Beckner v. Chalkley

Gilbert, J., delivered the opinion of the Court. In this case, a jury in the Superior Court of Baltimore City, presided over by Judge Basil A. Thomas, rendered a verdict in favor of appellee Blom, a passenger in the appellant Beckner’s motor vehicle, against both Beckner and the appellee Chalkley who, at the time of the automobile accident leading to this litigation, was a Baltimore City police officer operating an emergency vehicle. The same jury in Beckner’s and his wife’s suit against Chalkley found for Chalkley. The judgments on the two verdicts are challenged in this Court.

In Beckner’s view, the trial judge committed three errors, scilicet: I. Exclusion of testimony from an “expert engineer” employed by Beckner.

II

Failure to instruct the jury that in order for it to find Beckner contributorily negligent it must first determine that he had a reasonable opportunity to “respond or react to notice of the approach of the emergency vehicle.” III. Not granting Beckner’s motion for a directed verdict at the conclusion of the passenger’s suit against Beckner. The testimony discloses that at approximately 12:20 a.m. ²⁴¹ on August 9, 1970, Beckner was operating his vehicle north on Calvert Street, a one-way north bound street in Baltimore City, and at that time he was accompanied by Donald J. Blom, who was riding in the right front seat of Beckner’s automobile. As Beckner entered the intersection of Calvert Street and East 28th Street, a one-way east bound street, a Baltimore City police car, operated at a high rate of speed easterly on 28th Street, also entered the intersection and collided with the left front side of the Beckner vehicle.

Beckner’s car wras driven into a utility pole and was demolished. Both he and Blom sustained personal injuries. Beckner, Blom, and another witness called by Beckner, all testified that Beckner had entered the intersection on a green light, and that they did not hear a siren emanating from the police vehicle until a split second immediately prior to the impact. Beckner said that his automobile radio and air conditioner were turned off, and his car windows were lowered about “six inches all the wTay around.” Each witness for Beckner denied the presence of other moving vehicles on Calvert Street.

Beckner stated that his rate of speed on Calvert Street was 30 to 35 miles per hour. The speed limit on Calvert Street is, however, 25 miles per hour. Chalkley stated to the jury that he had activated the siren the moment that he had received a radio call to assist another police officer involved in a shooting. Chalkley, at that time, was in a gasoline service station located at 29th Street and Remington Avenue, which is several blocks from the situs of the accident.

It was undisputed that the flashing dome light on the police vehicle was in operation. Chalkley acknowledged that he entered the intersection with the red light against him, but he said that as he approached the intersection he slowed down, observed the signal for north bound traffic on Calvert Street change to amber, and simultaneously saw that a vehicle, north bound on Calvert Street, had come to a stop, apparently in response to the sound of the siren located on the police vehicle or because of the amber light. Chalkley told the jury that after he had observed a vehicle stop at the intersection, he then proceeded to enter the intersection, and Beckner’s car came into the ²⁴² intersection from Calvert Street on the east, or right hand side, of the stopped automobile. The identity of the operator of the halted vehicle was never ascertained.

A witness called on Chalkley’s behalf related to the jury that the police vehicle had passed him while he was east bound on 28th Street, and that the siren and flashing light were in operation. According to the witness, he followed the police vehicle because of his curiosity. He said that when Chalkley entered the intersection of Calvert and 28th Streets the police cruiser did so on a green light. Another witness called on behalf of Chalkley testified that although he heard a siren it was not very loud.

He further said that the accident occurred 10 to 20 seconds after he first heard the police siren. The jury’s verdict in favor of Blom against both Chalkley and Beckner is indicative of the jury’s findings, on the facts, that both Chalkley and Beckner were negligent. Their verdict in favor of Chalkley in Beckner’s suit against Chalkley is consistent therewith. I. During the course of the trial, Beckner called a mechanical engineer who, after stating his qualifications and bfeing subjected to cross-examination thereon, was allowed to testify as an expert.

The expert said that he had gone to the scene of the accident approximately nine months later, and he had determined the points where both Beckner and Chalkley could have first seen each other’s vehicle. The evidence sought from the expert was not intended to establish when Beckner and Chalkley actually did first see each other, but rather, when considering the obstruction to vision, they first had the ability to see each other. The expert further stated the distances that vehicles would travel at speeds ranging from 80 to 60 miles per hour in intervals of 10 miles per hour, as well as the time it would take from the moment the respective drivers could have first seen each other to the point of impact. The observation by the expert of the area where the accident occurred was conducted during the daytime.

No calculations were made by the ²⁴³ expert as to the distance one could see the reflection of light from the headlamps, or if one could see it at all. No testimony was offered concerning the degree of illumination present in the area as a result of street lighting, nor was there any evidence as to the projection in feet of light from the headlamps of the motor vehicles. On motion by Chalkley, Judge Thomas struck the testimony of the expert. He said: “. . .

There were calculations of time, distances and speeds, which were all based in this case on what would have been the situation if the accident occurred during the daylight hours. The accident occurred at night and the expert witness’ testimony failed to take into account the circumstances which existed during the hours of darkness. Specifically, his calculations of time, distances and speeds fail to consider the headlamps of each of the cars and the extent of which illumination of such headlamps at the time of the accident alerted the respective other party. . . . [T]he conclusions reached by the expert witness or the calculations based on daylight hours would not appear to be relevant under these circumstances. For this reason the motion is granted with the exception [of] the expert testimony as to the amount of feet traveled per second.. . .” An exhibit prepared by the expert and previously introduced was likewise stricken.

In support of his contention that Judge Thomas erred in striking the expert’s testimony, Beckner relies upon Nailor v. Bowie, 3 Md. 251 (1852); Love v. Love, 158 Md. 481 , 148 A. 814 (1930); and Haile v. Dennis, 184 Md. 144 , 40 A. 2d 363 (1944). Those cases are, however, inapposite and afford Beckner no assistance. In order to avoid the holding set forth in Smith v. State Roads Comm'n, 240 Md. 525, 537 , 214 A.2d 792, 798 (1965) that “evidence of experiments performed out of court to be admissible . . . must have been made under similar ²⁴⁴ conditions and like circumstances to those existing in the case at issue.” Beckner styles what the expert did as an “investigation,” and not an experiment. We shall not engage in such semantics.

By whatever name Beckner chooses to call the observations made by the expert, they are, in our view, an “experiment” and subject to the rule of Smith, supra. Judge McWilliams, in Smith, supra, thoroughly discussed Richardson v. State, 90 Md. 109 , 44 A. 999 (1899), and Keyser v. State, 95 Md. 96 , 51 A. 1057 (1902). The clear message of Smith, supra, Richardson, supra, and Keyser, supra, is that unless a witness has actually made the experiment “under . . . similar conditions and circumstances,” he is not competent to state his opinion. The test in the instant case was performed in daylight hours.

The accident occurred at 12:20 a.m. What a motorist may observe in the daylight has no relation to what he may see at the same location during night hours. No allowance was made by the expert as to the projection of the headlights of each vehicle. There is nothing in the record that informs us as to what, if any, dissipation of the intensity of the reflection of the headlights may'have occurred as a result of existing illumination of the intersection.

We are not advised as to what effect, if any, the flashing dome light on the police vehicle may have had on its visibility, nor are we informed of the length of the light beam projecting from the lamps of the respective vehicles. As was stated by this Court in Murphy v. Bd. of County Comm’rs, 13 Md. App. 497 , 284 A. 2d 261 (1971), quoting from Spence v. Wiles, 255 Md. 98, 102-03 , 257 A. 2d 164, 166-67 (1969), at 504-05: “The rule is that before a witness is permitted to offer an expert opinion, it must be shown that he possesses both the necessary qualifications and also the factual