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REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 294 SEPTEMBER TERM, 1995 ___________________________________

LOUISE MALLAN KELBAUGH

v. JENNIFER MADELINE MILLS

___________________________________

Fischer, Cathell, Murphy, JJ. ___________________________________ Opinion by Cathell, J. ___________________________________

Filed: February 5, 1996

A car driven by Louise Kelbaugh, appellant, met with one driven by Jennifer Mills, appellee, at the intersection of Benfield Road and Veteran's Highway in Millersville in Anne Arundel County. Cross suits followed the collision, in which the primary issue was who had the right-of-way at the intersection. Appellant claimed

that she was turning left under a green left-hand turn arrow, while appellee asserted that she was proceeding straight through the intersection under a full or solid green light. A jury in the The that

Circuit Court for Anne Arundel County found for appellee. instant appeal concerns the jury instructions given in

negligence suit. is:

The sole question appellant presents on appeal

Did the trial court err in instructing the jury that a motorist making a left turn must yield the right-of-way to any other vehicle that is approaching from the opposite direction, without also instructing the jury that this duty to yield the right-of-way does not exist when the left turning motorist is proceeding under a green arrow signal? We answer the question in the affirmative, and because the trial court's instructions materially prejudiced appellant's case, we shall remand for a new trial. The Facts

-2The intersection of Benfield Road and Veteran's Highway is controlled by traffic signals. At that intersection, Benfield Road

is an eight-lane divided highway: in each direction, two lanes proceed straight through the intersection with additional lanes on both the extreme left and extreme right designated solely for turns in those directions. Shortly before 8:15 p.m. on the 12th of March, 1993, a clear, dry, cold evening, appellant was traveling westbound on Benfield Road. turn At trial, she testified that she sought to make a left-hand in order to proceed southbound on Veteran's Highway.

Appellant stated that, as she approached the intersection, the light changed from green to yellow and then to red, and, appropriately, appellant stopped her Toyota Cressida in the designated left-turn lane; she was the first vehicle in this lane. When the

light turned green again, appellant testified that she was faced with a green left-turn arrow and that the traffic to her right had a full green signal. She then entered the intersection and

proceeded to turn left onto Veteran's Highway, which, by necessity, required her to traverse the eastbound lanes of Benfield Road. Appellant testified further that, when she was about halfway through the intersection, but not before, she turned and saw a white car coming toward her. That vehicle subsequently struck

hers, throwing appellant across the car into the front passenger's seat.

-3At the same time, appellee was proceeding eastbound on

Benfield Road in a Toyota Camry.

She testified that, as she

approached the intersection, she observed twice that the light was a full green in her favor. Upon reaching the intersection, she

checked the light again, and, still observing the full green signal, she entered the intersection, only to have appellant's vehicle cross directly in front of her. just behind the front wheel. Her car struck appellant's

Appellant's car then spun, and the

rear of appellant's car struck the driver's side of appellee's vehicle. There were two passengers in appellee's car at the time

of the accident, both of whom testified to the same essential facts as appellee. Thus, it appears that each party believed that she had the right-of-way at the intersection. Each party testified that she

had a green light in her favor -- a green arrow for appellant; a full green for appellee -- at the time they entered the intersection, and, other than the testimony of each side, there was no evidence tending to show otherwise. appellant believed that, because According to her testimony, she had a green arrow, the

eastbound traffic was stopped by a red light, and, thus, it was safe for her to proceed with her left turn. Similarly, appellee

and the passengers in her vehicle testified that the light was a full green in their favor; therefore, appellee too believed that it was safe for her to enter and cross the intersection. There was no

-4evidence adduced at trial to indicate that, when westbound traffic on Benfield Road has a green left-turn arrow, the eastbound lanes are faced with a red signal, or vice versa, even though that fact might be common knowledge. Unfortunately, as was shown, both cars

could not occupy the same space at the same time. At the close of the evidence, the circuit court charged the jury. With respect to the law governing the conduct of motorists

at intersections; over the objection of appellant's counsel, the court provided the following instruction: The requirement under Maryland motor vehicle law for making a left-hand turn is as follows: If a driver of a motor vehicle intends to turn to the left at an intersection or into an alley or private road or driveway the driver shall yield the right-[of]-way to any other vehicle that is approaching from the opposite direction and is in the intersection or so near it as to be an immediate danger. That's Maryland Transportation Article, Section 21-402(a). Additionally, the circuit court instructed the jury: You can utilize the inferences which you draw from the evidence which comes before you. You can rely on your own common sense, everyday experiences, . . . and you also can rely upon inferences which can be fairly drawn from the evidence provided . . . in court. Neither the extract nor the record contains a copy of the jury instructions requested by either party below. Hence, we have no

way of knowing, apart from counsel's objection, precisely those instructions that were requested and that the court refused.

-5Following the charge, the court held a bench conference, during which appellant's counsel stated: I have one objection for the record, Your Honor. (inaudible) concerning the left-hand turn law, for the record, counsel has represented that (inaudible) regardless of the circumstances, I find it hard to (inaudible) if so these cases would be disposed of with summary judgment concerning a left-hand turn, that issue, so we just object to.[1] Following an unsuccessful Motion for New Trial, appellant noted this timely appeal.

Discussion It is clear that "[a] litigant is entitled to have his theory of the case presented to the jury," Levine v. Rendler, 272 Md. 1, 13 (1974) (citations omitted); Wegad v. Howard St. Jewelers, 326 Md. 409, 414 (1992); Sergeant Co. v. Pickett, 285 Md. 186, 194 (1979), provided that his "theory of the case is a correct exposition of the law and there is testimony in the case which supports it," Levine, 272 Md. at 13. In

other words, "the general rule regarding instructions to the jury has two aspects: (1) the instruction must correctly state the law, and (2) that law must be applicable in light of the evidence before the jury." Sergeant, 285 Md. at 194; Wegad, 326 Md. at 414; see also

We note that the court reporter was unable to transcribe the objection that is at the crux of the case sub judice in its entirety. Such omission will not, however,
preclude our resolution of this matter on its merits.

1

-6Odenton Dev. v. Lamy, 320 Md. 33, 43 (1990); E.G. Rock, Inc. v. Danly, 98 Md. App. 411, 421 (1993); Keesler v. Equity Mgmt., Inc., 82 Md. App. 577, 593 (1990). "While it is usually more helpful to a jury to have instructions which take into account the factual contentions of the parties, such a charge is not required, and one in general terms may be given." omitted). Belleson v. Klohr, 257 Md. 642, 654 (1970) (citation

Indeed, Maryland Rule 2-520(c) does not require the

court to "grant a requested instruction if that matter is fairly covered by instructions actually given." Accordingly, the

"[r]efusal to give an instruction applicable to the issues, when it is not covered by other instructions, is a ground for reversal . . . if the error in refusing the instruction was material and prejudiced the complaining party." 248-49 (1950). Appellee asserts, however, that this issue has not been preserved for our review because appellant neglected to request any instructions governing the conduct of motorists at intersections prior to the court's charge to the jury. Notably, appellee does Singleton v. Roman, 195 Md. 241,

not contend that appellant's exception following the instructions was insufficient to preserve the issue. While we agree that it

would have been prudent for appellant to have made a request for the instructions she desired, appellee misreads Rule 2-520(e). That subsection of the Rule reads, in pertinent part:

-7No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury . . . . Simply stated, it is the objection made after the court instructs the jury that preserves the issue for our review, not the failure to request an instruction prior to the charge. See Fairfax Savings v.

Ellerin, 94 Md. App. 685, 696 (1993), aff'd in part and vacated in part, 337 Md. 216 (1995); Edmonds v. Murphy, 83 Md. App. 133 (1990), aff'd, 325 Md. 342 (1992). Thus, if appellant had requested such an instruction but

then failed to object when the court omitted it from its charge, the issue would have been waived. Sergeant Co. v. Pickett, 283 Md. 284,

288 (1978) (stating that the purpose of requiring an objection following the instructions is to enable the trial court to correct any error or omission in the charge). Appellant contends that the circuit court erred when it instructed the jury: By only reading [

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