Christ v. Wempe

⁶³¹ Digges, J., by special assignment, delivered the opinion of the Court. On May 18, 1957, shortly after 7:15 P. M. (D. S. T.) an automobile driven by the appellee, Raymond Wempe, skidded momentarily off the wet surface of U. S. Route 219 in Garrett County, traveled some distance sidewise down the highway and eventually crossed to the opposite side and collided with two trees, killing the appellant’s decedent and injuring the infant appellant, both of whom had been riding in the front seat of the car. Four suits in one declaration alleging negligent operation of the motor vehicle were instituted in the Circuit Court for Allegany County and were subsequently removed to the Superior Court for Baltimore City.

The trial resulted in a jury verdict exonerating Wempe. From the judgment on that verdict this appeal has been taken on several grounds. The appellants urge error in rulings by the trial court excluding certain testimony, in the court’s instructions to the jury, in certain rulings at the hearing on the motion for a new trial, and finally on the refusal of the trial court to grant either a directed verdict for the appellants or at least an instruction invoking the doctrine of res ipsa loquitur. In the vicinity in which the accident occurred the highway is of macadam construction, twenty feet wide, with a berme or shoulder on each side and double solid white lines marking its center.

For vehicles traveling in a southerly direction the road curves to the left (12 degrees), is banked on the west side and has a down grade of 8.4%. There is a marker a short distance north of the curve noting its existence. The speed limit is fifty miles per hour. The automobile involved in the accident was owned by appellant’s decedent, Mrs. Patricia Trenton, who was seated alongside the appellee, with her eleven year old daughter, Cynthia, (appellant) to her right.

This group had left Cumberland, Maryland, stopped for dinner and were traveling in a southerly direction on Highway 219 en route to Deep Creek Bake when the accident occurred. At the trial three witnesses testified to the facts surrounding the happening of the accident. Cynthia stated that prior ⁶³² thereto the occupants were singing and the automobile was being operated “fine”, but she recalled nothing more until she awakened in the hospital. Corporal Conrad, a member of the Maryland State Police, testified that he learned of the accident at 8:45 P. M.

(D. S. T.), when there was still daylight, and arrived at the scene about 9:15 P. M. By then the occupants of the car had been taken to the hospital and the automobile, though still in the vicinity, had been towed from the place at which it had come to rest. He stated that he examined the highway, noted that a right wheel had “slid” to the right off the paved road with a very slight drop onto the berme, traveled down the berme eight feet and then returned to the paved surface. He further testified that “brush marks” on the highway indicated that the vehicle had then proceeded sidewise a distance of 208 feet diagonally down the highway to the left side, over the berme and grass shoulder and stopped upon colliding with two trees, a distance of 225 feet from the point where the wheel first left the hard surface on the right side. Corporal Conrad said the road was wet from rain earlier that afternoon and evening.

The appellee testified that he had driven over the highway on several previous occasions; that the road was wet from earlier rainfall; that he had been traveling at about 38-40 miles per hour, but let up on the gas pedal as he entered the curve; and that having glanced at the speedometer he noted his speed to have been 35 miles per hour at the beginning of the curve. There was no other traffic in sight at the time. As he rounded the curve while traveling in the center of the right lane, his right rear wheel slid to the right, dropping off the edge of the macadam portion of the highway onto the berme, which he estimated to have been about five inches below the road surface. He further stated that when the rear of the automobile had begun to slide, he did not apply his brakes but turned his wheel to the right and applied pressure to the accelerator.

This alleged action on the part of the appellee was described by Officer Conrad as the proper procedure to follow when an automobile skids on a wet or slippery road. All occupants of the car were seriously injured, and Mrs. ⁶³³ Trenton’s death resulted a few days later. Additional facts will be supplied from the testimony as may be necessary in dealing with the various contentions of the parties. I Appellants object to several rulings of the trial court prohibiting Corporal Conrad, the police investigating officer, from expressing his opinion that the maximum speed at which the appellee should have rounded the curve under then existing conditions was 25 miles an hour and that in his opinion 35 miles per hour (speed Wempe says he was traveling) was neither a safe nor proper speed.

We will assume that because of Corporal Conrad’s experience and training as a member of the State Police, together with the social schooling he acquired at Northwestern University Traffic Institute, he qualifies as an expert and will further assume, without deciding, that he demonstrated sufficient knowledge of all the facts and circumstances surrounding the happening of the accident upon which to base an opinion. We, nevertheless, conclude the trial court did not abuse its discretion in refusing to admit this evidence. Opinions of expert witnesses will not ordinarily be received “if the jury is able to decide or determine the question before it without special expert testimony. The witness must not usurp the province of the jury.

(Citations omitted.) If a matter is within the knowledge and experience of persons of ordinary judgment and experience, opinion evidence, expert or otherwise, should not be admitted. If the facts can be intelligently understood by the jury and they can form a reasonable opinion from those facts for themselves, there is no reason to admit the opinion evidence of anyone. However, when the question involved is such that jurors of ordinary judgment and experience are incompetent to draw their own conclusion from the facts presented and intelligently decide the question before them without the aid of expert testimony, this opinion testimony is a notable exception to the well-known rules of evidence. This exception should be applied with the greatest caution and discrimination.” Empire State Insurance Company v. Guerriero, 193 Md. 506, 514 .

In this ⁶³⁴ mechanical and motorized age automobiles for most people have become a necessity rather than a luxury. Certainly the greater percentage, if not all, of the membership of the average jury panel are either licensed operators or have had extensive experience as passengers with the operation of automobiles over many different type roads under varying road and weather conditions that would dictate the proper speed and manner in which a reasonably prudent person should operate a motor vehicle. Appellants in their brief argue, however, that since this accident occurred in Garrett County, neither the existing road conditions nor what would be a proper speed under those conditions are matters within the normal experience or knowledge of a jury composed of citizens living in Baltimore City. They ask this Court to take judicial notice of the fact that there are no streets or roads within that city or a large radius thereof, with a comparable grade and with a banked curve of the same degree as on the road where this accident occurred.

We have no such knowledge, nor are we willing to assume that if this be true, the average juror of Baltimore City is so limited in his travel by automobile that he has not many times ventured beyond the city line either as a driver or passenger, over the hills of Western Maryland or over many other roads both within and without this State, where the terrain has caused highways to be constructed of like material with banked curves of a degree and with grades similar to Route 219. We conclude that, without the aid of expert opinion, jurors generally have knowledge or experience with the operation of automobiles sufficient to form a rational judgment, from all the evidence here presented, as to the speed at which a reasonably prudent person would have driven around the curve where this accident occurred under the conditions then existing. Hoover Motor Express Company v. Edwards, (Ky.) 277 S. W. 2d, 475 ; Kelly v. City of Waterbury, (Conn.) 114 A. 530 ; Underwood v. Goff, (W. Va.) 49 S. E. 2d 860 ; Kiessling v. Northwest Greyhound Lines, (Wash.) 229 P. 2d 335 ; Blashfield, Cyclopedia of Automobile Law and Practice (Perm. Ed.), Sec. 6312; Cf.

Wolfe v. State, 173 Md. 103, 110 . ⁶³⁵ II The appellants urge that the trial court erred in failing upon proper motion to instruct the jury that the appellee was negligent as a matter of law, or at least in its refusal to explain to them, as requested, the effect in this case of the doctrine of res ipsa loquitur. The majority of courts hold that the mere fact that a vehicle skids or slides on a slippery highway does not of itself constitute evidence of negligence and that in such cases the doctrine of res ipsa loquitur does not apply. 5 Am. Jur., Automobiles, Sec. 273 ; 93 A. L. R. 1101, 1117; 58 A. L. R. 264, 269 ; 5 A. L. R. 1240, 1246; Harper and James, The Law of Torts (1956), Vol. 2, page 1092; Blashfield, op. cit., Sec. 653. The decisions of this Court are fully in accord.

York Motor Express Co. v. State, 195 Md. 525 ; Billmeyer v. State, 192 Md. 419 ; Fillings v. Diehlman, 168 Md. 306 ; Wolfe v. State, supra. Given the elements of a wet road surface, a curve and a downhill grade, we cannot say that the sliding sidewise of the rear wheel of an automobile a few inches off of the hard surface of the road was such an occurrence that would not ordinarily have taken place in the absence of the driver’s negligence. Thus one of the essential prerequisites of the doctrine is missing. See Prosser, Law of Torts (1955), p. 199.

It is in this respect that the present case is distinguishable from a situation in which “a vehicle leaves a highway and crashes into a building, or a pedestrian on a sidewalk.” See Hickory Transfer Company v. Nesbed, 202 Md. 253, 262 . (On the other hand it is conceivable that a skid may be so extraordinary as to indicate negligence and call for the application of res ipsa loquitur. See Scott v. Checker Cab Company, (Ea.) 126 So. 241 , where cab skidded across street, onto sidewalk, hitting plaintiff, and then went through store windows; see also Prosser, Op. cit., p. 202-203; Harper and James, op. cit., Sec. 19.7; Shain, Res Ipsa Loquitur (1945), pp. 464-465.) Nor is there any doubt but that the initial sidewise slipping of the car presented a “skidding” situation within the mean ⁶³⁶ ing of the above-mentioned general rule. In Clodfelter v. Wells, (N. C.) 195 S. E. 11, 15 , the Court stated: “The contention that the facts here do not present a case of skidding is untenable.

There is no other reasonable conclusion to be reached but that the wheels of the automobile slipped sideways on the pavement, resulting in inability of the driver to control the movement of the car. This is the meaning of the word 'skidding’ as applied to the operation of automobiles.” Cf. Smith v. Baltimore Transit Co., 214 Md. 560 . The situation in Hammond v. Hammond, 236 N. Y. S. 100; aff’d 237 N. Y. S. 557, was similar to the case at bar.

The trial court, after a jury’s verdict for the plaintiff, granted the defendant driver a new trial on grounds which are not here pertinent. However, the Appellate Division, in affirming, thought it appropriate to state, in view of the possibility of a second trial, that the doctrine of res ipsa loquitur did not apply. It is noteworthy that the skidding there did not originate on a curve but developed for some unexplained reason while the defendant was proceeding down a slight grade on a wet highway. Furthermore, there was no mere sliding off of the surface of the highway in that case which might account for a subsequent loss of control on the part of the defendant; the car initially skidded and swerved to the driver’s left and thereupon collided with a guard rail on the left side of the road.

The reasoning in the Hammond case was later adopted by the New York Court of Appeals as the basis for the holding in Lahr v. Tirrill, (N.Y.) 8 N. E. 2d 298 . See also Clodfelter v. Wells, supra; Butner v. Whitlow, (N. C.) 161 S. E. 389 ; Hartpence v. Grouleff, (N. J.) 105 A. 2d 514 . The appellant relies heavily on Lachman v. Pennsylvania Greyhound Lines, 160 F. 2d 496 (4th Cir.). In that case the plaintiff passenger brought suit for personal injury sustained by her when the defendant’s bus, en route from New York to Norfolk, Virginia, skidded off the wet surface of the highway while rounding a slight curve near Salisbury, Maryland.

The Court held that the law of Maryland required submission of the case to the jury under the res ipsa loquitur doctrine. The decision may well have been reached because ⁶³⁷ the defendant was a common carrier. See Harper and James, op. cit., Vol. 2, p. 1084; Malone, Res Ipsa Loquitur and Proof by Inference, 4 Ea. L. Rev. 70, 78 (1941); cf. Sibley v. City Service