Preview:

This case concerns the scope and application of the Boulevard Rule in a situation in which the favored and unfavored drivers have both been sued by the favored driver's passenger. Appellant, Dale

Mallard, was the favored driver in an automobile that collided with a bus operated by appellee, Franklin Hall; appellee Matthew Earl was a passenger in Mallard's car. Earl filed suit in the Circuit

Court for Prince George's County against Mallard, Hall, and Hall's employer, appellee Board of Education for Prince George's County (the "Board"). After the court denied Mallard's motions for

judgment, the jury found that Mallard had been negligent but that Hall had not been negligent. Thereafter, the court denied

Mallard's motion for judgment notwithstanding the verdict ("JNOV"). From the judgment entered against him, Mallard has appealed. Earl

has filed what he has styled as a "conditional cross-appeal;" he asks us to reach his cross-appeal only if we reverse or vacate the judgment against Mallard.

ISSUES Mallard raises several issues for our consideration: I. Did the Trial Court err in not granting Defendant Mallard's Motions for Judgment and Motion for Judgment Notwithstanding the Verdict? A. Did the Trial Court erroneously permit the issue of negligence of the favored driver, Appellant Mallard, vel non, to reach the jury in violation of the statutory right-of-way under the Boulevard Rule? B. Assuming Arguendo That Legally Sufficient Evidence Was Presented At Trial To Divest the Appellant of His Statutory Right-Of[-]Way

Under The Boulevard Rule, Was The Evidence Presented At Trial Was [sic] Insufficient to Establish That Any Alleged Excessive Speed or Inattention By Appellant Mallard Was The Proximate Cause of the Accident? II. Did the trial court erroneously refuse to instruct the jury on the continuing duty under Maryland's Boulevard Rule of the unfavored driver to continuously yield the right-of-way to favored drivers as the unfavored driver crosses the boulevard?

Earl asks us, in the event we reverse or vacate the judgment against Mallard, to consider two additional issues: I. Did the trial court err by refusing to instruct the jury regarding the unfavored driver's duty to yield the right of way throughout his journey across the boulevard[?] Did the trial court err when it refused to admit into evidence a copy of the docket entries from the case known as State v. Franklin Hall, from the District Court of Maryland for Prince George's County, showing that defendant Hall had tendered a plea of guilty for failing to yield the right of way, and by refusing to admit into evidence the transcript from said case containing statements made by defendant Hall[?]

II.

We hold that the trial court erred in denying Mallard's motions for judgment and judgment notwithstanding the verdict. We

further hold that Earl's claim of error as to the jury instruction is meritorious. Accordingly, we shall reverse and remand for a new As a result, we

trial concerning Earl's claim against Hall only. decline to reach Earl's remaining issue.

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FACTUAL BACKGROUND On the morning of June 6, 1990, motor vehicles operated by Mallard and Hall collided in the town of Seabrook, Maryland at the intersection of Good Luck Road and a sideroad. Good Luck Road runs

east-west with two lanes in each direction, divided by a double yellow line; it has a posted speed limit of 35 miles per hour. two-lane sideroad changes at Good Luck Road: The

To the north, it is

undivided and is called Palamar Drive; to the south, it is divided by a grass median and is called Woodstream Drive. Palamar and

Woodstream both are governed by stop signs at the intersection with Good Luck Road. Also, from the intersection, Good Luck Road curves

gradually northward along both the eastbound and westbound lanes. At the time of the accident, Mallard, who was 17 years old, was driving his father's automobile eastbound on Good Luck Road. Earl and his two sisters were passengers in Mallard's vehicle. Hall was driving a school bus south on Palamar. The bus, which The is

fortunately was empty, was about 40 to 45 feet in length. parties contest various details of the collision, but it

undisputed that Mallard's car hit the bus between its right rear wheel and rear bumper while the bus was crossing Good Luck Road. At trial, Mallard and his passengers (including Earl) all testified that Mallard was driving between 35 and 40 miles per hour.
1

Prior to the collision, "thrash" music1 was playing on the

Mallard described "thrash" music as "a bit faster," "a little bit heavier," and "a little bit [more] hard core" than ordinary -3-

tape player, and Mallard's passengers were engaged in conversation. Nevertheless, the passengers testified that Mallard had not chosen the music, did not control the volume, and did not take part in the conversation. Moreover, they said that Mallard apparently was

paying "full attention" to his driving and did not drive recklessly. None of Mallard's passengers noticed the bus until they heard

Mallard yell "look out" just before impact, and they could not recall whether Mallard ever took any specific evasive action. Mallard asserted that he first saw the intersection as he was about 275 and 300 feet from it, while driving in the fast eastbound lane.2 275 Further, he saw Hall's bus at a distance of about 250 to as the bus approached the stop sign at Palamar.

feet,

According to Mallard, when Mallard was about 175 to 200 feet from the intersection, he observed that Hall failed to stop at the stop sign and rolled across the two westbound lanes of Good Luck Drive. Seeing this, Mallard "let up on the gas," expecting the bus to accelerate across Good Luck and enter Woodstream. Instead, he

said, the bus stopped with its front on Woodstream and its rear partially blocking the fast eastbound lane. Mallard testified that

heavy metal music. Specifically, he recalled that the music playing at the time was performed by one of two groups, "Mega Death" or "Metallica." For the sake of consistent referencing, we shall call the various lanes, beginning with the northernmost westbound lane (i.e., the lane adjacent to the curb), as follows: the "slow" or "curbside" westbound lane, the "fast" westbound lane, the "fast" eastbound lane, and the "slow" or "curbside" eastbound lane. -42

he swerved into the westbound lanes to avoid the bus, but had to swerve back into the eastbound lanes to avoid oncoming westbound traffic. He hit the brakes, but to no avail. Mallard admitted,

through deposition testimony read at trial, that he "didn't slam on [his] brakes at any point in time until [he] was about to hit the bus." Mallard estimated that the whole incident, from the time

Hall entered the eastbound lanes until impact, occurred in less than five seconds. Hall painted a contrasting picture. He averred that, at the

point that he approached Good Luck, he came to a complete stop at the stop sign, but he could only see up to 60 feet eastbound and 50 feet westbound. After looking both ways, he began to proceed Hall first saw Mallard's car when the bus

slowly across Good Luck.

entered the fast westbound lane, but before it had crossed the median. Hall estimated that when he then saw Mallard's car it was Hall

about 120 to 150 feet away in the curbside eastbound lane.

acknowledged that he only caught a glimpse of Mallard and, based on that glimpse, Hall "flinched." But, as he believed he could He admitted

traverse Good Luck safely, he accelerated his bus.

never looking back toward Mallard, but denied stopping the bus prior to the collision. Although Hall is a professional driver, he Hall

could not offer even an approximation of Mallard's speed.

believed, however, that Mallard was travelling "well in excess" of 35 miles per hour.

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DISCUSSION I. Mallard's Motions For Judgment

Preliminarily, we observe that a party is entitled to a motion for judgment or for JNOV when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party's claim or defense. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 248-49 (1971); Smith v. Bernfeld, 226 Md. 400, 405 (1961). On review,

this Court must assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the decision of the trial court in favor of the nonmoving party. Campbell v. Baltimore Gas & Elec. Co., 95 Md. App. 86, 94, cert. denied, 331 Md. 196 (1993).

"[I]f there be any evidence, however slight, legally sufficient as tending to prove negligence, . . . the weight and value of such evidence will be left to the jury." "Legally sufficient" means "that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value." Myers v. Bright, 327 Md. 395, 399 (1992) (quoting Fowler v. Smith, 240 Md. 240, 246 (1965) (emphasis added in Myers)). Franklin v. Gupta, 81 Md. App. 345, 354 (1990). See also

If, however, the

evidence, taken as a whole, does not rise above speculation,

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hypothesis, and conjecture, then the trial court should not allow the jury to consider the issue, and the denial of a motion for judgment or JNOV would be error. Myers, 327 Md. at 399; see also

Higgins v. City of Rockville, 86 Md. App. 670, 687, cert. denied, 323 Md. 309 (1991). As noted, to support his assertion that he was entitled to judgment, Mallard has relied on the Boulevard Rule. Although the

Rule has roots in cases prior to 1939, the widely acknowledged source of the Rule is Greenfield v. Hook, 177 Md. 116 (1939). See

Dean v. Redmiles, 280 Md. 137, 143-47 (1977) (tracing history of the Boulevard Rule). The Rule arises from the historical statutory

mandate that a driver at an intersection who is required to stop before entering the intersection (called the "unfavored driver") must yield the right-of-way to a driver not required to stop before entering (called the "favored driver"). Owens, 267 Md. 238, 244-45 (1972). Id. at 143-44; Creaser v.

Originally, if the unfavored

driver failed to yield the right-of-way and a collision ensued, the unfavored driver was absolutely liable as a matter of law.

Creaser, 267 Md. at 245. After 1971, when the Legislature modified the definition of "right-of-way,"3
3

the

Court

began

to

recognize

a

significant

Originally, "right-of-way" was defined as "[t]he privilege of the immediate use of the highway;" Md. Ann. Code of 1957, Art. 66

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