COLLINS, J., delivered the opinion of the Court.
Fleetway Cab Company, appellee, sued William F. Kremer, appellant, in the Baltimore City Court in tort for damages arising out of a collision between appellant's Hudson automobile and appellee's taxicab at 3 P.M. on November 1, 1949. The appellant was driving east on Chase Street, a one-way street, and appellee's cab was being operated north on Guilford Avenue, a two-way street, about sixty feet in width. The collision occurred at the intersection of those two streets, the appellee's cab approaching the intersection from appellant's right. The jury rendered a verdict for the appellant. Although no motion for a directed verdict had been made by the appellee, after the verdict it filed a motion for a judgment n.o.v. or in the alternative for a new trial. The trial judge granted the motion for a judgment n.o.v. and entered judgment in favor of the appellee for the sum of $334.85, with interest from date and costs. From that judgment the appellant appeals.
David J. Bishop, the operator of the cab for the appellee, testified that he was driving north on Guilford Avenue, near its intersection with Chase Street. He was "straddling the inside car track" with his right wheel. There was no car in front of him. The weather was clear, the street dry, and he was acquainted with the intersection of Chase Street and Guilford Avenue. As he neared this intersection he was driving approximately twenty to twenty-five miles an hour. He could not tell the exact speed of the cab. As he approached the building line on Chase Street he said he took his "foot off the gas, raised it to the brake and looked to the left, knowing it was a one-way street. I saw on an angle into Chase Street. I couldn't see very far into Chase Street, because you have to look at an angle. I didn't see anything on my left in that angle of vision. I took my foot off the brake and started on across and just as I started across, I noticed the other car coming down * * * east on Chase Street, coming into the intersection, and giving no indication he was going to stop or slow down. I immediately took my foot off the gas, onto the brakes, but before the brake took hold, I hit him * * * right in the middle of the right front door. * * * After we hit, my car stopped right at the impact and when I got out of the cab, I noticed the other gentleman's car was east of Guilford Avenue on Chase Street."
Dr. Kremer, the appellant, testified that he was driving down Chase Street about three feet from the south curb
Assuming, without deciding, that the appellant was negligent we will first discuss whether there was sufficient evidence of contributory negligence on the part of the appellee to submit the case to the jury, looking at the evidence in the light most favorable to the appellant.
Code, Article 66 1/2, Section 176, provides that when traffic is not controlled by traffic lights or stop signs, all motor vehicles "shall have the right of way over other vehicles * * * approaching at intersecting public roads from the left, and shall give right of way to those approaching from the right." This language is the same as Article 56, Section 209, of the Code of 1924, which was construed by this Court in Taxicab Co. v. Ottenritter, 151 Md. 525, 531, 135 A. 587, 589. In that case this Court said: "While it was incumbent upon the plaintiff to respect the rule giving right of way, at street intersections, to vehicles approaching from the right * * * yet if the way for a safe distance was clear of traffic coming from that direction, he should not judicially be declared negligent in not providing against the possibility of collision with a car which could not come into dangerous
It was said by this Court in the case of Wlodkowski v. Yerkaitis, 190 Md. 128, 57 A.2d 792, 794: "* * * the statutory right of way rule is regarded as a cautionary guide, rather than a peremptory command. The statutory rule qualifies the common law rule giving the right of way to the first arrival at an intersection, but does not abrogate it. The width of the intersecting highways, the relative speed of the vehicles, and various other circumstances might materially affect the issue as to whether an asserted right of way should be recognized. The question whether a vehicle coming from the right is sufficiently near the intersection to have the right of way over a vehicle coming from the left must be determined
The appellee relies on the case of Askin v. Long, 176 Md. 545, 6 A.2d 246, 249. That case was one in which both drivers as a matter of law were guilty of concurrent negligence, disentitling each to recover. There, the unfavored driver's testimony was characterized as "so inconclusive, contradictory, and uncertain as to not be accepted as the basis of a legal conclusion." There was no evidence of excessive speed and no credible evidence as to the distance of the favored vehicle at the time the unfavored vehicle started to cross the intersection and no inference that it was safe for the unfavored vehicle to proceed. That case is hardly in point here. The appellee also relies on Crawford v. Baltimore Transit Co., 190 Md. 381, 58 A.2d 680; Gross v. Baltimore Transit Co., 192 Md. 278, 64 A.2d 147; and the Bearings Service Co. v. Baltimore Transit Co. 197 Md. 1, 77 A.2d 779. These cases all involved collisions between motor vehicles and street cars and are not helpful here.
In this case, in deciding whether the appellee was not guilty of contributory negligence as a matter of law, we must of course assume that the testimony of the appellant was true. He said when he looked the second time and stopped he could not see the appellee's taxicab and definitely it was not within one-half block of him. To have completed crossing this intersection he would
As previously pointed out in this case, no motion for a directed verdict was filed by the appellee. Rule 8 of the Rules of Practice and Procedure, pt. 3, subd. III, Trials, Judgment n.o.v., which allows the entry of a judgment n.o.v., provides as a necessary preliminary to the granting of that judgment "* * * a motion for a directed verdict made by a party at the close of all the evidence * * *." Wright v. Baker, 197 Md. 315, 79 A.2d 159. The trial judge therefore was not authorized by the rule to grant the judgment n.o.v. and it must be reversed.
As previously stated, with the motion for the judgment n.o.v. the appellee also moved in the alternative for a new trial. Among other reasons given were that "the jury failed to follow the instructions of the Court" and "because of errors in the ruling and instruction of the court". The trial judge did not rule upon that motion for a new trial but granted the judgment n.o.v. Rules of Practice and Procedure, pt. 3, subd. III, Trials, supra. Rule 8 also provides in part: "A motion for a new trial may be joined with a motion for judgment (n.o.v.) under this rule or a new trial may be prayed
Judgment reversed, with costs, and case remanded for further proceedings.