text:
    ROBIN EXPRESS TRANSFER, INC. v. CANTON RAILROAD COMPANY
    [No. 467,
    September Term, 1974.]

      Decided May 28, 1975.

      The cause was argued before Moore, Lowe and Melvin, JJ.

      Stanley B. Rohd, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellant.

      Robert L. Ferguson, Jr., with whom were Donald C. Allen and Allen, Thieblot & Alexander on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal arises out of a collision which occurred at approximately 4 a.m. on September 29, 1972 at a railroad crossing on North Point Boulevard in Baltimore County, involving a locomotive owned by appellee, Canton Railroad Company (Canton), and a tractor-trailer owned and operated by appellant, Robin Express Transfer, Inc. (Robin). Canton filed suit against Robin based upon negligence in the truck’s alleged failure to stop for a red traffic signal. Robin filed a counter-claim against Canton alleging that the railroad was negligent in failing to maintain the automatic signals in properly functioning condition. The case was submitted to a jury in the Circuit Court for'Baltimore County (Raine, J., presiding) on two issues calling for a determination of whether there was negligence on the part of Canton or Robin, or both. The jury found that both parties were guilty of negligence contributing to the happening of the accident. A motion by Robin for a new trial was denied. The trial court, however, granted Canton’s motion for judgment n.o.v., entering judgment in favor of Canton for $6,293.55 on its own claim and also in favor of Canton on Robin’s counterclaim. From this judgment Robin appeals, seeking a reversal and reinstatement of the original jury verdict.

I

The accident occurred at a point where Canton’s single track railroad, running east and west, intersected with North Point Boulevard (State Route 151), a major traffic artery consisting of two northbound and two southbound lanes separated by a 34 foot wide grass median. The posted speed limit was 55 miles per hour. At the intersection of the highway and the track there were two crossarm signals. There were also yellow and black railroad crossing signs located on North Point Boulevard approximately 300 feet north and south of the crossing. The most important signal system, however, and the focal point of Robin’s allegations of negligence, consisted of four automatic traffic signals, one over each northbound and southbound lane of traffic, controlled by an electrically wired system connected to the railroad tracks.

These traffic signals were designed to remain green for vehicular traffic on the Boulevard and change from green to yellow to red when a train approached the crossing from either direction; and to stay red until the entire train had proceeded completely beyond the intersection. Three fully independent, battery-powered circuits controlled three separate sections of the railroad track circuit IT controlled that part of the track between a point about 220 feet west of the highway and a point about 26 feet west of the highway; circuit 3T controlled a like section of track east of the highway; circuit 2T spanned the area from 26 feet from the edge of the road on either side of the intersection, including the entire part of the track crossing the north and south roadbeds of the Boulevard.

When a train approached from the west it would, at a point about 220 feet from the first southbound lane of the road, complete the circuit (IT) by contact with the rails which were wired to a battery. The battery well was located approximately 10 feet from the tracks with wires running underground and emerging at the tracks in an electrical connection. By shorting the circuit the train activated the four traffic signals to change from green to yellow to red. Simultaneously with the traffic signal turning red, the circuit activated a separate signal — visible only to the train and located on a pole about 20-30 feet from the intersection — causing it to change from red to green, thereby indicating to the train engineer that it was safe to enter the intersection.

This process whereby the highway traffic signal turned red (and the train signal turned green) took approximately 5 seconds from the train’s first contact with the wired track, according to testimony by Canton’s mechanic.

Finally, as a safety measure, the system was so designed that if a battery went dead or lost its voltage the system would “fail-safe” by causing the vehicular traffic signals to turn red and remain red. This had been observed to happen occasionally in the past.

Just before the accident the Canton train, pulling nine freight cars, was proceeding eastward toward the intersection with North Point Boulevard, as it did about three times a week. It had rained previously and the weather was still “misty” but the engineer said that visibility was good. As the train approached the road the engineer testified that he sounded the bell (air operated) when he was 50 to 60 feet away from the road, that the bell remained on continuously and that the horn was blasting up to the time of impact. The double headlights were on, mounted on the top part of the locomotive and affording illumination “at least a half a block.” In addition, the locomotive’s “ground lights” were operating which “shine down to the ground and takes and shows [sic] the whole lower part of your locomotive.” The engineer also testified that he noticed that the signal light for the train was red and did not turn green until the train was 10-15 feet from the signal pole, or about 30-40 feet from the road. The train was at that point traveling at 2-3 m.p.h.

When the signal light turned green the engineer said that he also saw, by the reflected light, the Boulevard traffic signal turn from green to yellow to red. At that time he began to release the brake and the train accelerated somewhat to about 4 m.p.h. as it reached the road.

In the meantime, the tractor-trailer, proceeding northbound from Sparrows Point toward Baltimore in the inside lane, was also approaching the intersection and its headlights were seen by the engineer and his helper in the cab of the locomotive. The truck was then “several hundred feet away” and they assumed it would stop. The truck continued, however, and collided with the 250,000 pound locomotive in the last northbound lane of the Boulevard. The engineer and his helper described it as a “terrible impact” which “raised up” the cab, throwing the crewmen to the floor. When the engineer arose, he threw the emergency brake, stopping the train about 168 feet east of the point of impact. The helper estimated that at the time of impact the train was going 10-12 m.p.h. There was no testimony as to the truck’s speed but the investigating officer, William Pulaski of the Baltimore County Police Department, called as a witness by Robin, testified that there were no skid marks. The driver of the truck was fatally injured and the only eyewitness testimony of the collision came from the train crewmen.

Officer Pulaski testified that he arrived on the scene at 4:07 a.m., approximately seven minutes after the accident. The traffic lights governing vehicular traffic were red. He gave the dimensions of the median, the traffic lanes and shoulders as 34 feet, 12 feet and 8 to 10 feet, respectively. Over Robin’s objection, he was permitted to testify on cross-examination, that in making his initial report he found no improper action on the part of the railroad and that the cause of the accident was the violation of the traffic signal by the tractor-trailer operator.

Over Canton’s objection, the police officer was also permitted to testify on direct examination concerning observations made by him of an apparent malfunction of the traffic control system, some eight hours after the accident, at the end of his tour of duty. As he was driving northbound on North Point Boulevard he observed a train coming in the same direction (from west to east) as the train involved in the collision. He stopped his car in the median to watch the operation of the traffic signals. As the train came close to the Boulevard, the vehicular traffic signals remained green. The train stopped and let off a flagman. The officer got out of his car and, along with the flagman, stopped the automobile traffic on the Boulevard. The officer testified that “as the train passed and cleared the northbound lanes of Route 151, North Point Boulevard, it went approximately 250 feet and hit the switch on the west [sic] side of the roadway before the. light changed red for the traffic on North Point Boulevard.”

The trial judge, in his memorandum opinion granting Canton's motion for judgment n.o.v., stated that this testimony of the police officer was “the only evidence to suggest that the light was not properly functioning at the time of the collision” but that it should not have been admitted. It was held:

“The Court believes that the condition of the automatic signal system is of a transitory or changeable nature, and that the condition of the signal seven or eight hours after the accident is circumstantial and too speculative, and should not have been admitted. At best it amounted to a mere suggestion that a wire might have become disconnected that ran from the battery well to the track. The uncontradicted evidence is that whenever a battery dies or loses its voltage the automatic traffic signal is designed to cause the light for vehicular traffic to remain red, and the only prior complaints about the traffic signal system not functioning properly concerned traffic being held up by a red light when no train was in the area. It is far more rational to conclude that the subsequent malfunction that the officer observed was caused in some manner by the impact on the locomotive and the tracks, rather than to infer that the system was malfunctioning at the time of the accident. This is particularly true when you consider the officer’s testimony that when he first arrived on the scene the light was red when the locomotive had not yet reached the point where the officer observed the light turn red at the later observation.” (Emphasis added.)

II

The ultimate question for our determination on this appeal is whether the trial court erred in granting Canton’s motion for judgment n.o.v. The settled rule is that in our appellate review of the trial court’s action we must assume the truth of all credible evidence and of all inferences fairly deducible therefrom and consider the same in the light most favorable to the party against whom the motion is made; and if such evidence and inferences lead to conclusions with which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury. Newton v. Spence, 20 Md. App. 126, 316 A. 2d 837 (1974); Montgomery Ward & Co. v. McFarland, 21 Md. App. 501, 319 A. 2d 824 (1974); Miller v. Michalek, 13 Md. App. 16, 281 A. 2d 117 (1971), citing Belleson v. Klohr, 257 Md. 642, 646, 264 A. 2d 274 (1970).

The police officer’s testimony concerning the malfunctioning of the traffic signals eight hours after the collision is a classic illustration of circumstantial evidence. From such evidence, Robin urges that the jury might legitimately infer a system disorder at the time of the accident, probative on the issue of Canton’s alleged negligence. It contends that the circumstantial evidence was properly submitted to the jury and, in effect, improperly withdrawn from the jury upon the granting of the motion for judgment n.o.v.

This argument, however, betrays a fundamental misconception of the respective functions of court and jury where the sufficiency of circumstantial evidence is involved. See generally, Harper and James on Torts, Vol. 2, §§ 19.3, 19.4. It is the function of the court, in the first instance, to decide whether the inference of negligence is legitimate or permissible. If the decision is “no” the evidence should be withheld from the jury. Contrariwise, if the decision is “yes,” the evidence should be submitted to the jury for its evaluation of the force of the inference of negligence. This is so because, as Horney, J. observed in Short v. Wells, 249 Md. 491, 240 A. 2d 224 (1968), “The value of circumstantial evidence depends on the strength and genuineness of the inferences to be drawn therefrom.” The fundamental difference in the functions of the court and jury and the test for determining whether the evidence should be submitted to the jury are in Short v. Wells, succinctly defined (pp. 495-6):

“The court makes the initial determination on the basis of whether the inference of negligence, as a generalization, is more probable than not,”
Then, if the court “decides that the inference is permissible”
“[I]t should submit the evidence to the jury to finally determine whether the inference of negligence is more probable than not in that particular case. ” (Emphasis in original.)

Similarly, in Prosser on Torts, 4th Ed., p. 212, the author explains:

“The inference must cover all of the necessary elements of negligence, and must point to a breach of the defendant’s duty. The mere fact of the presence of a banana peel on a floor may not be sufficient to show that it has been there long enough for reasonable care to require the defendant to discover and remove it; but if it is ‘black, flattened out and gritty,’ the conclusion may reasonably be drawn. It is for the court to determine, in the first instance, whether reasonable men on the jury may draw it.”

Accordingly, we must reject appellant’s contention that the trial court in the instant case invaded the province of the jury. We think the court correctly characterized as “circumstantial” the condition of the signal approximately eight hours after the accident; and that when the court stated “it is far more rational” to conclude that the malfunction observed by the officer was caused in some manner by the impact, it was effectively deciding in the negative the question of whether the inference of negligence was more probable than not. This constituted the exercise of a proper judicial function. The decision was amply supported.

Furthermore, we find misplaced appellant’s reliance upon Stitzel v. Kurz, 18 Md. App. 525, 308 A. 2d 430 (1973). This was a one-car accident case wherein the parents of a deceased passenger brought suit against the driver and against Baltimore County. The basis for a claim of negligence against the County was that it had erected an incorrect road sign which had misled or confused the driver. The sign, as originally erected on May 1, 1970, showed a curve in a direction opposite to the direction of the actual curve. This Court, in an opinion by Judge Powers, held that the trial court erred in directing a verdict for the County. We stated (p. 538):

“When it is shown that a condition existed at a certain time, and the condition is one which by its nature is relatively permanent, rather than transitory or changeable, it is rational to infer that the same condition existed before and after the time shown, for a length of time reasonably consistent with the circumstances, unless there is evidence from which a change in the condition could reasonably be inferred.
“The jury could properly have found in this case that the sign was erected incorrectly by Baltimore County on 1 May 1970 and remained that way until it was corrected on 5 October 1970. It follows that the evidence was sufficient to permit the jury to find that Baltimore County was negligent and that its negligence was a proximate cause of the injury. It was error to direct a verdict for Baltimore County.”

The crucial language in the statement of law above quoted begins with the words, “and the condition is one which by its nature is relatively permanent, rather than transitory or changeable.” The trial court, perhaps in contemplation of the rule so well stated in Stitzel, found that “the condition of the automatic signal system is of a transitory or changeable nature” and one likely to be affected by the enormous impact created by a collision between a 250,000 pound locomotive and tractor-trailer. In our judgment, he was correct. The difference between a stationary traffic sign as in Stitzel and an electrically operated signal system as in this case is, we think, very obvious.

Our conclusion that the trial court was correct in holding inadmissible Officer Pulaski’s testimony concerning his observation of a signal malfunction some eight hours later is not, however, dispositive of this appeal. Appellant contends that there was other evidence sufficient to permit the jury to find that Canton was negligent.

In this respect appellant relies upon the following testimony:

(a) Mr. Cragnelli, and his helper, Mr. Jackson, testified that the locomotive was approximately 30 feet from the Boulevard when their light changed from red to green. (As previously stated, the first circuit was at a point 220 feet west of the Boulevard and, if the system was functioning as designed, the locomotive would have been approximately 190 feet, rather than 30 feet, west of the southbound lane when the signal guiding the train turned green);
(b) Officer Pulaski testified that in taking measurements at the scene immediately after the accident, he observed the battery well for circuit IT but did not see any wire connected to the track. (This testimony contrasted with that of Walter H. Phipps who was employed by the railroad as a master mechanic and testified for the appellant as an adverse witness. Mr. Phipps stated that all wires were connected to the tracks when he inspected them later that day);
(c) the testimony of Mr. Phipps that on the day after the accident he attempted, unsuccessfully, to activate circuit IT with a copper jump cable by stretching his arms across the tracks and applying the wires to them.

Appellant’s specific contention in its brief on the basis of the above is this:

“The testimony of the crew, in conjunction with (1) the officer’s testimony that the wire was not connected where the first circuit originated, and (2) the testimony of Canton’s employee that he could not actuate the first circuit, supported a rational and permissible inference, if not direct proof, that the signal system was not functioning at the time of the accident, a condition not unfamiliar to Canton in view of its knowledge of prior malfunctions in the system (T. 122-25).”

First, we observe that the testimony of the crew may not be taken “in conjunction with” the officer’s testimony that the wire was not connected for the precise reason that the testimony of the crew and that of the officer that the wire was not connected are in hopeless conflict. Obviously, the crew could not have seen a green light governing the train’s passage, as well as the reflection of the red light controlling the vehicular traffic had the wire not been connected. Furthermore, the testimony of the crew may not be read “in conjunction with” the testimony of Canton’s employee that he could not activate the first circuit with a jump cable several hours later. The testimony of the crew establishes that the first circuit did function, although not immediately and there is no testimony that the manual application of a jump cable is the equivalent of or comparable with the activating capability of a 250,000 pound locomotive.

Secondly, we repeat the truism that negligence must be proved and never will be presumed. In the words of Professor Prosser, supra:

“What is required is evidence, which means some form of proof; and it must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not. As long as the conclusion is a matter of mere speculation or conjecture, or where the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct the jury that the burden of proof has not been sustained.” p. 211.

Here, treating the evidence in the light most favorable to Robin, there is some evidence of a partial malfunction in the testimony of the two crew members. The record is barren, however, of evidence to show that this partial malfunction constituted a dangerous condition of which Canton had notice and which was the proximate cause of the accident.

With respect to the element of notice, Robin failed to establish that Canton had actual knowledge of or was reasonably chargeable with knowledge of any system malfunction prior to the accident. Such knowledge is an essential element of negligence. Adams v. Carey, 172 Md. 173, 186, 190 A. 815 (1937). As the Court of Appeals stated in Texas Company v. Pecora, 208 Md. 281, 118 A. 2d 377 (1955), “Unless a defendant has actual knowledge or is reasonably chargeable with knowledge that his act or omission may injure another, he is not guilty of negligence.” This knowledge is the foundation for actionable negligence since, “[njegligence presupposes a duty of taking care'and this in turn presupposes knowledge or its equivalent.” Aleshire v. State, Use of Dearstone, 225 Md. 355, 170 A. 2d 758 (1961). As. stated in 57 Am.Jur.2d., Negligence, § 54: “[Tjhe authorities emphasize the point that knowledge, actual or imputed, is the wellspring of the duty to use care to avoid injury to another.”

The only support we find in the record for appellant’s claim of sufficient notice to Canton of a signal malfunction is the testimony of Mr. Phipps, when pressed by counsel for appellant, that it ’ was “possible” that complaints were received from members of train crews concerning the operation of the signal on North Point Boulevard. The only other testimony elicited from Mr. Phipps on this subject was that there were occasional complaints from the police department — but the essence of these complaints in the words of Mr. Phipps was that “they would go red for the road” without being activated by a train.

The fact that it was “possible” that Mr. Phipps heard — unparticularized, undated, unidentified as to subject matter — complaints from the train crews, is not sufficient reasonably to charge Canton with knowledge of any system malfunction. Ironically, the only other complaints — those made by the police — that the vehicular traffic signals turned red on some occasions when no train was crossing the road, were not evidence of a dangerous condition. They may, indeed, have constituted “notice” that the fail-safe system was functioning precisely as designed, to protect motorists when a battery ran down or the system otherwise lost its voltage. !

With respect to the element of proximate cause, it is fundamental, of course, that on the issue of causation, as on all other issues essential to a claim of negligence, the plaintiff has the burden of proof by a preponderance of the evidence. It is required that evidence be introduced “which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” Prosser, supra, p. 241. (Emphasis added.) As the author further states:

“A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within the common knowledge of laymen, expert testimony may provide a sufficient basis for it, but in the absence of such testimony it may not be drawn.” p. 241. (Emphasis added.)

In the instant case, the uncontradicted testimony of the crew members, upon which appellant itself relies, relates to a partial malfunction in circuit IT. This is not testimony that the train failed completely to activate circuit IT but rather that it did so when it was 30 to 40 feet from the first southbound lane rather than approximately 190 feet. The only testimony in the record concerning the location of the tractor-trailer at the time the locomotive entered the intersection, is that of the engineer’s helper that it was “several hundred feet away.” Except for the absence of skidmarks, there is no evidence in the record concerning the speed of the tractor-trailer. No expert testimony was offered on behalf of Robin as to the reasonably probable effects which the time lag in the activation of circuit IT would have had upon a vehicle “several hundred feet away” traveling in the inner northbound lane, or, indeed, any distance from the point of impact; and the subject is certainly not one “within the common knowledge of laymen.” Furthermore, appellant’s contentions with respect to the automatic light system take no account of the other warning devices which accompanied the movement of the locomotive: the powerful headlights mounted on the Diesel, its underlights, the automatic whistle and the continuous sound of the horn. Cf. Buczkowski v. Canton R.R. Co., 181 Md. 377, 30 A. 2d 257 (1943).

It is our conclusion that the evidence upon which appellant relies on the question of the railroad’s primary negligence was legally insufficient and was properly disregarded by the trial court. As the Court of Appeals stated in Flohr v. Coleman, 245 Md. 254, 225 A. 2d 868 (1967):

“A party who has the burden of proving another party guilty of negligence does not meet this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that the other party has been guilty of negligence.”

Judgments affirmed; appellant to pay the costs.

      . The parties stipulated that the damages to the locomotive were $6,293.55 and to the tractor trailer $9,875.00. The record is silent concerning any claims by railroad personnel for personal injuries or claims in connection with the instant death of the driver of the tractor-trailer.

      . Flashing devices on these signals had not been in use for some 6 or 7 months. No question of negligence has been raised by appellant in connection with the abandonment of their use.

      . If the train had shorted the circuit when it first came into circuit IT (about 220 ft. west of the road) it would have been about 190 feet from the road when the train signal light turned green (assuming a speed of 4 m.p.h. — 6 ft. per sec.) because the train would have traveled about 30 feet in the 5 seconds it took for the lights to change (220-30 = 190). This contrasts with the 30-40 feet from the road which the crewmen indicated was the distance when the lights did change.

      . As noted infra, appellant challenges the finding of the trial court that the officer’s testimony was the “only evidence” of a malfunction of the system.

      . A written motion by Canton for a directed verdict at the conclusion of all the evidence, Md. Rule 552, was formally denied by the trial judge. A motion for judgment n.o.v. was thereafter timely filed. Md. Rule 563. The trial court is governed by the same consideration in determining a motion for a directed verdict as it is in determining a motion for judgment n.o.v. Miller v. Michalek, infra.

      . The malfunction observed 8 hours after the accident was that the train did not activate the traffic lights to turn red until it was already through the intersection and approximately 250 feet east of the Boulevard. Just before the accident, however, both crewmen saw the traffic signal go red for the cars when the train still was 30-40 feet away from the road. This is corroborated to some extent by Officer Pulaski’s testimony that on arriving at the scene of the accident the light was red for North Point Boulevard and the train was 168 feet east of the intersection. There is a substantial distance between the point where the train was located when the traffic light turned red on the morning of the accident and its location when the light turned red as observed by the officer 8 hours later. This difference led the trial court to conclude that the malfunction observed 8 hours later was caused by a system defect attributable to the accident. As the trial court stated after holding that the officer’s testimony was inadmissible:
      “This is particularly true when you consider the officer’s testimony that when he first arrived on the scene the light was red when the locomotive had not yet reached the point where the officer observed the light turn red at the later observation.”

      . Although no derailment occurred, the engineer’s helper testified that the locomotive “raised up” at the time of the impact.

      . In Baltimore County v. Stitzel, 26 Md. App. 175, this Court held inter alia that upon remand of the proceedings in Stitzel v. Kurz, the trial judge correctly denied Baltimore County’s motion for a directed verdict.

      . Since the traffic and train signals took approximately five seconds to change from the time they were activated, and since the crew testified that the train was 30-40 feet from the road when the signals changed, the train would have been located entirely in circuit IT when it activated the signals, indicating that circuit IT did function the morning of the accident.

      . As previously indicated the system was so designed that the signals were green for vehicular traffic but would turn red when activated by a crossing train.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    ELVERT STREET, the younger a/k/a Marvin Elvert Street v. STATE OF MARYLAND
    [No. 471,
    September Term, 1974.]

      Decided May 28, 1975.

      The cause was argued before Moylan, Powers, Gilbert and Mason, JJ.

      AlanJ. Bloom, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Michael S. Glushakow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Elvert Street, Jr., was convicted in the Criminal Court of Baltimore by a jury of murder in the first degree, robbery with a deadly weapon and violation of the handgun law. He was sentenced by Judge Charles D. Harris to a term of life imprisonment for the murder conviction, a twenty year concurrent term for the robbery conviction and a ten year concurrent term for the handgun conviction.

In seeking a reversal of the judgments below the appellant contends:

I. That the trial court erred in instructing the jury not to consider the element of self-defense.

II. That the trial court erred in instructing the jury as to the explanation of reasonable doubt and burden of proof.

According to the facts adduced at the trial, George Dutton, age 66, was shot and killed in an alley in the rear of the 2300 block of E. Jefferson Street in Baltimore City.

Augustus Roberts testified that the appellant and he accosted the victim and forced him into the alley; that the appellant at gunpoint demanded and was given money by the victim; that he, Roberts, took the victim’s wallet from his back pocket and left the alley; that shortly thereafter he heard a shot and saw the appellant run from the alley; that approximately twenty to twenty-five minutes later he saw the appellant and asked him why he shot the man; that the appellant said, “because the man had pulled out some scissors on him.” A pair of scissors was found with the victim’s clothing.

The appellant did not testify at the trial or introduce any evidence on his behalf.

Self-Defense

After a historical and comprehensive explanation to the jury of its role as judge of the law and the facts in a criminal case and its right to disagree with the court’s advisory interpretation of the law, the trial court instructed the jury, inter alia, on the applicable law of self-defense.

“I instruct you that under the Maryland law the burden is upon the defendant who asserts self-defense to prove self-defense by a preponderance of the evidence. For that reason I advise you that under the Maryland law that there has been no sustaining of the burden of proof by the defendant, of proving self-defense on his part by a preponderance of the evidence. I advise you that you should not consider the element of self-defense in this case for that reason.”

The appellant seasonably objected and complained that the instructions negated matters he had argued to the jury.

On appeal, he argues that since the jury was the judge of the law and facts, the issue of self-defense was improperly removed from their consideration and a self-defense instruction should have been given. The force of this argument is diminished when viewed in the frame of reference of the facts and circumstances here.

It is a settled rule in this State that self-defense is an affirmative defense and the defendant has the burden of proving self-defense by a preponderance of the evidence. Gunther v. State, 228 Md. 404, 410-411, 179 A. 2d 880, 883 (1962); Chandler v. State, 7 Md. App. 646, 651, 256 A. 2d 695, 697 (1969). In Tipton v. State, 1 Md. App. 556, 560, 232 A. 2d 289, 291 (1967) this Court said:

“In order to justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. The trier of facts must determine whether the accused was justified in meeting force with force. If justification is found to have existed, the force used against the assailant must not have been unreasonable or excessive; i.e., the defender must not have used more force than the exigency reasonably demanded.”

Not one of the elements of self-defense, enumerated in Tipton, was present here.

The only evidence of self-defense in the instant case is the appellant’s self-serving declaration to Roberts, that he shot the man “because the man had pulled out some scissors on him.” Surely, this meager shred of evidence was too slight and doubtful in this fact situation to raise the issue of self-defense for jury consideration. See O’Connor v. State, 234 Md. 459, 461, 199 A. 2d 807, 808 (1964) (insufficient evidence to warrant an instruction on insanity); Bateman v. State, 10 Md. App. 630, 637, 272 A. 2d 64, 68 (1971); Mock v. State, 2 Md. App. 771, 775, 237 A. 2d 811, 813 (1968) (insufficient evidence to warrant an instruction on intoxication). If the appellant had requested an instruction on self-defense, which he did not, it would have been properly refused because it was not “supported by the evidence.” Peterson v. State, 15 Md. App. 478, 498-499, 292 A. 2d 714, 726 (1972); Md. R. 756 b. If the instruction were granted, it would have been more than the appellant was entitled to. See Jenkins v. State, 238 Md. 451, 464-466, 209 A. 2d 616, 624 (1965) vacated on other grounds, per curiam, 383 U. S. 834, 86 S. Ct. 1237 (1966); Fowler v. State, 237 Md. 508, 512, 206 A. 2d 802, 804 (1965); Crawford v. State, 9 Md. App. 624, 628, 267 A. 2d 317, 319 (1970).

In addition to lacking factual support in the record to generate the issue of self-defense for jury consideration, the claim of self-defense was unavailable to the appellant as a matter of law because he was an aggressor engaged in the perpetration of a robbery.

The applicable rule of law is well stated in 1 Wharton's Criminal Law & Procedure, 501, § 229 (12th ed. R. Anderson 1957):

“While there is no fixed rule applicable to every case with reference to what constitutes one an aggressor so as to preclude his right to self-defense, it may be stated generally that any act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars his right to assert self-defense as a justification or excuse for a homicide. . . .”

In Bruce v. State, 218 Md. 87, 96-97, 145 A. 2d 428, 433 (1958), the following instruction was approved:

“.. . in order to justify or excuse the killing of another on the ground of self-defense, it was necessary to establish that the defendant was not the aggressor and did not provoke the conflict;”

State v. Millett, 273 A. 2d 504, 509-510 (Me. 1971).

In Smith v. State, 209 Tenn. 499, 503, 354 S.W.2d 450, 452 (1961) the defendant, while engaged in the perpetration of a robbery of a liquor store, shot and killed the proprietor who attempted to shoot him. The Court held:

“.. . The person who kills another while engaged in committing a felony cannot escape conviction from murder in the 1st degree by showing that his intent was not to kill, but to defend his own life or person. . .

See Wilson v. State, 215 Ga. 672, 676, 113 S.E.2d 95, 99 (1960); Commonwealth v. Foster, 364 Pa. 288, 292, 72 A. 2d 279, 281 (1950), where the court held that self-defense was not available to a defendant in a felony-murder.

It is clear the appellant in this case was not entitled to have the issue of self-defense considered by the jury. Consequently, the instruction of the trial court advising the jury not to consider the element of self-defense, even if improper, was not reversible or prejudicial error in the context of the advisory instructions as a whole. See Wiley v. State, 237 Md. 560, 565, 207 A. 2d 478, 481 (1965); Gibson v. State, 204 Md. 423, 440-442, 104 A. 2d 800, 809 (1954); Sears v. State, 9 Md. App. 375, 381-382, 264 A. 2d 485, 488 (1970).

Moreover, the fact that the instruction may have tended to negate appellant’s argument to the jury is completely irrelevant since instructions may differ from argument of counsel.

“. . . It cannot be successfully contended that the mere fact that the jury is informed that the court holds a different view of the law from that asserted by counsel constitutes prejudicial error.”

Schanker v. State, 208 Md. 15, 22, 116 A. 2d 363, 367 (1955).

Reasonable Doubt

The trial court instruction to the jury on reasonable doubt is as follows:

“That means that if the evidence is sufficiently convincing to you that you would act upon that evidence in an important matter of your own, then it is enough evidence for you to convict in a criminal case. This is an important matter. It is not the most important matter in your life, and it doesn’t necessarily mean buying a house or major matters of that kind. What an important matter is to you will vary among all twelve of you jurors. What may be important to one juror may be very unimportant to another juror. So, it is a matter of your individual judgment as to what is important to you. It isn’t minor, but on the other hand, it isn’t the most important decision that you will have to make in your lives. It could mean anything in your daily lives which in your daily lives is an important matter to you.
Thus evidence is sufficient to remove a reasonable doubt when it convinces you as an ordinarily prudent person with such force that you would act upon that conviction in your own important day-to-day affairs, because from such evidence you may conclude that the State has met its burden ... of proving the guilt of the defendant beyond a reasonable doubt.”

The appellant contends the instruction was inconsistent, confusing and incorrect. We do not agree.

In Lambert v. State, 193 Md. 551, 558, 69 A. 2d 461, 464 (1949), the Court of Appeals found no error in the following instruction on reasonable doubt:

“It means such evidence as you would act upon in a matter involving important affairs in your life or your business or with regard to your property. If the evidence is sufficient that you would act upon it in a very important matter in your own lives, then it is sufficient to convict in a criminal case.” (Emphasis Supplied).

This Court, in Thompson v. State, 4 Md. App. 31, 35, 240 A. 2d 780, 783 (1968), approved the following explanation of reasonable doubt:

“It means such evidence as you would act upon in a matter involving important affairs in your own life, or in your own business, or with regard to your own property. Now if the evidence is such that you would act upon it in very important matters in your life, ...
Evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent man or woman of the truth of a proposition with such force that he or she would act upon that conviction without hesitation in his or her own important affairs. ” (Emphasis Supplied).

In attacking the instruction the appellant relies solely on that part which says:

“It is not the most important matter in your life and it doesn’t necessarily mean buying a house or major matter of that kind. ... It isn’t minor but on the other hand it isn’t the most important decision that you will have to make in your lives.”

Although certain parts of the instruction, taken out of context, may appear to give an inaccurate interpretation of the law, a careful reading shows that the instruction, when considered as a whole, can be reconciled and harmonized with the charges approved in Lambert and Thompson, supra.

The challenged instruction merely left to the judgment of each juror the determination of what was an important matter in his own life without presuming that buying a house or making a business decision was, necessarily, the only important matter in his life. The Lambert Court observed:

“. . . the English language is not adequate to give a specific definition of ‘reasonable doubt’ that would simplify its meaning, for the rule requiring that the jury must be satisfied beyond a reasonable doubt is generally as simple and intelligible as a guide for the jury as any rule that could be formulated. In fact, it is recognized that the rule is quite frequently made obscure by attempts at definition, which serve to create doubts instead of removing them. This danger of confusing the minds of the jurors in attempting to define ‘reasonable doubt’ has prompted some of the trial judges to refuse to attempt to give any definition. Of course, a definition is not reversible error unless, by reason of peculiar circumstances or phraseology, such an instruction misleads or confuses the jury.”

193 Md. at 559, 69 A. 2d 464. We hold that the jury was not misled or confused by the instruction.

Judgments affirmed.

      . The record of the hearing on the motion for a new trial reveals that the appellant’s primary defense and argument to the jury was that Roberts shot the victim.


author: Powers, J.,

text:
    RUTH WHITE RICHARDS v. JAMES STEPHEN GOFF, Minor, Etc., et al.
    [No. 481,
    September Term, 1974.]

      Decided May 28, 1975.

      The cause was argued before Moylan, Powers, Gilbert and Mason, JJ.

      Nat PF. Hopper, with whom were Serio, Hopper & Carmody on the brief, for appellant.

      Arthur V. Butler, with whom were Lawrence F. Weslock and Cheryl Lynn Hepfer on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

The facts in this case are uncomplicated, and the significant facts are uncontroverted. The law which must be applied to those facts requires that we reverse the judgments entered in favor of the plaintiffs below.

Suit was filed in the Circuit Court for Anne Arundel County by James Stephen Goff, a minor, and Harry S. Goff, his father, against Ruth White Richards. The declaration contained two counts for damages arising out of an automobile-bicycle accident. The first count was for injuries sustained by the minor, and the second count sought to recover the medical expenses incurred by his father.

After removal of the case to the Circuit Court for Baltimore County, a jury trial was held in that court on 28 and 29 March and 1 April 1974. At the close of the evidence a motion by the defendant for a directed verdict in her favor was denied. The jury found in favor of the minor plaintiff and his father. From the judgments entered on those verdicts after denial of a motion for judgment n.o.v. or for a new trial, Mrs. Richards appealed. She contends in her appeal that the trial court erred in denying her motion for a directed verdict at the close of all the evidence, and that the court erred in its instructions to the jury in eleven different respects. Since we conclude that the motion for a directed verdict should have been granted, it is unnecessary to consider the instructions.

The evidence showed that all parties lived on Crandall Road, in Anne Arundel County. Crandall Road was a paved county road, 22 feet wide, with no land or center line markings. Shoulders of loose stone and gravel were about four feet wide. The road was about 3/4 of a mile long, running north and south. At the south end, it intersected Route 258, and from there, going north, it came to a dead end.

Mrs. Richards lived in the last house at the north end of Crandall Road. The Goffs lived about 600 to 700 feet to the south, and a family named Schruhl lived about 500 feet south of the Goffs. At this point Crandall Road was straight, and slightly downhill to the south. The posted speed limit was 30 miles per hour.

In the afternoon of 12 May 1972 James had been visiting at the home of his friend Chuckie Schruhl. At about 3:45 P.M. James left the Schruhl’s yard, riding his bicycle. The day was clear and bright. He rode down the driveway, which sloped downhill, between high banks, to intersect with the east side of, and enter Crandall Road. James rode out onto Crandall Road. At the same time Mrs. Richards, with her sister-in-law as a passenger, was driving an automobile south on Crandall Road. The bicycle and the automobile collided, and James was severely injured.

Trooper Ralph C. Lewis, Jr., of the Maryland State Police, called by the plaintiffs as a witness, said that he answered the call and arrived at the scene. The report of the accident was made by Trooper James H. Mollman, who arrived a few minutes later. Both took part in the investigation. Trooper Lewis said, “When you are going south on Crandall Road, you come to the private drive. You cannot see up the driveway up to your left if you are driving your car going straight ahead. You have to be almost to the driveway to see up the driveway.” He testified that his diagram showed the distance to be 22 feet, that you could see something coming out of the driveway.

Mr. Goff testified that he “did some measurements yesterday, experimented with them”. Asked how far back he could observe the Schruhl driveway when he was heading south, he responded, “I’d say between sixty and seventy feet.” As to how far up the driveway he could see from that point he answered, “I’d say, approximately fifteen feet”.

Both police officers said that there was nothing to indicate the point of impact on the roadway, such as dirt, glass, paint, or other debris. Parts of the broken bicycle were on the shoulder on the right side looking south. James was lying on that shoulder.

Trooper Lewis testified to a statement made to him by Mrs. Richards at the Schruhl home a few minutes after the accident. He read a series of questions asked of Mrs. Richards, and her answers that he recorded at that time. She had told the Trooper that she was driving south on Crandall Road from her home to take her sister-in-law home. There were no other automobiles on the road. He read further from his report:

“Question: How far was this person or vehicle away when you first observed him?
Answer: Right in front. Darted out from between banks.
Question: What was the condition of your brakes, foot or emergency, at the time of the accident?
Answer: Good.
Question: How fast were you driving at the time of this accident?
Answer: Twenty-five to thirty miles per hour.
Question: With reference to this accident, how far did your vehicle travel after the accident before coming to a complete stop?
Answer: Fifty or sixty yards.
Question: What was the condition of the street, dry, bumpy, et cetera?
Answer: Dry. Bank of dirt.
Question: Describe the lighting conditions at point where accident occurred, daylight or dark?
Answer: Daylight. It was bright.
Question: How was the visibility? How far could you see ahead, right or left?
Answer: Clear visibility front. Clear to right. Bank to the left.
Question: Were the lights on your vehicle lighted?
Answer: No.
Question: Have you anything else to say for — I can’t quite read all this, but it pertains to have you everything else to say as to what happened?
Answer: The child darted from between the banks in front of the car. I swerved to the right to try to avoid hitting the child. Went over a bank into a field. So nervous, I realized I had my foot on the gas pedal, and then came to a stop in the field.”

Also put in evidence by the plaintiffs were excerpts from a deposition of Mrs. Richards taken before trial. This evidence included the following questions and answers:

“Question: Now, as you came along on Crandall road going to state route 258, where was your vehicle located when you first observed the Goff boy?
Answer: I was on the right side of the road, and I was, approximately, I would estimate, about twenty-five feet from the Schruhl driveway.
Question: What was your rate of travel at that time?
Answer: I estimate between twenty-five and thirty.
Question: When you first observed the Goff boy, where was he located?
Answer: He was coming out of the Schruhl driveway on his bicycle, and he came out on an angle over to my side of the road. He was meeting me headon.
Question: You say his bicycle was meeting you headon?
Answer: Right.
Question: When you first saw him, you were about twenty-five feet away traveling about twenty-five or thirty miles per hour?
Answer: Right.
Question: When you saw him, did you hit your brakes at that time?
Answer: First I swerved over to the right to try to avoid hitting him, and attempted to apply my brakes.”
“Question: Were you at any time on the shoulder prior to the collision?
Answer: No.
Question: You say when you first saw him —
Answer: When I first saw the boy, I got off. I swerved over to my right. There was,
approximately, I would say, about twenty-five feet. I had gotten over on the shoulder.
Question: You had gone twenty-five feet over to your right?
Answer: No, not twenty-five feet. I was twenty-five feet from the little boy.”
“Question: Now, Mrs. Richards, after you first observed the Goff boy on the bicycle, was he in the Schruhl driveway or was he on Crandall Road, to your knowledge?
Answer: Well, he came out so fast, he didn’t have much time to be in the Schruhl driveway. He came immediately out onto Crandall Road.
Question: As he came out onto Crandall Road, was he turning to go towards his home or towards your home?
Answer: Right.”
“Question: Can you tell me, based on your experience in going up and down Crandall Road, how close do you have to be to the Schruhl driveway before you see up to it going towards Route 258?
Answer: I, really, don’t know. Going towards 258?
Question: Yes, ma’am.
Answer: I, really, don’t know how close you would have to be.
Question: When you were, approximately, twenty-five feet back from the Schruhl driveway going towards Route 258, could you see up the Schruhl driveway?
Answer: No.
Question: So that prior to the time that you were seeing the Goff boy, because of the bank, you couldn’t see him if he was coming down the driveway?
Answer: Correct.
Question: The driveway leading from the Schruhl house, that was a downhill grade, wasn’t it?
Answer: That’s correct, a blacktop road.”

Mrs. Richards testified at the trial as a witness in her own behalf. She said that she was driving south on Crandall Road, in the right lane. She said she saw the boy on the bicycle coming out of the Schruhl driveway. He was not on the road when she first saw him. She said she swerved to the right and attempted to put on the brake. He came out at an angle and then right up the road, meeting her head on. She went off the road to the right.

Mrs. Myrtle Catterton, sister-in-law of Mrs. Richards, and her passenger at the time of the accident, testified that Mrs. Richards was driving on the right side of the road, at about 25 miles per hour. When the car was one or one and one-half lengths from the driveway the witness saw James come out of the driveway, right in front of the car. She said that Mrs. Richards swerved to the right to try to avoid hitting him, and went down an embankment and out into the field. Mrs. Richards went to call for help and Mrs. Catterton stayed with the boy until help arrived. Mrs. Catterton said that when the bicycle came out of the driveway, it was coming over at an angle across the road up towards Mrs. Richards’ car. She said that at the time of the collision the bicycle was over to the right of Crandall Road, referring to the right side going south.

James testified that he had been visiting his friend Chuckie Schruhl, and left on his bicycle by the driveway. He did not remember the accident. He said that he had had bicycles since he was four years old. He was seven years and eight months old at the time of the accident. At the time of the trial, almost two years after the accident, Mr. Goff said that James had had bicycles for about five years. He said, “I told him to be very careful on the road, watch out for the cars”. Both he and his wife had given their son instructions to be careful when riding the bicycle, and about looking for automobiles before going out to Crandall Road.

Reliance is placed by the appellees upon physical evidence observed at the scene of the accident by Trooper Mollman, and testified to by him. The Trooper observed a tire mark, which he said was not a skid mark, on the surface of Crandall Road. It lead up to the back of the vehicle. He said, “Facing in a southerly direction, using the right wheel of the vehicle, the right tire mark, would be six feet from the right side of the roadway facing southbound.” The mark continued 24 feet on the hard surface, 24 feet down an embankment to the right, and 246 feet in a straight line out into the field. The vehicle was then 85 feet to the right of the road. The Trooper’s diagram of the scene, a plaintiffs’ exhibit, showed that the tire mark was 24 feet to the point where it left the pavement, directly across from the north edge of the driveway.

Trooper Mollman said that he observed damage to the left front headlight of the vehicle, and that there was a dent on the top of the left front fender. He said that the bicycle was broken. He said it was a two wheeler, and supposed the wheels were about 15 inches. The bike was four feet, maybe four and a half feet long. The brake was on the rear wheel. It was admitted in the case that the automobile of Mrs. Richards was 207 inches long, bumber to bumper, and that it was 74 inches wide.

The other mark observed and described by the Trooper was much narrower, and he believed it was made by a bicycle. The mark began in the driveway, was 12 feet long, and extended to a point nine feet into the highway. Where the mark began it was three feet south of the north edge of the driveway pavement. The trial judge asked about the 12 foot mark. The witness said:

“ * * * the tire mark runs in the same direction as the driveway does. It curves to the north and then straight back in the same direction as the driveway, the Schruhl driveway. It runs perpendicular to the road, generally.”

Trooper Mollman, indicating on a diagram, said further:

“Well, it made kind of an S, using the direction. It came out like that. This portion here was on a loose sand surface, and then it became black as it got onto the hard surface of the roadway and continued in a straight line.”

He later explained the mark in these words:

“As it was exiting from the driveway, it came out in a westerly direction, curved towards the north, came back to the west again, and made kind of an S shape.”

Further questions and answers made it clear that the Trooper was saying that the line started going west, then curved to the north, then back to the west. He said that in doing so, it extended nine feet west into the road and nine feet north up the road.

The basic uncontroverted facts are that James Goff, on a bicycle, entered Crandall Road, a public highway, from a private driveway, and was hit by an automobile operated by Mrs. Richards on the public highway. As to those facts, reasonable minds could not differ.

One inference which may appear to be favorable to the appellees may be drawn from the evidence. It is that at the time its rear wheels were 24 feet from the north side of the driveway, the left rear corner of the Richards car was one foot to the left, or east, of the imaginary center line of Crandall Road. Another inference, which presents no alternative, is that when the braking action of the bicycle stopped, a substantial part of the front of the bicycle was west of that imaginary center line.

We draw the inference favorable to the appellees, but with or without it the applicable law is clear. Code, Art. 66V2, § 11-404 (now subsection (a)) required that

“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall stop and yield the right-of-way to all vehicles approaching on the highway.”

This section applies the “boulevard law” of § 11-403 to private entrances without requiring the erection of stop signs. Grue v. Collins, 237 Md. 150, 205 A. 2d 260 (1964); Shriner v. Mullhausen, 210 Md. 104, 122 A. 2d 570 (1956); Craig v. Englar, 11 Md. App. 146, 273 A. 2d 224 (1971).

Code, Art. 66V2, § 1-209 defines a “vehicle”. It says:

“Vehicle means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.”

Code, Art. 66V2, § 11-1202 provided:

“Every person riding a bicycle upon a roadway shall be granted all of the rights and subject to all of the duties applicable to the driver of a vehicle by this subtitle, except as to special regulations in this part and except as to those provisions of this article which by their nature can have no application.”

A bicycle is a vehicle. Even a child’s sled is a vehicle, when a person is transported upon it upon a highway. Moon v. Weeks, 25 Md. App. 322, 333 A. 2d 635 (1975).

In legal contemplation there was a stop sign at the end of the Schruhl driveway where it entered Crandall Road. James Goff was the operator of' the unfavored vehicle. Mrs. Richards was the operator of the favored vehicle. The law required that he stop and yield the right of way to her. He did not.

There can be no doubt of the inexorable application of the boulevard rule in Maryland. In Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972), Judge Digges wrote for the Court of Appeals, and after noting that the Court had reviewed “the more than fifty opinions * * * which have considered the ‘boulevard rule’ ”, said, at 243-44:

“The essence of these decisions, when distilled to their purest form, leaves no doubt that the duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored road and the driver on the favored highway has a right to assume that he will do so. Dunnill v. Bloomberg, 228 Md. 230, 179 A. 2d 371 (1962); Ness v. Males, 201 Md. 235, 93 A. 2d 541 (1953); Baltimore Transit Co. v. O’Donovan, 197 Md. 274, 78 A. 2d 647 (1951). When the operator of a vehicle enters the favored highway in disregard of these explicit and mandatory rules and collides with another vehicle approaching thereon, the collision must be at least partially attributed to his negligence. Blinder v. Monaghan, 171 Md. 77, 188 A. 31 (1936). It is firmly established in this State that when the ‘boulevard rule’ is applicable the unfavored driver is negligent as a matter of law when sued or contributorily negligent as a matter of law when suing.”

The Court said further, at 245:

“In order to make crystal clear our holding here, we emphasize that if an unfavored driver is involved in an accident with a favored vehicle under circumstances where the boulevard law is applicable then in a suit based on that collision the unfavored driver is deemed to be negligent as a matter of law. And, if the unfavored driver is a plaintiff, his suit is defeated unless the doctrine of last clear chance rescues his claim.”

In Beckward v. Hensel, 20 Md. App. 544, 316 A. 2d 309 (1974), this Court applied the view that negligence by the favored driver in an intersection accident could be the sole proximate cause, thus making the boulevard rule inapplicable. What we saw as a chink in the armor of the rule was not there. The Court of Appeals granted certiorari, and in Hansel v. Beckward, 273 Md. 426, 330 A. 2d 196 (1974), reversed the judgment of this Court. The Court of Appeals said, at 427:

“In Creaser v. Owens, 267 Md. 238, 240-41, 297 A. 2d 235 (1972), the most recent case of this Court which discusses Maryland’s motor vehicle ‘boulevard rule,’ Maryland Code (1957, 1970 Repl. Vol.) Art. 66V2, § 11-403, we indicated our hope that, with the views expressed there, no longer would this statute give rise to either ‘lingering doubts about the absoluteness of its application,’ or, other than through legislative enactment, further ‘attempts to create new exceptions to it.’ The present litigation, however, has dashed this hope, as once again we are faced with a case in which the application of the ‘boulevard rule’ is sought to be avoided. Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.”

Further, the Court of Appeals said, at 431:

“In explaining our decision it becomes unnecessary for us now to go back and review each of this Court’s prior ‘boulevard rule’ cases since that has been done by several of our recent opinions, particularly Creaser. Consequently, we only encapsulate here what those cases have elaborately said, and then supplement that so as to explicitly encompass the nuance presented by this case. Based on these precedents we hold the ‘boulevard’ statute to be applicable here. This large group of previous cases makes clear that when the unfavored driver sues, the ‘boulevard rule’ barring his recovery applies to an accident which occurs between, an unfavored driver and the favored motorist . on the ‘boulevard,’ either in the intersection or at a point, though technically outside the intersection, so close to it that the unfavored entering driver interferes with the favored driver’s right-of-way into or through the intersection, Grue et al. v. Collins, 237 Md. 150, 157, 205 A. 2d 260 (1964), unless, under appropriate circumstances, the unfavored driver is rescued by the doctrine of last clear chance, Greenfeld v. Hook, 177 Md. 116, 8 A.2d 888 (1939).”

There is no contention here, nor could there be on the facts, that Mrs. Richards had a last clear chance to avoid the collision.

We hold that the boulevard rule compels the conclusion that as a matter of law James Goff was negligent. We observe that the' so-called tender years doctrine involves only a question of how much care constitutes ordinary care for a child of his age, experience, and intelligence. In a case arising from a bicycle-automobile collision at an intersection where the boulevard rule applied, the Court of Appeals in Kane v. Williams, 229 Md. 59, 181 A. 2d 651 (1962), noted only that the infant was above the age at which he could be guilty of negligence, and held that he was negligent as a matter of law. See Oddis v. Greene, 11 Md. App. 153, 273 A. 2d 232 (1971). The evidence in this case of the age, experience, and training of James Goff removes from the area of jury determination the question of whether he was able to comprehend and observe the applicable vehicle laws, and rules of safety.

Because recovery in this case is barred by James’s negligence, it is not necessary for us to rule whether there was sufficient evidence to permit the jury to consider whether Mrs. Richards was negligent in a manner which constituted a concurring proximate cause of the accident.

The judgments must be reversed.

Judgments reversed.

Appellees to pay costs.

      . In due course after suit was filed, a trial was commenced before a jury in the Circuit Court for Anne Arundel County, but came to an abrupt end at the conclusion of the plaintiffs’ opening statement. Defendant there moved for a directed verdict on the basis of the opening statement, and the motion was granted. We reversed the judgment entered on that verdict, holding that there is no Maryland procedure which permits a directed verdict at that siage of trial. Goff v. Richards, 19 Md. App. 250, 310 A. 2d 203 (1973). While the case was before this Court on appeal, the Goffs filed an affidavit and suggestion for removal. Our remand directed that the case be sent to the Circuit Court for Baltimore County for trial.

      . Acts of 1974, ch. 654, § 1 and ch. 868, § 1, substituted the phrase “in a public bicycle area for the phrase “upon a roadway”.


author: Moore, J.,

text:
    JAMES H. ROSE v. STATE OF MARYLAND — CLIFTON T. PERKINS HOSPITAL et al.
    [No. 486,
    September Term, 1974.]

      Decided May 28, 1975.

      The cause was argued before Thompson, Gilbert and Moore, JJ.

      Roger N. Powell, with whom was Paul A. Gibbons on the brief, for appellant.

      Charles R. Goldsborough, Jr., Special Attorney, with whom were Francis B. Burch, Attorney General and J. Howard Holzer, Special Attorney, on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

In this workmen’s compensation case, a jury in the Circuit Court for Anne Arundel County returned negative answers to the following “Issues” presented to them by the trial judge (Childs, J.) for determination:

1. Did the claimant, James H. Rose, sustain an accidental injury to his lumbrosacral spine arising out of and in the course of his employment on the night of April 21st-22nd, 1972?

2. Was claimant, James H. Rose, disabled as a result of an accidental personal injury arising out of and in the course of his employment on the night of April 21st-22nd, 1972?

The Workmen’s Compensation Commission, from whose award the employer and insurer appealed to the Circuit Court, had made affirmative findings upon substantially the same issues. It also found that appellant had waived compensation for temporary total disability and had accepted sick leave wages in lieu thereof from April 22 to September 2, 1972. The Commission further found that the Clifton T. Perkins State Hospital, employer, and State Accident Fund, insurer, were liable for the employee’s medical bill at Maryland General Hospital in the amount of $2,109.75 and ordered payment or reimbursement in that sum. The Commission’s award was subject to “further determination as to whether the claimant sustained any permanent disability; subject to the provisions of the Workmen’s Compensation Law of Maryland.”

On this appeal, Mr. Rose contends that the jury’s determination — which in effect reversed the finding of accidental injury on the part of the Commission — should be set aside. His challenge is two-pronged: (a) that the trial court erred in denying his motion for a directed verdict at the close of the evidence; and (b) that reversible error was committed by the admission into evidence of three photographs taken by the hospital photographer at Clifton T. Perkins State Hospital. We find no error and affirm.

I

On the date of the alleged accident, April 22, 1972, the appellant was 43 and had been employed as a security guard at Clifton T. Perkins State Hospital for almost ten years. At about 1:45 a.m. on April 22, while he was making a security check on one of the wards, a patient requested him to close a window. As shown by the testimony and photographs, there are iron bars inside the windows, which are casement-type, not sash-type, with upper and lower sections which must be pushed to open and pulled to close. In his “report of injury,” appellant wrote: “When closing window and the position my body was in [sic] I had severe pain in my back.” A co-worker, Ronald Lee Lynch, testified that Mr. Rose was “yanking” on the upper section, made a “moaning noise” and said he had hurt himself. Appellant’s wife testified that when he returned home Friday morning he was in pain. She applied heat to his back and attempted to reach the family doctor, George Groleau, M.D. Mr. Rose was unable to get out of bed on Sunday evening when he was next scheduled to work, she said.

Dr. Groleau, who saw him on a house call on April 24, 1972, was “fairly certain he had a disc.” Medication for pain was prescribed and the patient was advised to see Dr. R. K. Thompson, a neurological surgeon, if the medicine afforded no relief. Dr. Thompson examined him, as an in-patient, on April 26, 1972 and found a lumbar disc derangement for which surgery was performed on May 8, 1972, at Maryland General Hospital. Mr. Rose did not return to his employment until September 2,1972.

Dr. Thompson was subpoenaed below by both sides. He testified that he had first seen Mr. Rose on February 10, 1972, two months before the accident, when appellant related a history of having first hurt his back two years before, “while working at the Clifton T. Perkins State Hospital while closing a window in 1970.” Exercises were prescribed for Rose by Dr. Thompson in February, 1972 but because “he had been doing [them] incorrectly and hadn’t come back at the end of the month when he was supposed to, . . . [and] his pain was more severe and that he had a complaint of weakness in his legs and for this reason [emphasis added], we put him in the hospital on April the 26th, 1972.” Although Dr. Thompson did complete a medical report for the Workmen’s Compensation Commission on February 22, 1973 in which the entry for “date of accident or onset of disease” was listed as April 21, 1972, he testified that he was not aware, at the time he admitted appellant to Maryland General Hospital, of the “second injury,” of which he became informed only at the time of filing the Commission report, i.e., February, 1973, and had “admitted [Rose] on the basis of his symptoms getting worse.”

Dr. Thompson also read from the records of Maryland General Hospital, where appellant underwent surgery on May 8, 1972 for removal of the ruptured disc. These records confirmed the patient’s two-year history of pain and referred to the April, 1972 incident as “an acute exacerbation of pain.” The appellant himself testified that he did experience pain when he closed a window, on his job at the Hospital, in 1970 and also felt pain again from closing a window which was “stuck,” on April 21, 1972, the date of the “accident” in question.

II

On the basis of the evidence, and inferences properly deducible therefrom, appellant claims that the question of whether his injury and disability was of accidental origin was one of law for the court and that the court erroneously denied his motion for a directed verdict. In support of the motion, counsel urged upon the trial court:

“They [employer-insurer] have to prove the Commission was wrong and I have to prove nothing because all the presumptions that go with the Workmen’s Compensation Commission follow in my favor. The presumption of correctness of the award is in my favor.”

The quoted language represents a misstatement of the law, a misunderstanding of the meaning of Art. 101, § 56 (c), upon which appellant relies:

“In all court proceedings under or pursuant to this article, the decision of the Commission shall be prima facie correct and the burden of proof shall be upon the party attacking the same.”

This section, as the Court of Appeals observed in Stewart & Co. v. Howell, 136 Md. 423, 110 A. 899 (1920), simply places the burden of proof upon the party taking the appeal, irrespective of whether appellant is the claimant or the employer and insurer. The appeal provisions of our Workmen’s Compensation statute contemplate a trial which is essentially de novo. Richardson v. Home Mutual, 235 Md. 252, 201 A. 2d 340 (1964); Smith v. State Roads Commission, 240 Md. 525, 214 A. 2d 792 (1965). This, however, does not mean that the party attacking the Commission’s finding must adduce additional evidence at the de novo proceeding, whether before a jury or the court; nor, indeed, that he must present even as much evidence. As Judge Adkins wrote in Stewart & Co. v. Howell, supra:

“In other words it establishes no new rule when the plaintiff happens to be the party appealing, as the burden was always upon the plaintiff to prove his case. But it shifts the burden from, the plaintiff to the defendant where the defendant loses before the Commission and desires to appeal from its decision, requiring the defendant in such a case to satisfy the jury by a preponderance of testimony that the plaintiff is not entitled to the award made by the Commission.” (Emphasis added.)

Thus the party who appeals an award of the Commission has the “burden of persuasion” or in Wigmore’s phrase, “the risk of nonpersuasion” — the same burden that attends parties having the affirmative of an issue in civil cases generally. Dent v. Cahill, 18 Md. App. 117, 305 A. 2d 233 (1973). As Judge Collins stated for the Court of Appeals in the leading case of Greenwalt v. Brauns Bldg. Specialties Corp., 203 Md. 313, 100 A. 2d 804 (1953):

“This burden of proof provision means nothing more than that, if the mind of the trier of facts is in equal balance on the evidence in the record, the findings of the Commission should be affirmed.”

It follows inevitably, therefore, that the claimant-appellant is unaided by any presumption, as contended, and our evaluation of his assertion of error in the denial of his motion for a directed verdict is measured by_ the general rule in workmen’s compensation cases that: “[W]hen there is any evidence from which a rational conclusion may be drawn, as opposed to the theory of a prayer for a directed verdict, the trial court must leave to the jury all considerations as to the weight and value of such evidence.” Jewel Tea Co. v. Blamble, 227 Md. 1, 174 A. 2d 764 (1961), cited by Finan, J. in Richard F. Kline, Inc. v. Grosh, 245 Md. 236, 244, 226 A. 2d 147 (1967); Ackerhalt v. Hanline Brothers, 253 Md. 13, 252 A. 2d 1 (1969).

In Ackerhalt, the Court of Appeals reversed a judgment upon a directed verdict in favor of the employer and insurer. Judge McWilliams writing for the Court there quoted the following language of Digges, J. (by special assignment) in Anne Arundel County v. Cole, 237 Md. 362, 206 A. 2d 553 (1965) where an accidental injury resulting from horseplay was found compensable:

“If reasonable minds could not disagree about the conclusion resulting from a particular set of undisputed or conceded facts, the question becomes one of law to be decided by the court. If reasonable persons could disagree as to what the facts are, or the inferences and conclusions to be drawn from undisputed facts, the question is one for the trier of the facts. ” (Emphasis added.)

The central issue in this appeal, upon which appellant’s case must rise or fall, is whether an accident occurred in the early morning hours of April 21, 1972 when he reached out to close a window as requested by a hospital patient. Concerning this fundamental question, and considering the evidence and all logical and reasonable inferences deducible therefrom in the light most favorable to the appellee, we find that reasonable persons could disagree as to what the facts are and the inferences and conclusions to be drawn from such facts as may be undisputed.

On the side of the appellant is his own statement concerning the “position” of his body; the testimony of his wife concerning her observations of him and her testimony of a report to the employer that he had an “accident;” the testimony of the co-worker that appellant emitted a moaning sound after closing the window; the medical report of the neurologist, Dr. Thompson, indicating that Mr. Rose had used a ladder at the time of the incident and another report by Dr. Thompson that the patient had an accident on April 21,1972.

On the other hand, the chief security officer at the Hospital, Mr. George W. Murphy, testified that he first learned of appellant’s claim of accidental injury when he received an accident report on September 14, 1972; the sick call register maintained for employees at the employer-hospital recorded an entry on April 23, 1972 of a call from Mrs. Rose that her husband “will not be in today — he is sick,” an entry dated April 24th that Mrs. Rose reported her husband “still sick — out for balance of week” and a series of subsequent calls by her concerning his “sick” condition, none of which referred to any accident; testimony from the chief security officer that the use of ladders was forbidden in maximum security areas where the alleged accident occurred; and that the windows were equipped with metal arm restraints so that it would not be possible to extend them more than 40 degrees and that the upper section, when fully opened, extended approximately 14 or 15 inches; the testimony of the neurologist, Dr. Thompson, that he had seen the appellant two months prior to the alleged accident for a back condition alleged to have occurred in the same manner some two years before and that he was unaware, when the patient was admitted to the hospital on April 25, 1972, that he was involved in an alleged accident on April 21,1972.

In sum, we deem it abundantly clear that there were numerous factual issues and inconsistencies which precluded the granting of appellant’s motion for a directed verdict and that the trial court properly submitted the case to the trier of facts upon appropriate instructions, to which there were no exceptions, including a careful exposition of the meaning of accidental injury.

Ill

Appellant’s remaining contention is that the admission into evidence of three photographs of a window at Perkins State Hospital constituted reversible error.

The photographs were taken by the hospital photographer at the instance of the chief security officer, George W. Murphy, subsequent to the alleged accident and in preparation for Mr. Murphy’s testimony on behalf of the State. They showed a security guard, other than Mr. Rose, standing before a window, and, in separate poses, closing the upper section and. the lower, section. Mr. Murphy’s testimony, uncontradicted, was that all the windows in the hospital were constructed of steel and were identical and that the individual guard in the photograph was approximately the height of Mr. Rose. On behalf of appellant, it was adduced that the positions of the window sections at the time of the alleged accident and at the time pictures were taken, were not the same.

Claiming prejudicial error, appellant contends that, once admitted, the pictures “became evidence that the windows could be closed by anyone without suffering the consequences complained of” by Mr. Rose. Appellee responds that the pictures were introduced (a) to controvert any contention concerning the necessity for using a ladder and (b) to place the height and type of window in proper perspective.

It is well established that the admission of photographs is within the sound discretion of the trial judge and his rulings thereon will not be disturbed in the absence of a showing of abuse of discretion. Marlow v. Davis, 227 Md. 204, 176 A. 2d 215 (1961); City of Baltimore v. State Roads Commission, 232 Md. 145, 192 A. 2d 271 (1963); Sanner v. Guard, 236 Md. 271, 203 A. 2d 885 (1964).

The above holdings of the Court of Appeals have of course been followed by this Court. Morris v. Peace, 14 Md. App. 681, 288 A. 2d 600 (1972); Sun Cab Co. v. Walston, 15 Md. App. 113, 289 A. 2d 804 (1972). In Morris v. Peace, supra, appellant’s claim of error in the admission of five photographs was based on the fact that between the time of the accident and the date the photographs were taken, a traffic light was installed and part of the intersection had been widened. Rejecting the claim of error, Judge Thompson, writing for the Court, stated:

“. . . Admission of such [photographic] evidence is in the discretion of the trial judge and is not open to review unless plainly arbitrary. ... We could not have found reversible error had the trial judge excluded the photographs, neither can we find reversible error because they were admitted.” (Emphasis added.)

We find appellant’s second assignment of error is also without foundation.

Judgment affirmed; appellant to pay the costs.

      . The trial judge instructed the jury that Mr. Rose was acting in the scope of his employment. . The principal question submitted for determination was whether or not the injury sustained was “accidental.”

      . At the hearing before the Commission, testimony was received only from appellant, his wife, and the chief security officer at Perkins State Hospital. Appellant’s medical records were also received. At the trial below five witnesses, including Mrs. Rose and Doctors Groleau and Thompson, testified in the Employer-Insurer’s case.

      . The record discloses that Mr. Rose made no compensation claim for the 1970 occurrence.

      . Wigmore on Evidence § 2485 at 270 (1940).

      . The Greenwalt rule has been cited approvingly in more recent cases, e.g., Smith v. State Roads Commission, 240 Md. 525, 214 A. 2d 792 (1965), supra; Blake Construction Co. v. Wells, 245 Md. 282, 225 A. 2d 857 (1967); and Morris v. Christopher, 255 Md. 372, 258 A. 2d 172 (1969).