Durling v. Kennedy

Delaplaine, J., delivered the opinion of the Court. This joint tortfeasor action was instituted in the Circuit Court for Anne Arundel County by Marjorie Durling against four automobile drivers, Edward Kennedy, C. G. Haughton, Hugh C. McClelland and Francis Bernard Salmon, to recover for personal injuries which she sustained in an accident on U. S. Route 1 near Berwyn in Prince George’s County on July 14, 1953. Plaintiff alleged in her declaration that immediately prior to the accident the four drivers were all traveling in the same direction. Plaintiff was a passenger in the third car, a Dodge sedan operated by McClelland.

Two cars were ahead of them. Kennedy was driving the first, and Haughton the second. Salmon was driving behind McClelland. In the first count, plaintiff alleged that Kennedy, the driver of the first car, stopped suddenly without giving Haughton a signal of his intention to stop; and that as a result of his negligence, Haughton’s car ran into the rear of his car.

Plaintiff further alleged in the first count that, after McClelland’s car had left the road, Kennedy committed a second act of negligence by failing to maintain proper control over his car and driving it into the side of McClelland’s car; and that as a result of his negligence she was seriously and permanently injured. In the second count, plaintiff alleged that Haughton, the driver of the second car, was driving so close to Kennedy’s car that his car ran into it; and McClelland’s car had to stop suddenly in a position of peril and was struck in the rear by Salmon’s car; that this second collision drove McClelland’s ⁵⁵² car into the rear of Haughton’s car; and that she was injured as a result of Haughton’s negligence. In the third count, plaintiff alleged that Salmon, the driver of the fourth car, was driving at an excessive rate of speed and was following McClelland’s car too closely, and he negligently caused his car to collide with McClelland’s car; and that as a result of his negligence she was injured. In the fourth count, plaintiff alleged that McClelland stopped his car without giving any warning or signal to Salmon; that McClelland failed to pay attention and thereby lost control of his car, and as a result of his negligence he caused his car to come into collision with the other three cars; and that as a result of his negligence she was injured.

The case against all four defendants was tried before a jury, with Judge Michaelson presiding, on September 19 and 20, 1955. At the close of plaintiff’s case, Kennedy and Haughton filed motions for directed verdicts. Judge Michaelson granted Kennedy’s motion as to the first accident on the highway, and denied it as to the roadside accident. The judge granted Haughton’s motion for a directed verdict.

Kennedy, McClelland and Salmon thereupon presented their evidence in the case, after which the judge delivered his charge and submitted the case to the jury. After the jurors had deliberated for several hours, the foreman informed the judge that they were “hopelessly divided as to a decision.” The judge accordingly discharged them. Kennedy, McClelland and Salmon thereafter filed motions for judgments n. o. v., but those motions were overruled. On November 12, 1955, plaintiff petitioned the Court for a hearing to clarify the issues in the case.

She gave the following reasons for her petition: (1) that, since the Court overruled the motions for judgments n. o. v., she is entitled to a new trial; (2) that she is unable to determine how far this action of the Court affects the issues in the case in view of the fact that the Court granted motions for directed verdicts in favor of two of the defendants; and (3) that she requests a hearing to enable her to present the rules of law which show that at the new trial she will be entitled to have all issues of the pleading submitted to the jury. ⁵⁵³ Kennedy and