UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CURTIS LYDELL WHITE,
Plaintiff-Appellant,

v.

ROY THOMAS ROGERS; CHURNS
TRUCK LINES, INCORPORATED,                      No. 96-2753
Defendants-Appellees,

and

MELVIN CLENTION JOHNSON,
Defendant.

CURTIS LYDELL WHITE,
Plaintiff-Appellee,

v.

ROY THOMAS ROGERS; CHURNS
TRUCK LINES, INCORPORATED,                      No. 96-2860
Defendants-Appellants,

and

MELVIN CLENTION JOHNSON,
Defendant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-3060-MJG)

Argued: January 26, 1998

Decided: February 25, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Olugbenga Olatokumbo Abiona, Philadelphia, Pennsyl-
vania, for Appellant. Mark Ira Cantor, Owings Mills, Maryland, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Curtis Lydell White was injured in an automobile accident, while
the front seat passenger in a car driven by his cousin, Melvin Johnson.
The car collided with a tractor trailer operated by Roy Thomas Rogers
and owned by Churns Truck Lines, Inc. White brought this diversity
action against Johnson, Rogers, and Churns for their asserted negli-
gence in causing the accident and the resulting serious injuries he suf-
fered. A jury awarded White a substantial verdict against his cousin,
Johnson, but found Rogers and Churns not negligent. White appeals,
challenging the district court's refusal to hold Rogers and Churns neg-
ligent as a matter of law under the Maryland boulevard rule. White
also appeals the court's decision to admit evidence relating to John-
son's intoxication. Finding no error, we affirm.

I.

At about 8:00 pm on the evening of April 26, 1993, Rogers went
to work at the Churns terminal in Exmore, Virginia, where he has

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been employed as a truck driver for over nineteen years. After
inspecting his truck, Rogers left the terminal at about 8:30 pm, en
route to Woodbine, Maryland, to deliver his cargo of shrubbery early
the next morning. At about 9:30 pm, Rogers arrived at a truck stop
in Pocomoke, Maryland. He remained there for approximately two
hours, chatting and drinking coffee. The truck stop is located off of
the northbound side of Maryland Route 13, a highway with two lanes
running in each direction.

At about 11:30 pm that same evening, Johnson and White left a
party at the home of Johnson's mother, driving in Johnson's car. Both
Johnson and White were intoxicated well over the legal limit. After
the accident Johnson's blood alcohol level measured 0.27 and White's
measured 0.263; a blood level of 0.10 demonstrates legal intoxication
in Maryland. See Md. Code Ann., Transp.§ 16-205.1 (Supp. 1997).
A friend of Johnson and White who followed them from the party and
witnessed the accident testified that Johnson traveled north on Route
13, stayed in the right lane, adhered to the speed limit (which is 55
mph on the relevant portion of Route 13), and drove normally.

According to White, as Johnson drove past the truck stop Rogers
began to leave it from the north exit. Rogers failed to stop at the exit
or yield the right of way to Johnson, pulling instead into Johnson's
path on Route 13. White concedes that Johnson at least briefly turned
his attention from the road to talk to White, who apparently was
asleep at the time. When he saw Rogers, Johnson tried to veer to the
left, but ran into the left rear corner of the Churns truck. White
received severe, permanent, and disfiguring injuries, including inju-
ries to his brain, face, and spine. Johnson was arrested for and pled
guilty to driving while intoxicated, in violation of Md. Code Ann.,
Transp. § 21-902(a) (Supp. 1997).

Not surprisingly, Rogers tells quite a different version of the story.
According to Rogers, he returned to his truck between 11:45 pm and
12:00 midnight. He inspected his lights and tires, got into the truck,
looked in the mirror and saw nothing coming down the highway. He
then proceeded to the north exit of the truck stop, and stopped to look
again for approaching traffic. Again he saw no vehicles approaching
and entered the highway. He states that he had reached seventh gear
(out of ten) when Johnson's lights appeared behind him.

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The parties also differ as to many other essential facts of the acci-
dent, particularly the distance the truck had traveled from the north
exit of the truck stop prior to impact. White maintains that based on
a Maryland state trooper's recollection of Rogers' on-scene state-
ments and the measurements taken by one of Rogers' experts, the
truck traveled only 94 feet. Rogers' testimony and the evaluation of
his expert indicate that the truck had traveled approximately 600 feet
on the highway, had reached a speed of between 25 and 40 miles per
hour, and took approximately 25 seconds to do so. Rogers' expert
also concluded that Johnson was traveling between 35 and 55 miles
per hour and was located about two- or three-tenths of a mile behind
Rogers when Rogers entered the highway. Everyone agrees that visi-
bility down the highway that evening was about one to one-and-a-half
miles.

In the course of ruling on several motions in limine, the district
court denied White's motion to exclude evidence of Johnson's intoxi-
cation. The court also decided to submit the questions of negligence
and proximate cause to the jury. The jury found Johnson, but not Rog-
ers or Churns, liable.

White thereafter moved for judgment as a matter of law pursuant
to Federal Rule of Civil Procedure 50(b), which the district court
denied. Judge Garbis explained that "[t]he parties presented different,
and in many essential particulars, conflicting, evidence regarding how
the car . . . came into contact with the truck. . . . There was a quintes-
sential issue of fact as to whether the truck had cleared the intersec-
tion and entered the flow of traffic prior to the time the car came onto
the scene." This appeal followed.1

II.

Initially, White argues that the district court erred by submitting the
question of Rogers' and Churns' negligence to the jury. White con-
tends that Maryland law requires the district court to determine, as a
matter of law, that on this record Rogers violated the boulevard rule.
_________________________________________________________________
1 Rogers and Churns have filed a protective cross-appeal, in the event
that we set aside the jury verdict. In view of our holding, we need not
address their cross-appeal arguments.

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White principally relies on Quinn Freight Lines, Inc. v. Woods, 266
Md. 381, 385 (1972), in which the Maryland Court of Appeals reiter-
ated

          the well established rule that when a driver of a motor vehi-
          cle enters a through highway in violation of the boulevard
          law and as a result thereof his vehicle is involved in a colli-
          sion with a vehicle traveling on the through highway, he is
          guilty of negligence as a matter of law.

In response, Rogers contends that the boulevard rule does not require
that the court conclude that he was negligent as a matter of law
because he had entered the flow of traffic at the time of the accident.
For this reason, he maintains the district court properly left the ques-
tion of his negligence to the jury.

Maryland's boulevard rule provides as follows:

          The driver of a vehicle about to enter or cross a highway
          from a private road or driveway or from any other place that
          is not a highway shall stop . . . [and] shall yield the right-of-
          way to any other vehicle approaching on the highway.

Md. Code Ann., Transp. § 21-404(a), (b) (1992). The rule purports to
"expedite the flow of traffic" on highways by dividing the world into
"favored" and "unfavored" drivers and roads, such that "[t]he duty of
an unfavored driver to stop and yield the right-of-way is mandatory,
positive, and inflexible." Dean v. Redmiles , 280 Md. 137, 147 (1977).
The favored driver may depend upon the unfavored driver's obliga-
tion to obey the law, although he "may not proceed in complete disre-
gard of obvious danger." Dean, 280 Md. at 148. Moreover, the
unfavored driver's duty to yield the right-of-way to the favored driver
extends beyond the immediate area of the intersection such that "the
fact that an accident occurs outside the intersection does not bar the
applicability of the boulevard rule if the collision is the result of a vio-
lation" of the rule. Quinn, 266 Md. at 386-87; see Simco Sales Serv.
of Maryland, Inc. v. Schweigman, 237 Md. 180, 186 (1964); Grue v.
Collins, 237 Md. 150, 157 (1964).

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The rule may be "mandatory, positive, and inflexible" when
applied, but it has limits to its applicability. Once an unfavored driver
has succeeded in entering the flow of traffic on the highway without
interfering with a favored vehicle's right-of-way, an unfavored driver
has fulfilled his obligations under the rule and assumes the same sta-
tus as drivers of vehicles already traveling on the highway. See, e.g.,
Dean, 280 Md. at 149; Creaser v. Owens, 267 Md. 238, 244 (1972);
Quinn, 266 Md. at 387; Grue, 237 Md. at 157-58; McCann v. Crum,
231 Md. 65, 68 (1963); Mallard v. Earl, 106 Md. App. 449, 468
(1995); Hansen v. Kaplan, 47 Md. App. 32, 37 (1980); Gazvoda v.
McCaslin, 36 Md. App. 604, 613-14 (1977).

Where a credible evidentiary dispute exists as to whether the unfa-
vored driver failed to yield or had entered the flow of traffic prior to
the accident, the issue of the unfavored driver's negligence properly
belongs to the province of the fact finder. See Grue, 237 Md. at 158;
Ness v. Males, 201 Md. 235, 239-41 (1953); Great Coastal Express,
Inc. v. Schruefer, 34 Md. App. 706, 722 (1977); Paul v. Lyons, 34
Md. App. 93, 97 (1976); Carter v. Correa, 28 Md. App. 397, 402-03
(1975); Kowalewski v. Carter, 11 Md. App. 182, 189-90 (1971); see
also Goosman v. A. Duie Pyle, Inc., 206 F. Supp. 120, 127-28 (D.
Md. 1962), rev'd on other grounds, 320 F.2d 45 (4th Cir. 1963).

White fails to acknowledge this line of precedent. Instead, he
focuses almost wholly on Quinn. At first glance certain language in
Quinn seems to support White's argument. Almost immediately after
reciting the rule that an unfavored driver's duty extends beyond the
confines of the intersection, the Quinn court stated:

          In no case have we held that a different procedure should be
          followed where the accident occurs outside the intersection
          and the question of law is properly raised. It is for the trial
          judge . . . to rule on the applicability of the boulevard rule
          as a matter of law.

Quinn, 266 Md. at 387 (emphasis added).

A closer look at Quinn resolves any ambiguity. The Quinn court
included the quoted language in response to its"fear" that certain lan-
guage in the intermediate appellate court's opinion in that case might

                     6
be misinterpreted. The Court of Appeals feared any"erroneous infer-
ence that when a violation of the boulevard rule results in an accident
which occurs under the present circumstances outside the intersection,
there remains some additional question of fact as to whether the viola-
tion constitutes negligence per se." Quinn , 266 Md. at 384-85. Thus,
the Quinn court sought to dispel any doubt about whether "some addi-
tional question of fact" exists after it is determined that the boulevard
rule applies and has been violated.

But as Quinn itself recognized, once an unfavored vehicle has suc-
cessfully entered the flow of traffic on the favored road "the boule-
vard rule ceases to be applicable." Quinn, 266 Md. at 387. The line
of precedent cited above directs that when a credible dispute exists as
to whether the unfavored vehicle had successfully joined the flow of
traffic -- i.e., a dispute as to whether the boulevard rule even applies
-- the question belongs to the jury. The Quinn court premised its
entire discussion on the notion that, although the accident occurred
outside the intersection, the rule applied and the accident resulted
from a violation of the rule. The court simply explained that in such
situations the trial court must apply the rule to hold the unfavored
driver negligent as a matter of law. In those circumstances, no addi-
tional fact finding was necessary. See also Creaser, 267 Md. at
244-45 ("when the `boulevard rule' is applicable the unfavored driver
is negligent as a matter of law" and "if an unfavored driver is involved
in an accident with a favored vehicle under circumstances where the
boulevard rule is applicable then . . . the unfavored driver is deemed
to be negligent as a matter of law") (emphasis added); cf. Dennard v.
Green, 335 Md. 305, 307, 321-23 (1994) (even in an action by a pas-
senger against both the favored and unfavored drivers in which the
boulevard rule applies it is not necessary, given the definition of
"right-of-way" under the Code, to find at least one of those drivers
negligent as a matter of law, and it would be an invasion of the prov-
ince of the jury to hold otherwise even where there was sufficient evi-
dence that the favored driver operated his vehicle negligently and
unlawfully and/or that the unfavored driver failed to yield the right-
of-way).

Because the parties offered conflicting evidence regarding the
events leading up to the accident,2 the district court properly submit-
ted the issues of negligence and proximate cause to the jury.
_________________________________________________________________
2 At oral argument, White asserted that because the maximum speed
limit on the relevant portion of Route 13 was 55 mph and Rogers clearly

                    7
III.

White also argues that the district court's decision to admit evi-
dence of Johnson's intoxication and the testimony of Dr. Yale Caplan
as to the effects of intoxication unfairly prejudiced White. See Fed.
R. Evid. 403. White asserts prejudice because "[a]t no time did Rog-
ers provide any evidence of any act or omission to act by Johnson,
attributable to his intoxication, that directly resulted in the accident."
Brief of Appellant at 32. We find this argument wholly meritless.

The evidence was critical to whether Johnson operated his automo-
bile negligently, as well as to the cause of the accident. "While evi-
dence of intoxication does not, as a matter of law, constitute
negligence per se, such evidence may be admissible to prove negli-
gence" because "[e]vidence of intoxication frequently is part of a
causal chain" and "such evidence is probative and relevant." Mitchell
v. Montgomery County, 88 Md. App. 542, 555-56 (1991); see Quinn,
266 Md. at 389. We cannot conclude that the district court abused its
discretion in admitting the evidence of Johnson's intoxication, partic-
ularly in light of the admission of Johnson's contemporaneous inat-
tention.

Similarly, where evidence exists that a driver was intoxicated at the
time of an accident, expert testimony as to how the intoxication
affects the driver's ability to operate the automobile is admissible
under Maryland law. See Hickey v. Kendall, 111 Md. App. 577,
611-13 (1996), aff'd sub. nom., Kendall v. Nationwide Ins. Co., 348
Md. 157 (1997) (trial judge did not err in admitting testimony of same
Dr. Yale Caplan regarding effect of marijuana use on driver);
Mitchell, 88 Md. App. at 556-58 (trial judge did not err in admitting
testimony of same Dr. Caplan as to effects of alcohol intoxication on
_________________________________________________________________

had not reached that speed, Rogers could not have successfully entered
the flow of traffic. Despite counsel's contentions, no Maryland court has
held that an unfavored vehicle must reach the maximum allowable speed
in order to successfully join the flow of traffic for boulevard rule pur-
poses. We refuse to so hold, lest we make a mockery of the very notion
of a maximum limit. Although the speed limit may be relevant to the
inquiry, it is not determinative.

                     8
"coordination, length of reaction time, blurred and double vision, lack
of peripheral and side visions, problems with depth perception, and
lack of ability to generally comprehend and make decisions and per-
form tasks" (internal quotation omitted)). Much like his testimony in
Mitchell, Dr. Caplan testified here as to "what the concentration of
intoxication meant in terms of intoxication for that particular individ-
ual" and his conclusions were "related to Mr. Johnson's conduct
which might have contributed to the accident." Brief of Appellant at
40 (quoting the testimony offered by Dr. Caplan). The district court
did not abuse its discretion in admitting this testimony.3

AFFIRMED
_________________________________________________________________
3 At the outset of his brief, White maintains that the jury's verdict was
contrary to the weight of the evidence. White failed to develop the argu-
ment either in the brief or at oral argument. In any event, no doubt exists
that the evidence, viewed in the light most favorable to Rogers, the non-
movant, supports the jury's verdict.

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