Blinder v. Monaghan

Offutt, J., delivered the opinion of the Court. Mrs. Florence K. Monaghan was injured as the result of a collision between a taxicab, in which she was a passenger, and a small truck, which occurred at the intersection of Charles and Thirty-Second Streets in the City of Baltimore at about noon on June 1st, 1935. The taxicab was owned by Ray Blinder, trading as the Diamond Cab Company, and operated by Frank C. Rose; the truck was owned and operated by Isidor Caplan. On August 28th, 1935, Mrs. Monaghan brought this action in the Superior Court of Baltimore City against Blinder, Rose and Caplan, on the theory that the collision and her injuries in consequence thereof were caused by the negligence of those defendants.

As a result of the pleadings, these issues of fact were ultimately tendered: (1) Was the collision caused by the negligence of the defendants or either of them? and (2) Did the plaintiff execute a valid release to Blinder exonerating and releasing all the defendants from any liability for the injuries which she suffered as a result of the collision? The case was tried on those issues before the court and a jury, and at the conclusion of the trial the jury returned a verdict in favor of the plaintiff against Blinder and Rose, and in favor of the defendant Caplan. ⁸⁰ This appeal was taken by Blinder and Rose from that judgment. At the close of the whole case Blinder and Rose submitted two prayers marked A and B, which were general demurrers to the evidence, one prayer, C. that there was no evidence in the case legally sufficient to show that the release had been obtained by fraud, one, D, that it had been obtained “by the mutual mistake of the parties,” one, E, that it had been obtained by duress, one, F, that it was obtained when the plaintiff was incapable on account of her mental condition of executing a valid deed or contract, one, G, that it was without consideration, and one, H, combining the propositions embodied in prayers C, D, E, F, G, and H. Of those prayers A, B, F, and H were refused and the others granted. By their “2 Prayer” the court was asked to instruct the jury that the burden was on the plaintiff to prove by “clear, precise and indubitable evidence” that the release was executed at a time when she was mentally incapable of executing a valid deed or contract; their “10 Prayer” involved the same proposition, while in their “12 Prayer” they asked the 'court to instruct the jury that to set aside the release they “must be convinced by clear, direct and satisfactory evidence” that the plaintiff at the time she executed the release “was incapable of executing a valid deed or contract.” These prayers were refused.

The rulings on the Caplan prayers were not argued by the appellants and need not therefore be considered here. Rule 89, sec. 4, Court of Appeals. In the course of the trial, the plaintiff’s family physician was permitted, over appellants’ objection, to express an opinion as to her mental capacity at the time she executed the release. Their contention is that in so ruling the court committed reversible error.

The appeal therefore presents three questions: (1) Was there in the case evidence legally sufficient to support the inference that the accident complained of was caused by the negligence of the appellants? (2) Did the trial court commit reversible error in permitting Dr. Cassidy ⁸¹ to express an opinion as to the mental capacity of the appellee at the time she executed the release to Blinder? and (3) was there in the case evidence legally sufficient to permit a rational inference that the release was invalid? The first question involves a review of the evidence relating to the circumstances attending the accident, which for convenience will be stated as a narrative. There was evidence tending to prove these facts: The appellee, accompanied by her brother-in-law Henry Patterson, entered Blinder’s taxicab, driven by his employee Frank C. Rose, on Thirty-Second Street, a half or three-quarters of a block east of Charles Street.

The cab then proceeded west on Thirty-Second Street to Charles Street, which at that point is a “stop” or “boulevard” street. As the cab came to Charles Street a “Blue Line” bus of the Baltimore Transit Company, going north, was coming to a stop on the east side of Charles Street at its intersection with Thirty-Second Street, to discharge passengers. At the same time a truck owned and driven by Caplan was also going north on Charles Street behind and to the left of the bus, and as the bus slowed down he continued on at the rate of about twenty miles an hour, intending to pass. In the meantime the cab, proceeding west on Thirty-Second Street, reached Charles Street.

The bus had then stopped. The taxicab driver either slowed up or stopped, and then proceeded in front of the standing bus into Charles Street. Before he entered Charles Street he had seen Caplan’s truck between Thirtieth and Thirty-First Streets, but lost sight of it when the bus intervened. The testimony as to the speed of the truck varies.

Caplan said he was driving at about twenty miles an hour, Rose, the cab driver, said he was going as fast as thirty-five miles an hour, other witnesses said that it was going at a “fair” rate of speed, and at an excessive rate of speed. When the bus stopped, Rose said: “Before I got there I noticed a machine—that is, truck, back about between Thirtieth and Thirty-First Streets. When the bus had ⁸² stopped, I figured I had time enough to get across, which I just nosed my front of the car out about two feet out on Charles Street, when this bus coming, I suppose about thirty or thirty-five miles an hour—” Question by the Court: “Q. You mean the truck or the bus? A. I mean the truck, rather, coming about thirty-five miles an hour, swerved around the bus and hit me on the right side— right front and he “drug” himself—that is when he swerved around the bus, he seen me and he threw on the brakes and he probably skidded about eleven or twelve feet, and his rear fender crashed into my right front side.” Later he said on cross-examination: “I was waiting for the truck to come by so I could shoot on by, but instead of him coming straight up he came around the bus and hit my right front with his right rear fender; I was standing still at the time; I had not moved; I had just pulled up and stopped waiting for him to ,go by about a second or two, and he came around the bus.” John M. Curry, the driver of a southbound bus, who saw the collision, said: “The truck came alongside the bus * * * It got past the front of the bus, and the taxicab had in the meantime—must have pulled out into the street and they collided.” He further said that the two vehicles stopped at the point of collision, that they were “locked together * * * the right front of one against the left front of the other.” Raymond Ossimus, driver of the northbound bus, said that the cab stopped at Charles Street, started again “west, turning south on Charles Street” and “then the truck came up and they both collided,” and when asked what part of the cars came together, answered: “The left front of the cab—probably both hit together like that, (indicating) at a point.” Warren L. Baker, another witness, also said that the truck hit the right front axle of the taxicab.

Caplan testified that he did not vary his course as he passed the bus, that he kept straight ahead, that the taxicab crashed into him, that its left front fender struck the right rear ⁸³ of his truck, that after the impact he skidded “two or three feet.” Those facts, which are conceded by the demurrer prayers, are sufficient to support the inference that Rose drove the taxicab in front of the bus, which obstructed his view of traffic approaching from the south, directly in the path of through northbound traffic on Charles Street, when he had actual knowledge that the truck was approaching the intersection, and that Charles Street was a “stop street,” on which all through traffic in either direction had the right of way. Code, art. 56, sec. 209, as amended by Acts 1929, ch. 224. Neither argument nor authority are needed to characterize such conduct as negligent. The appellant suggests that Caplan was proceeding at an unlawful rate of speed, but there are three answers to that, one that there is affirmative testimony that he was proceeding at a lawful speed, the other that, if he had been going more slowly, instead of striking the front of the taxicab he may have struck it in the center or rear, the third that Rose had no right to interfere with the traffic on that street, whether it was fast or slow.

In view of the statute, it was incumbent upon the taxicab driver, before he entered Charles Street, to make sure that he would not interfere with either north or south bound traffic thereon, and if for any reason his view of the thoroughfare was so obstructed that he could not observe the traffic on it, it was his duty to wait until the obstruction cleared, or to take adequate measures to discover whether the way was clear. The manifest purpose of the statute is to facilitate and expedite the movement of traffic within and between congested centers of population by setting aside selected highways as through roads, over which traffic may move without interruption or delay. To accomplish that, it dispenses with the right of way rules applicable to' highways generally, and gives the right of way to all traffic on such highways, and, as a necessary police measure for the protection of the traveling public, it provides that no one shall enter such a highway without first stopping, and ⁸⁴ that, having stopped, the operator of any vehicle approaching such a highway shall yield the right of way to “all vehicles approaching” thereon. Where, as in this case, the operator of a vehicle enters such a highway in disregard of these explicit and mandatory rules, and collides with another vehicle approaching thereon, the collision can only be attributed to his negligence, for in such a case the principle announced in Sun Cab Co. v. Faulkner, 168 Md. 477 , 163 A. 194 , applies with peculiar force.

There a taxicab, proceeding at an excessive speed, collided with a second taxicab which entered the intersection against a red or stop light, and it was held that the fact that the first cab was driven at an excessive speed did not render the owner liable, because.it appeared that the proximate cause of the accident was the act of the driver of the second taxicab in disregarding the stop signal. The appellants’ A and B prayers were therefore properly refused. The second question is whether there was reversible error in permitting Dr. Henry F. Cassidy to express an opinion as to the mental condition of Mrs. Monaghan at the time she signed the release. That ruling, which is the subject of the first exception, relates to this testimony: “Doctor, at the time you examined her, was she in your opinion capable of executing a valid deed or contract?

A. I should say no, on account of the amount of suffering.” Doctor Cassidy had been the family physician of the plaintiff for fifteen years. He examined her “towards dusk” on the day of the accident. He found her “shocked, rather dazed, suffering,” that she complained “bitterly of her face, neck and shoulder,” that she was bruised generally throughout the body, and that there was apparently a displacement of the fifth “cervicle vertebrae.” After he had given that testimony, he was asked and permitted to give this testimony: * * * “Q. Was she in any condition then to execute a valid deed or contract? A. I don’t think so.” There was an objection by counsel for Caplan, but no ruling on it nor any exception noted, nor did appellants’ counsel even object to it.

In view of that testi ⁸⁵ mony, which preceded that involved in the exception, it is not apparent how the appellants were injured by the ruling complained of in the first exception. It is a legal commonplace that if testimony, even though inadmissible, is offered without objection, the admission of the same or similar testimony later over objection will not constitute reversible error. Dennis v. Hearn, 148 Md. 391, 394 , 129 A. 354 ; Mercantile Savings Bank v. Appler, 151 Md. 571, 578 , 135 A. 373 ; Parks v. Griffith & Boyd Co., 123 Md. 233, 244 , 91 A. 581 ; Barnes v. United Rwys & Elec. Co., 140 Md. 14, 16 , 116 A. 855 .

In support of their contention the appellants also rely upon a motion to strike out the first answer of the witness. The court overruled that motion, which is the subject of the second exception. It appears, however, that that motion was not made by the appellants, but by Mr. Harrison, the attorney for Caplan. The interests of the appellants and Caplan were not the same, but hostile.

The appellants contend that the “proximate and sole” cause of the accident was Caplan’s negligence. Appellants’ brief, page 34. Caplan contended that it was caused by failure of the driver of the taxicab to yield the right of way. Caplan’s “1 Instruction.” Under such circumstances it is settled that the appellants cannot have the benefit of Caplan’s exception, Sline & Sons v. Hooper, 164 Md. 254 , 164 A. 548 .

Moreover, the motion was too late and also too general to present any question of law. It was in this form: “As to the Doctor’s testimony I want to make a motion to strike out the answers of opinion.” His statements that the appellee was shocked, dazed, in pain, that there was a dislocation of the cervicle vertebrae, that her responses to questions were rational, that she was suffering and in constant pain, all to some extent embodied opinions, but were not only unobjectionable, but no objection was made to them. Since the motion went to all the opinions, some of which were unobjectionable, without indicating the particular opinion or opinions at which it was aimed, it was for that reason, also, properly overruled. Jones on Evidence, sec. 895; Wilson, Close & Co. v. Pritchett, 99 ⁸⁶ Md. 583, 58 A. 360 ; United Rwys. & Elec.

Co. v. Wehr & Co., 103 Md. 323 , 63 A. 475 ; Balto. & O. R. v. Whitehill, 104 Md. 295 , 64 A. 1033 . The only difference between the answer given without objection and the answer allowed over objection is that in the former the witness said he did not “think” she was in “any condition” to execute a valid deed or contract, while in the latter he said “I should say no, on account of the suffering.” There is no essential difference between the two answers; they were alike expressions of opinion, and the same opinion. The inquiry implicit in both had nothing to do with mental disease, but they related solely to whether the physical injuries the appellee had sustained had so suspended or deranged her mental faculties as to render her incompetent to perform an ordinary business transaction. In such a case the opinion even of an expert is entitled to little weight, for, as stated by Judge Digges in Johnston v. Schmidt, 158 Md. 555, 568 , 149 A. 283 , 288: “On the other hand, when the question is not one of sanity or insanity, but is one of incapacity shown to be due to the temporary dethronement of the mental faculties by the administration of opiates, the obscuration resulting from the near approach of death, or the like, witnesses can, without difficulty and without consuming much time, state in detail the facts as they existed, which, when stated, place the jury in equally as advantageous position to determine the capacity of the testator as the witness could possibly be, and therefore the opinion of the witness amounts to no more than saying that if he were