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Rosenthal v. Mueller12/3/1998
REPORTED
This appeal turns on a simple principle. With respect to the legal phenomenon of "contributory negligence," the limiting adjective "contributory" is just as significant and just as necessary an element as is the noun "negligence." Untold thousands of acts of negligence, as purely abstract phenomena, go regularly unnoticed and are legally inconsequential unless they actually contribute to some adverse result.
The appeal arises from a personal injury suit brought by the appellants, Marilyn Rosenthal and Louis Rosenthal, wife and husband, against the appellees, Lee McEvoy Mueller and John Roger Mueller. Because the automobile accident itself involved only Marilyn Rosenthal and Lee McEvoy Mueller, however, we will for narrative convenience refer to them as the appellant and the appellee in the singular. At the conclusion of a jury trial in the Circuit Court for Baltimore City, the appellee was found negligent, but the jury also found that the appellant had been contributorily negligent. We are presented with a single issue on appeal:
Did the trial court err in submitting the issue of contributory negligence to the jury?
We agree with the appellant that the trial court improperly submitted the issue of contributory negligence to the jury and reverse the judgment below.
On September 9, 1994, the appellant was driving southbound on Falls Road towards its intersection with Woodward Lane. Falls Road at that point is a two-lane roadway with one lane for northbound traffic and one for southbound traffic. The posted speed limit is forty miles per hour. Woodward Lane extends only to the east of Falls Road. It does not cross the road to the west. On the west side of the roadway at that point is what is described as either a passing lane or a shoulder area separated from the traveled portion of the roadway by a solid white line. The area to the right of the solid white line, moreover, is paved exactly as is the through-lane to the left of the solid white line. Farther to the right of the passing lane or shoulder is a curb and a guardrail. For southbound traffic on Falls Road, there is immediately before the intersection with Woodward Lane both the crest of a hill and a blind curve.
As the appellant approached the intersection, she observed ahead of her a truck at a complete stop in the southbound lane with its left turn signal blinking. The appellant, who had been traveling at approximately twenty-five miles per hour, attempted to pass the truck on the right-hand side in what she contends was a "passing lane" or, at least, the shoulder portion of the road, separated from the rest of the roadway by a solid white line. The appellant was in the process of passing the stationary truck when the right rear of her car was suddenly struck by the appellee's vehicle and propelled into the truck.
The appellee testified that as she came across the crest of the hill and around the blind curve, she unexpectedly saw immediately in front of her 1) the truck as it was poised to make the left-hand turn and 2) the appellant's vehicle as it was in the act of passing the truck on its right-hand side. She testified that when she rounded the curve and first saw the two vehicles in her path, they were only two or three car lengths away. The appellee was at that point in the main southbound lane of Falls Road. She was not herself on the shoulder or even contemplating a move to the shoulder in order to go around the truck. In the two to three seconds available to her from her first sighting of the other two vehicles until the moment of collision, the appellee, who was driving at approximately forty miles per hour, attempted to apply her brakes and come to
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