Ausherman v. Frisch

Digges, J., delivered the opinion of the Court. The appeal in this case is from a judgment of the Circuit Court for Frederick County entered upon a verdict of the ⁸⁰ jury for the appellee for-damages for injuries resulting to the. plaintiff from a collision between' the plaintiff’s four-passenger Buick coupe and the International truck of the defendant, appellant. The scene of the accident was the main state highway leading from Frederick to> Hagerstown, the point of contact being about a mile and a half west of Middletown, Frederick County. The plaintiff was a traveling salesman covering a territory-made up of parts of Western Maryland and Southern Pennsylvania.

His home is in Baltimore. The time of the accident was about 7.30 o’clock on the morning of Monday, October 27th, 1930. It was a clear day and the road was dry. There are four exceptions in the record, three to rulings on evidence and one to' the court’s action in respect to the prayers.

The plaintiff offered only one prayer, it being as to the measure of damages; and the defendant offered nine prayers, all of which were granted except the first, second, sixth, and ninth. .The defendant filed a special exception to the plaintiff’s damage prayer, which exception was overruled. The defendant’s first and second prayers, which were rejected, asked a directed verdict in favor of the defendant, the first on the theory that there was no evidence in the case ■entitling the plaintiff to recover, and the second on the theory that the plaintiff was guilty of such contributory negligence that, as a matter of law, he was precluded from recovery. We have no hesitancy in concluding that the rejection of •these two directed-verdict prayers was proper. We deem it •unnecessary to cite the many decisions of this court in support of the settled rule that, in passing upon a prayer which is a demurrer to the whole evidence, the evidence supporting the contention of the plaintiff, and all favorable inferences which can legitimately and reasonably be drawn therefrom, must be taken as established and proved.

There is abundant testimony in the record to support the contention of the plaintiff that the accident was caused by the negligence of the defendant, without any negligent act of the plaintiff contributing thereto. There is some evidence which, if believed by the jury, would support a verdict in his favor. This ⁸¹ contradiction or conflict in the evidence makes it a typical jury case, and compels its submission to that body for a decision, whose verdict under such conditions cannot be disturbed by this court. As to contributory negligence, the appellant contends that the appellee was operating his car at an excessive and unlawful rate of speed, which negligence directly contributed to his own injury.

On the question of speed, there is no direct testimony offered by the defendant as, to the rate of speed at which the plaintiff’s automobile was being driven, but it is argued that the physical facts show that the speed was excessive and unlawful. The physical facts relied on are found in testimony by two of defendant’s witnesses as to skid marks on the road caxtsed by the application of the brakes to- the plaintiff’s car, in proximity to the point of contact, and the position of the plaintiff’s car thereafter. The existence of skid marks is flatly denied by the- state policeman, a witness for the plaintiff, who arrived shortly after the accident, having been telephoned for by the plaintiff. The witness Shipley and the plaintiff testified that he was not exceeding the lawful rate of speed, it being not more than thirty-five to thirty-eight miles an hour.

It will thus be seen that excessive speed of the plaintiff’s car, relied upon by the defendant as the prominent act of negligence contributing to the accident, is not an established fact, but, on the contrary, is strongly controverted by the plaintiff’s evidence. In Yockel v. Gerstadt, 154 Md. 188 , 140 A. 40 , it is said: “This court has repeatedly and uniformly held that to constitute contributory negligence as a matter of law, the negligent act of the plaintiff relied on must be prominent, decisive, and one about which ordinary minds would not differ in declaring it to be negligence. The act must present such features of negligence as to leave no opportunity for difference of opinion in the minds of ordinarily prudent men as to its imprudence.” And cases therein cited. If the alleged excessive and unlawful speed of the plaintiff’s car had been established, before the court could direct a verdict for the defendant on the ground of contributory negligence, ⁸² it must have been in addition shown that such speed directly contributed to the accident.

Contributory negligence, like primary negligence, is not absolute but relative, and necessarily depends upon the particular circumstances of each case. Siejak v. United Rys. & Elec. Co., 135 Md. 367 , 109 A. 107 ; Chesapeake & Pot. Tel.

Co. v. Merriken, 147 Md. 572 , 128 A. 277 ; Yockel v. Gerstadt, supra. The defendant’s fourth prayer, which was granted, submitted the question of contributory negligence to the jury in as favorable a manner as he was entitled to- have it; and his second prayer was properly rejected. The defendant’s sixth prayer was rejected. It instructed the- jury that, if they find the defendant “did not cross the center line of the road in his attempt to make a left-hand turn into- the private driveway of W. H. Caver, the plaintiff has failed to make out his cause of action, and the verdict must be for the- defendant.” The effect of such an instruction was to- tell the jury that, if they found the defendant’s truck did not cross the center line of the road, the defendant was free from all negligence.

The appellant in his brief makes no' argument in support of the correctness of the proposition contained in the prayer. It segregates one fact, and bases a verdict for the defendant upon the finding of that fact. Even if it be conceded that tinder the circumstances of this case such an instruction would be correct, in our opinion its rejection is not reversible error, because of instructions.contained in -other granted prayers of the defendant fully covering this point. Balto. & O. R. Co. v. Boteler, 38 Md. 568 ; Spencer v. Trafford, 42 Md. 1 ; Cal edonain Fire Ins.

Co. v. Traub, 86 Md. 86 , 37 A. 782 ; Horner v. Parkhurst, 71 Md. 110 , 17 A. 1027 ; Regester v. Medcalf, 71 Md. 528 , 18 A. 966 ; Etchison v. Etchison, 53 Md. 348 . The special exception to the plaintiff’s first prayer, which, was overruled, and the rejection of the defendant’s ninth prayer, raise the same question, the contention being that there was no- evidence of the plaintiff’s physical condition before the accident, and that, therefore, the jury could not. ⁸³ properly consider His condition after the accident in assessing damages. There is testimony describing the plaintiff’s condition as a result of the accident, both medical and lay, such as the force of the impact rendering the plaintiff unconscious, necessitating his spending five days in the hospital, and later being confined to' his bed over a period of two to two and a half months, causing nausea and vomiting over a long period of time, shocking his nervous system, disabling him from pursuing his occupation as a salesman; “I am selling neckwear and silk wraps; every time I pick them up I get giddy, can hardly lift them, have to have people helping me all the time.” It is true that there was no direct testimony that these conditions did not exist before the accident; but they are testified to as being the result of the accident, or caused by the accident. We think that the necessary and compelling inference from such testimony must be that they did not exist before the accident.

This form of prayer has been previously employed in cases before this court. Ashmans Pray&rs and Instructions, p. 166; (Form 276 being