(dissenting in part). With much of the court’s opinion I agree, but I am not persuaded that the Maryland law is in accord with the trial court’s charge, although concurred in by defendant’s trial attorney, and I see no occasion for another trial.
It is doubtful that the vehicle in which the plaintiffs were riding at the time of the accident was as defective as their husband and father, the driver of the car, claimed it to be. Giving full credence, however, to his testimony, we have a case where the head of a family was consciously driving a murderous vehicle and chose for his purposes to take his family on the ride. When the inevitable happened, he wants to shift the loss to his employer, the owner of the vehicle.
The gross and what can only be labeled criminal negligence of the driver in taking his family in the car is admitted. I think it is clear, moreover, that the negligence of the driver did not stop there, although that is where the alleged negligence of the defendant stopped. The accident was due principally, if not entirely, to the way the car was being driven at the time of the accident. It is the testimony of the driver that the only time he had trouble with the car was when the weather was wet, and that nevertheless he drove the car at the same speed under those conditions as under favorable weather conditions. At the time of the accident, when the road was wet, he was driving at between thirty and thirty-five miles an hour. To my mind this was clearly negligent operation of the car, in the light of the claimed condition of the car and known condition of the road.
Certainly the primary negligence and the primary responsibility for this accident rest upon the driver of the car. I think that it is the sense and spirit of the Maryland law in such a case that the wife and children of the one primarily at fault may not recover against his employer. In my view the complaint should have been dismissed at the end of the plaintiffs’ case in accordance with the motion made by defendant at that time.
Cohn, Callahan and Breitel, JJ., concur with Dore, J.; Peck, P. J., dissents in part and votes to dismiss the complaint, in opinion.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.