Coastal Tank Lines, Inc. v. Canoles

Henderson, J., delivered the opinion of the Court. These appeals are from a judgment in favor of George D. Cañóles upon a jury’s verdict of $19,500 in an action for personal injuries and property damages sustained by him in an automobile accident, and a judgment upon demurrer to a declaration filed by Mrs. Cañóles for loss of consortium and special damages to her by reason of her husband’s disabilities resulting from the accident. A motion to dismiss the first appeal was filed on the ground that the appellant failed to print all of the material testimony. We overruled that motion in a per curiam opinion.

We deem it sufficient at this time to state that we thought there was room for a difference of opinion as to the necessity of printing the testimony which the appellee, Cañóles, contended was improperly omitted, and that the omissions were not so patently indefensible as to require the drastic measure of dismissing the appeal. Cf. Sawyer v. Novak, 206 Md. 80, 83-84 . In view of our conclusion on the merits it is unnecessary to consider separately the award of costs for printing the omitted material. ⁴¹ The accident occurred on the York Road in Baltimore County on October 9, 1952, when the Ford sedan owned and operated by George D. Cañóles was struck in the rear by the right front of appellant’s tractor, pulling an empty trailer.

The only eyewitnesses were the drivers of the respective vehicles. The appellant, Coastal, contends that there was no legally sufficient evidence of primary negligence, and that the appellee, Cañóles, was guilty of contributory negligence as a matter of law. In the alternative, it is contended that there was error in the court’s instructions as to contributory negligence and in connection with the claim of permanent injuries. The physical evidence in the case, based on an investigation by a county police officer, is undisputed.

Both vehicles were south-bound in a 50-mile speed zone on a straight, dry road with good visibility over a considerable distance. The accident occurred about three hundred feet south of the intersection of York Road and Belfast Road. The paved portion of York Road at that point is twenty-one feet in width, with a painted center line. Skid marks ninety-four feet in length indicated that the tractor-trailer was in the center of the south-bound lane when its brakes were applied, with its left wheels two feet to the right of the center line.

As the tractor was six and one-half feet in width, its right wheels were presumably about two feet from the shoulder at the point of impact, which was marked by broken glass from the automobile taillight. This point was about four feet south from the beginning of the skid marks. A photograph showed the imprint of the spare tire, attached to the rear and in the center of the overtaken vehicle, upon the right half of the tractor’s front fender. This indicated that the automobile must have been somewhat further to the right at the moment of impact.

The automobile was thrown off the road diagonally to the right, and came to rest on its side about one hundred and twenty-two feet from the point of impact. Mr. Cañóles testified that he was driving at about 25 miles per hour when he saw in his rear view mirror a ⁴² tractor-trailer coming up behind and another truck coming fast from the opposite direction. When the tractor was twenty-five or thirty feet behind, he pulled off the road to allow it to go through, for it was coming up fast and “it looked like he was going to hit me.” He was somewhere around two feet off of the hard surface when the crash occurred. “* * * both of my right wheels was around about two feet over on the shoulder, off the hard surface. * * * My car was going further off the road all the time. If I had a couple of split seconds more I would have it all off the road but I didn’t have that much time.” He also testified that there was “plenty of room” for the tractor to pass; “the whole center of the road was there”.

Mr. Smith, the driver of the tractor-trailer, testified that the automobile pulled entirely off the road ahead of him, all four wheels on the gravel. He accelerated his vehicle and “gave it the gas”, when the automobile suddenly pulled back on the road, blocking the lane. He could not pull to the left, because of the truck coming in the opposite direction, which was about one hundred feet away and “really riding”. He hit the automobile on its left rear corner.

The appellant, Coastal, contends that the testimony of of the plaintiff is so inconsistent with the physical facts as to be incredible, and hence it should be rejected altogether. We think, however, that in important particulars it is consistent with the physical evidence. The fact that the brakes of the tractor-trailer were not applied, with sufficient force to leave skid marks, until it was four feet from the point of impact, indicates beyond question that the driver was unwilling to accommodate his speed to that of the overtaken vehicle, and put himself in the position where passing was the only alternative. Perhaps he underestimated the speed of the approaching truck.

The duty to slow down and not to attempt to pass, until the road is clear and it is safe to do so, rests upon the overtaking vehicle. Code (1951), Art. 66%, secs. 184, 186. There was no evidence that ⁴³ Smith blew his horn or gave a passing signal. Again, the fact that the automobile was impelled diagonally to the right, would seem more consistent with the plaintiff’s testimony that he was trying to pull off the road, at a slight angle to the right, than the testimony of Smith that the automobile was pulling back onto the road, in which case the angle would probably have been to the left.

It is true that the physical facts are not wholly consistent with the plaintiff’s testimony that he pulled off the road and that there was room for the tractor to pass. This was later qualified by his statement that only his right wheels were off the road. The imprint of the spare tire of the automobile upon the right half of the tractor’s front bumper, and the skid marks of the tractor-trailer in the center of the south-bound lane, demonstrate that the automobile, while somewhat to the right, was not entirely off the road. The blow was on the center of the rear of the automobile and not on its left corner, as Mr. Smith testified.

Mr. Cañóles may have been mistaken in saying that his right wheels were off the hard surface, but this error of detail would not discredit his explanation of what happened. Cf. York Motor Express Co. v. State, 195 Md. 525, 534 . Whether there was room for the tractor to pass in the center would largely depend upon the position of the approaching truck with reference to the center line.

The case turns, in its factual aspects, upon whether the jury chose to believe the plaintiff’s theory that he was trying to pull off the road in the emergency created by the tractor’s failure to slow down, or the defendant’s theory that the plaintiff had pulled entirely off the road, inviting him to pass, and then, at the last moment, pulled back and blocked the lane when it was too late for the driver to stop. The determination of liability under such circumstances is peculiarly one for the jury, both on the issue of primary negligence and contributory negligence. The appellant, Coastal, also complains of the failure of the trial court to charge the jury, in addition to the ⁴⁴ usual charge as to contributory negligence, that it the jury should find that the plaintiff was aware of the risk of collision and failed to use reasonable care to avoid it by pulling entirely off the road, the verdict should be for the defendant. The short answer to this contention is that there was no evidence to support such an instruction.

It is, of course, inconsistent with the defendant’s theory of the case, and on the plaintiff’s theory, the testimony was that the plaintiff did not have time to pull off after he realized the danger. Time and a reasonable opportunity to avoid an imminent danger is an essential element here, as it is under the doctrine of last clear chance. Cf. State v. B. & O. Railroad Company, 196 Md. 459, 464 , and Shedlock v. Marshall, 186 Md. 218, 236 .

We do not suggest that that doctrine has any application in the instant case, where the actions of both drivers were concurrent. The cases of Oberfeld v. Eilers, 171 Md. 332 , and Lange v. Affleck, 160 Md. 695 , are distinguishable on the ground that in each case it was admitted that the plaintiff might readily have avoided collision with a vehicle coming from the opposite direction by a slight change of course, after the danger was apparent to him. We are aware of no rule that an overtaken vehicle must give way to an overtaking one and clear the track beyond the usual duty to avoid collision when there is time and opportunity to do so. The final contention on the first appeal is that the trial court erred in charging the jury as to permanent injuries, because the testimony of the attending physician, Dr. Saffell, was not properly admitted, and without his testimony there was no evidence of permanent injury.

Dr. Saffell made, in all, eighty-eight professional calls on Mr. Cañóles, and was qualified to express an opinion without any hypothetical question whatever. Langenfelder v. Thompson, 179 Md. 502, 507 . The appellant, Coastal, contends that Dr. Saffell should not have been permitted to answer a hypothetical question put to him, because he did not hear all the testimony in the case, and especially testimony by the plaintiff, given in redi ⁴⁵ rect examination, as to an injury to his hip sustained in a previous accident in 1947, five years before the accident in the instant case. We find no merit in the contention.

It is perfectly clear from the record that Dr. Saffell knew all about the hip injury and the previous accident, and took these matters into account. There was abundant testimony that the plaintiff had completely recovered from his previous injuries, so far as ability to perform manual labor was concerned. The fact that the question was based in part on personal knowledge of the patient and in part on a hypothesis, would not be fatal. Cf.

Mullan v. Hacker, 187 Md. 261, 271 , and Marshall v. Sellers, 188 Md. 508, 518 . In any event, we cannot find that there was any prejudical error. The witness had heard the plaintiff describe his hip injury, and his testimony on redirect examination was simply cumulative. The case of Penna.

R. Co. v. Lord, 159 Md. 518, 523 , is distinguishable, because there the omitted testimony was not shown by the record. The fact that Dr. Saffell was not willing to “say for certain how long anything like that will last”, did not disqualify him, especially since he followed this by declaring that he was able to express an opinion as to the duration of disability. It is not certainty, but reasonable probability that is the test. See Beth.-Spar.

Pt. Shipyard v. Bishop, 189 Md. 147, 156 , and cases cited. Dr. Saffell testified in cross-examination that the arthritic condition, latent before the accident, might improve in its acute phase, “but, of course, Mr. Cañóles is in his sixties; he has less likelihood to recover to a point he can do any gainful work”, than after the first accident. Moreover, the condition of the plaintiff twenty months after the accident, as compared with his condition before, would support an inference that improvement would be slow and, considering his age, very unlikely.

Cf. Charlton Bros. Co. v. Garrettson, 188 Md.