of Wisconsin, in interpreting a statute entirely similar to the Maryland statute, said in Heinecke v. Hardware Mut. Cas. Co., 58 N. W. 2d 442 : “If applied literally, the above statute would lead to absurd results. No driver could enter a public highway from a private driveway if another car was approaching. The statute does not limit the term ‘vehicles approaching’ to those in sight.” In Ness v. Males, 201 Md. 235 , the unfavored driver entered a boulevard at a point where the visibility to the left, because of a hill and curve, was only two hundred feet. Judge Henderson, in speaking *122 of the unfavored driver, said for the Court: “* * * he could hardly be held negligent in entering and making the turn when the way was clear as far as he could see. The obligation to yield the right of way could hardly demand that he remain there permanently or enter at his peril.” In the present case, under the testimony most favorable to the driver of the tractor, he could see a distance of some four hundred feet — concededly three hundred feet — as he entered the public road. When he did so there was nothing in sight and nothing came into view until he was half way across. The majority argued that he should have watched the further hill to see if traffic was approaching the nearer crest. This ignores the difficulty of estimating how long a car already hidden would remain hidden, as well as the significant fact that a car might enter the road from a hidden intersecting road. One of the witnesses, Dr. Kable, did exactly this. I think the question of the negligence of the tractor driver was for the jury. Particularly does it seem to me that the negligence of the driver of the automobile, Mrs. Shriner, is a question for the jury. The Court holds that when she saw the tractor and manure spreader going across and up the road when she was some three hundred to four hundred feet away, she was confronted with an emergency that was legal justification for everything she did or failed to do thereafter. She was as far away from the tractor and manure spreader when first she saw, or should have seen, it as an average, or long, city block, depending on which estimate of distance is believed. To me it borders on the fantastic to say that a driver of a car going forty-five miles an hour — her own estimate of her speed- — cannot stop in the length of a city block, or that he is excused from stopping because he bungles the attempt when he has ample opportunity to do so. The effect of the holding of the majority is that one who rounds a corner or comes over a hill and sees a red light a block away, may be permitted to go into a panic and lose control of his car without legal liability. Suppose, for example, that the private road in this case had been an intersecting public road and the exact factual situation had been present as was *123 present here. What possible justification could there be for holding that Mrs. Shriner was not obligated to be able to stop within a block from the intersection of the public highways occupied by another vehicle. On the day of the accident the road was dry. Visibility was good. The downgrade was described as slight. The pamphlet published by the Department of Motor Vehicles containing the Motor Vehicle Laws of Maryland, 1955 edition, gives a table of speed and stopping distances prepared by the National Bureau of Standards, which shows that at a speed of forty-five miles an hour under favorable conditions, the reaction time is 33 feet, the braking distance is 135 feet, and the aggregate stopping distance is 168 feet. Similar calculations have been made, using reaction times from the slowest to the speediest, and the shortest stopping distance at forty-five miles an hour is 129 feet, and the greatest is 179 feet. The evidence is uncontradicted that by the time Mrs. Shriner hit the tractor (after laying down skid marks one hundred and fifty feet long and jumping a wall), her lane of the roadway was open so that she easily could have passed to the right of the rear of the manure spreader. Even after she had knocked the manure spreader back two feet, it was still only three feet over on her side of the road. The paved road was twenty-one feet wide — her half was ten and a half feet — and in addition, there was a six foot dirt shoulder on her side so that prior to the collision, there were fifteen and a half feet of roadway on her side on which to pass. The majority opinion says that “she could not see the condition of the six foot shoulder at the intersection”. Presumably the six foot shoulder at the intersection was the same as it was all along the roadway, and if her eyesight justified the granting of a driver’s license there would seem to have been nothing whatever to have kept her from seeing the condition of the shoulder. It is clear to me that the jury could have found that had Mrs. Shriner had her car under control and had she not gone into a panic and lost control, either she could have come to a complete stop or have slowed down and passed to the right of the manure spreader. There was testimony that Mrs. Shriner herself, immediately after the accident, said that *124 when she came over the hill, the car went out of control and she hit the tractor, and that is all she remembered. That statement should be sufficient to take the question of her negligence to the jury. Coastal Tank Lines v. Carroll, 205 Md. 137 , relied on in the majority opinion, is completely distinguishable. There, there was a real emergency, not one largely in the mind of the driver as in the case before us. There the accident followed the sudden entry into a boulevard of an automobile “* * * which collided with a stake body truck proceeding down the Highway just ahead of the tractor-trailer.” There, “The driver of the Coastal truck said that he attempted to go over the curb because there was not room left in the road proper to pass the convertible.” As this happened, the Coastal truck was only twenty-five or fifty feet behind the stake body truck. “The driver could not pass to the left of the convertible, * * *. He had the alternative of striking the convertible and perhaps injuring or killing the passengers or attempting to avoid it.” He did all that anyone could reasonably have done under the circumstances and failed in his attempt to clear the vehicle ahead because the striking of the curb caused his truck to go out of control. There is no comparison between the real need there for sudden action and the situation in the case before us, where there was ample time to make an orderly stop or an orderly passage by the obstructing vehicle. In granting the favored driver on an ordinary public highway the same privileges and immunities, in relation to one coming from a private road, as a driver on a boulevard has in relation to drivers entering the boulevard, the majority of the Court decides that Mrs. Shriner was not speeding and that even if she were, it would not affect her liability. It seems to me that there was evidence from which the jury could have found that she was speeding. Dr. Kable testified that she was going the speed limit, or better. This statement, coupled with the fact that she laid down skid marks on all four wheels for a distance of one hundred fifty feet, and even after that reduction of speed, was going fast enough to climb a wall, break the axle of a heavy tractor and knock it and the manure spreader back two feet, is enough to per *125 mit a finding of excessive speed. The holdings in the boulevard cases that the speed of the favored driver is not the proximate cause of accidents occurring when the boulevard is invaded by an unfavored driver, are all predicated on the principle that the favored driver must use due care, but that an element of due care in such a situation is the right to assume that one will not enter a boulevard when traffic is approaching. As has been said time and again, the assumption that the unfavored driver will stop and yield the right of way is an important measure of whether due care was exercised. Even in the boulevard cases — as certainly should be the rule in the present case — when it becomes obvious that the unfavored driver has not stopped and yielded the right of way, but actually is in the intersection in time for the favored driver to stop or otherwise avoid him, the question of the negligence of the favored driver is a jury matter. Greenfeld v. Hook, 177 Md. 116 ; Sun Cab, Inc. v. Hall, 199 Md. 461 . In the instant case, when Mrs. Shriner came over the hill an average, or long, block away from the intersection, the tractor and manure spreader were well across the road. No presumption that the favored road would not be invaded could be relied on, for the favored road had already been invaded. At that point Mrs. Shriner could not know whether the invasion had come from a private road or another public road. The sole question to be decided is whether Mrs. Shriner was far enough away to stop if her car were being operated under reasonable control. The effect of the majority holding is that a driver on an ordinary country road can speed with impunity even though he has no right to assume, as far as the intersecting public roads are concerned, that no one will enter the road on which he is driving. Mrs. Shriner testified that she was familiar with the road, that she knew there were many private roads and driveways entering upon it and of course she knew she was coming up over a hill. In Ness v. Males, supra, Judge Henderson said for the Court in a situation that is similar, that the jury properly might have found the favored driver was at fault “* * * not for relying upon his right of way, but for driving at high speed over a hill and around a curve *126 where he knew the visibility was limited * * I think that it was wrong, both legally and factually, to treat the case before us as if it had happened on a boulevard and to make the boulevard law apply in all aspects to ordinary roads merely because the accident occurred near a private driveway. Even under this standard, the facts of the case before us would make Mrs. Shriner’s negligence a jury question on the authority of Sun Cab, Inc. v. Hall, supra. There the invasion occurred when the favored driver was a third of a block away. Here the invader was well across the intersection when the favored driver was a block away. I would remand the case for a new trial on proper instructions to the jury. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755140. Public record. Not legal advice.