Baltimore Co. v. State, Use of Keenan

Brune, C. J., delivered the opinion of the Court. The widow and children and the administratrix of Joseph W. Keenan (who are referred to below collectively as the plaintiffs) brought suit in the Circuit Court for Baltimore County against three defendants for damages for the wrongful death of Keenan. The defendants were Thomas A. Blosser, the owner and driver of an automobile in which Keenan was a guest passenger, and Baltimore County, Maryland, the owner of a street sweeper with which the Blosser car collided, and W. E. Ensor, an employee of the County, who was operating the sweeper. Keenan suffered a ruptured heart from the collision and was killed immediately.

The case was tried before a jury, which returned verdicts aggregating nearly $75,000.00 in favor of the plaintiffs and against all three defendants, and judgments were entered in accordance with the verdicts. Baltimore County and Ensor appeal from the judgments; Blosser does not. The appellants seek reversal of the judgment and a new trial ³⁵³ on three grounds: first, the exclusion of expert medical testimony concerning the percentage of alcohol in the blood of the decedent’s host driver; second, the refusal of instructions presenting to the jury the issue of the decedent’s assumption of risk or contributory negligence in riding as a passenger in Blosser’s car; and third, the allegedly misleading and prejudicial charge to the jury when considered as a whole. The accident was extraordinary.

Essentially it was a head on collision between Blosser’s car and the County sweeper which occurred in one lane of a dual highway on a bright, sunny morning, on a dry, straight and level road, free of other traffic and parked cars. Blosser was headed north in one of the two northbound lanes, the one next to the curbed median strip which separated the two portions of the dual highway. The County sweeper was sweeping next to this same curb and was in the same lane as Blosser. It was, however, proceeding south in a northbound lane.

The reason for this was that the only brush with which it was equipped that could sweep close to a curb was mounted under its right front corner. Blosser was driving “nonchalantly,” to use his own word, at a speed of thirty-five miles an hour, or perhaps a little faster, in what was testified by the Chief of the County Department of Traffic Engineering to be a thirty-mile limit zone (though Blosser said he thought it was thirty-five). Ensor was operating the sweeper at about three miles an hour. He first-saw the Blosser car when it was a block or two away and thought it would turn to avoid the sweeper.

When he realized that it would not, he stopped his vehicle. Blosser said that he saw a cloud of dust ahead of him, but did not realize that the sweeper was moving towards him until he was almost on it, and it was then too late to avoid the collision. Ensor says that he was using the sprinkler to keep down the dust and that he had a red flag on the sweeper and had its warning amber lights flashing. No markers were put out nor was there any flagman to direct traffic away from the lane Ensor was sweeping.

Prior to the accident Keenan, Blosser and a friend named Fred H. Taylor were employees of the Bethlehem Steel Company at its Sparrows Point plant. They had worked the shift from midnight of February 28-29 to about 7:45 A.M. of Febru ³⁵⁴ ary 29, 1960, and left the plant together at about eight o’clock in Blosser’s car, bound for Dundalk. There Taylor was to meet a nephew of his and go to the races, and Keenan was to get a bus to his home. Blosser had given Keenan a ride to Dundalk on prior occasions after work and usually took him to a bus stop at the Post Office.

Before reaching that point, Blosser suggested that they stop at an inn and have a drink. They did so and were soon joined by Taylor’s nephew. Taylor testified that they had four rounds of beer, each having a twelve-ounce bottle on each round, and that Blosser also ordered a two-ounce shot of whiskey. About half of this was spilled and he drank the rest.

Blosser’s testimony was substantially the same, except that he said he drank only three bottles of beer and half a “shot” of whiskey. The group spent about two hours at the inn. When they left, Taylor went with his nephew and Blosser set out with Keenan in the car to take Keenan to a bus stop. They had gone only 1500 feet when the collision occurred and Keenan was killed.

Blosser testified that Keenan had not done anything to distract Blosser’s attention from his driving, and also that he had not given any warning of the impending collision. The appellants contend that Blosser was under the influence of intoxicating liquor when he and Keenan set out from the inn in Blosser’s car and that Keenan knew it or should have known it, and therefore either assumed the risk of accident, or was guilty of contributory negligence in entering and riding in the car driven by Blosser. A post mortem examination of Keenan included in the medical records introduced by the plaintiffs showed that Keenan’s blood had an alcoholic content of 0.13% of alcohol. The police officer who investigated the accident said that he noticed the odor of alcohol on Blosser’s breath just after the accident and that Blosser’s speech was thick and mumbling, and that he made no effort to obtain a statement from Blosser at that time.

Blosser was somewhat injured and was taken to a hospital. At the hospital the police officer learned from a doctor that Blosser had Parkinson’s disease — a fact that the testimony showed was known to Keenan and to Taylor. As a result of learning that Blosser suffered from this disease, the officer did ³⁵⁵ not charge Blosser with driving while under the influence of intoxicating liquor, and no test of the alcoholic content of his blood was made. Soon after the accident, and because of it, Blosser was required to take a driver’s test and was permitted to retain his license, without any restriction being imposed upon his driving.

There is evidence that Parkinson’s disease causes a slurring of speech, and that it caused Blosser to have a tremor in his arm; but there is no evidence as to what effect, if any, this disease has upon one’s susceptibility to alcohol. The post mortem examination of Keenan was made by Dr. Petty, State Assistant Medical Examiner. His qualifications as an expert on pathology and toxicology, including matters pertaining to the alcoholic content of blood, were conceded. Pie was called by the plaintiffs to prove the cause of Keenan’s death, and his autopsy report showed that the decedent’s blood had an alcoholic content of 0.13%.

He was called by the appellants to testify as to how much beer the decedent would have had to drink during a period of two to two and a half hours before his death to produce this percentage of alcohol. His answer was a minimum of seven to eight twelve-ounce bottles of local beer. He testified that this determination could be made with reasonable medical certainty and scientific probability. He testified with regard to a well known formula used to make such determinations and placed it before the jury, and he made it clear that the weight of the drinker is a very important factor in the formula.

The greater the weight, the more alcohol would have to be ingested to produce a given percentage of alcohol in the blood, and conversely the less the weight, the greater would be the percentage of alcohol in the blood produced by drinking the same amount of alcohol. The testimony of Taylor was that all four of the group who had been drinking together at the inn just before the accident had drunk the same amount of beer — four bottles apiece — and Blosser’s testimony was not substantially different as to the amount of alcohol each had consumed and the number of rounds of drinks. 1 There was also testimony that neither ³⁵⁶ Keenan, Blosser nor Taylor had had anything to drink on the way from the steel plant to the inn. There was a suggestion in a colloquy between the court and counsel that Keenan might have had a drink, possibly from a bottle kept in his locker or a “miniature,” before leaving the plant, but there was no testimony to this effect. The evidence proffered by the appellants was intended to show that Blosser’s blood contained 0.18% of alcohol at the time of the accident.

This would place him somewhat above the level of “clinical intoxication”, of 0.15%. See address of Dr. Eewis P. Gundry in Chemical Tests for Alcoholism, 14 Md. E. Rev. 111, at 117. See also Code (1962 Cum. Supp.), Art. 35, § 100 (unchanged as to presumptions or inferences from percentages of alcohol in the blood from Ch. 769 of the Acts of 1959), which in terms applies to evidence in criminal cases, but has been considered as relevant in a civil case where it was claimed that an instruction should have been given on the question of whether the defendant was driving a car while under the influence of intoxicating liquor.

Alston v. Forsythe, 226 Md. 121, 131-34 , 172 A. 2d 474 . Such an instruction was there refused and the ruling of the trial court was affirmed because of the insufficiency of the evidence to warrant its being given. The ground upon which the trial court excluded the proffered testimony was that the evidence did not warrant a hypothetical question based upon the assumption that Blosser had consumed as much as seven or eight bottles of beer, since the strongest direct testimony (that of Taylor) showed that Blosser had had at the most four beers and an ounce of whiskey- — roughly the equivalent of five twelve-ounce bottles of beer — in the two hours preceding the accident. On the other hand, the trial court permitted testimony with regard to the 0.13% alcoholic content of Keenan’s blood to be used to refute the testimony of Taylor and Blosser with regard to the amount which the members of the party had drunk at the inn.

There have been many cases in this court involving the pro ³⁵⁷ priety of hypothetical questions. We shall not review them extensively here. Among recent cases concerned with such questions and the bases upon which they may be founded, see Twombley v. Fuller Brush Co., 221 Md. 476 , 158 A. 2d 110 ; Wolfinger v. Frey, 223 Md. 184 , 162 A. 2d 745 ; State, Use of Solomon v. Fishel, 228 Md. 189 , 179 A. 2d 349 . The Solomon case cited the statement in Gordon v. Opalecky, 152 Md. 536, 548-49 , 137 A. 299 , of two ways in which questions addressed to expert medical witnesses to elicit their opinions based upon facts not within their personal knowledge or observation “are usually and properly asked.” The second of these “is to state to the witness such facts as are essential to the formation of a fair and intelligent opinion, ask him to assume the truth of the facts so stated, and to express an opinion upon them.” Applying that test to the question here sought to be propounded, we think that the question was proper.

It was founded upon the medical, scientific fact that Keenan’s blood contained 0.13% alcohol, upon a reliable scientific formula, with which the expert witness was thoroughly familiar, by which the amount of alcohol, and hence the quantity of beer from which it had been derived, consumed by the decedent within a period of two to two and a half hours before the accident could be computed, and upon testimony that all members of the group (including Blosser) had consumed substantially the same amount of drinks in the same time. Each of these facts assumed to be true by the question proposed was supported by evidence in the case. That one fact assumed to be true was shown through a deduction made by the expert himself by applying an objective, scientific formula to other evidence, does not render it a fact unsupported by evidence. Cf.

Williams v. Dawidowicz, 209 Md. 77 , 120 A. 2d 399 . Nor does the fact that it rested upon one part of the testimony of a witness (Taylor), that all members of the group drank approximately the same amount, and that it rejected another part of his testimony, that they had only four beers apiece (plus an ounce of whiskey for Blosser) create any internal conflict in the facts assumed. The foundation was laid for the expression of an expert opinion which could be of assistance to the jury. That an expert opinion will be of such assistance is the basic test of its admissibility.

Wil ³⁵⁸ liams v. Dawidowicz, supra; Shivers v. Carnaggio, 223 Md. 585 , 165 A. 2d 898 ; Harper v. Higgs, 225 Md. 24, at 38 , 169 A. 2d 661 ; Marlow v. Davis, 227 Md. 204, 176 A. 2d 215 ; Farley v. Yerman, 231 Md. 444, 451 , 190 A. 2d 773 , and cases therein cited. In Farley , the experts inspected the premises and equipment after the accident, but there had been no intervening change in conditions. The exclusion of their proffered testimony was held erroneous. (See 231 Md. at 450-51 .) See also, Marder v. City of Baltimore, 232 Md. 299 , 192 A. 2d 512 .

We are accordingly of the opinion that the proffered evidence was admissible. Its weight was, of course, a matter for the determination of the jury. The other principal contention relates to the alleged assumption of risk or contributory negligence on the part of Keenan in riding as a passenger in a car driven by a driver under the influence of intoxicating liquor. Probably the leading case in this State dealing with this subject is Powers v. State, Use of Reynolds, 178 Md. 23 , 11 A. 2d 909 .

In that case, decided by a divided court (3-2, Judges Offutt and Bond dissenting), the majority opinion, written by Judge Delaplaine, states: “It was further contended that Miss Reynolds [the person for whose death the suit was brought] was guilty of contributory negligence because of a voluntary assumption of risk. The test in determining voluntary assumption of risk is whether there was an intentional and unreasonable exposure to danger, which the plaintiff either knew or had reason to know. A guest is not negligent in riding with an intoxicated driver, if he is unaware of the intoxication or does not notice any facts which would arouse the suspicions of a person of ordinary prudence. * * * It has been repeatedly held that a guest is not contributorily negligent as a matter of law in riding in an automobile, after he and the driver have been drinking together. So, on the issue of a guest’s contributory negligence in riding with an intoxicated driver, such questions as the amount of intoxicating liquor the driver had consumed, the extent of the driver’s intoxication, and how much the guest was aware of it, are usually questions for the jury in determining whether there was an assumption of risk. * * * In Maryland, even though it ³⁵⁹ is testified that a driver was intoxicated, and there is evidence to the contrary, the question of the contributory negligence of the plaintiff in entrusting her safety to the driver in a question which should be submitted to the jury.

Meese v. Goodman, 167 Md. 658 , 171 A. 621 .” ( 178 Md. 31 -33.) The majority opinion in Powers concluded its discussion of this phase of the case with the statement: “The jury had the right to take into consideration all of the testimony in the case in deciding whether Miss Reynolds was guilty of contributory negligence.” The dissenting opinion, written by Judge Offutt, viewed the evidence as showing that the driver of the car was asked to drive by other members of the group (including Miss Reynolds who could not drive) who had been drinking together, “not because they felt that he was sober, but because they thought that he was not as drunk as they were.” Their action in entrusting the driving of the car to a member of the party who had been drinking with them all evening, to drive it over a winding, dangerous, mountain road was a glaring act of negligence, which was the primary and proximate cause of the accident (running off the road and hitting a guard rail), and that such negligence should bar recovery. ( 178 Md. at 37 .) The close relationship and overlapping in some cases between assumption of risk and contributory negligence are strongly suggested in the Powers case. See also, Restatement, 2 Torts, § 466, especially Comments c, d and e; 2 Harper & James, The Law of Torts, § 21.1, p. 1162; Prosser, Torts (2d Ed.) § 55, pp. 303-305; and annotation, 82 A.L.R. 2d 1218 , on the Distinction between assumption of risk and contributory negligence. That there is a distinction between the two is recognized by the decisions of this Court.

It was thus stated by Chief Judge Bond in Warner v. Markoe, 171 Md. 351, at 359 , 189 A. 260 , at 264: “The distinction between contributory negligence and voluntary assumption of risk is often difficult to draw in concrete cases, and under the law of this state usually without importance, but it may be well to keep it in mind. Contributory negligence, of course, means negligence which contributes to cause a particular accident which occurs, while assumption of risk of accident means voluntary incurring that of an accident which may not occur, * * *. Contributory negligence defeats ³⁶⁰ recovery because it is a proximate cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.” See also, Gordon v. Maryland State Fair, 174 Md. 466, at 469 , 199 A. 519 ; People’s Drug Stores, Inc. v. Windham, 178 Md. 172, at 186 , 12 A. 2d 532 ; Evans v. Johns Hopkins Univ., 224 Md. 234 , 167 A. 2d 591 ; Jimmy’s Cab Co. v. Isennock, 225 Md. 1, at 7-8 , 169 A. 2d 425 . As presented in this Court, Warner v. Markoe, supra, was a suit by a guest passenger against a host automobile owner, since a third party motorist involved in the collision and originally joined as a defendant had been let out of the case on a directed verdict, and there was no appeal as to him.