Gresham v. Commissioner of Motor Vehicles

Finan, J., delivered the opinion of the Court. On December 19, 1967, Lester Gresham left his home on East Lanvale Street in Baltimore City at about 5:15 A.M. and began walking to his place of employment. He was proceeding south on Broadway. While crossing from the northeast corner of Broadway and Orleans to the southeast corner of Broadway and Orleans he was struck by a car traveling west on Orleans.

This impact flipped him into the air and he was immediately run over by a ⁵⁰² second car. Neither of the drivers of these vehicles stopped to render aid and neither was apprehended. The investigating police officer testified as to the absence of any physical marks other than a blood spot near or at the point of impact. Mr. Gresham was dead on arrival at the hospital.

The plaintiff-appellant, Mrs. Gresham, after giving notice to the Unsatisfied Claim and Judgment Fund Board, defendant-appellee, filed suit. At the trial the testimony showed the weather was wet and cloudy and the victim was somewhere in the area of the 16 foot wide crosswalk when hit, if not within the crosswalk, as his body and a patch of blood were found in the crosswalk. The spot where the blood was found was 66 feet into the intersection from the curb line from where Mr. Gresham would have started across the intersection proceeding toward his place of employment, Orleans Street being 88 feet in width. The intersection was controlled by a traffic signal which had a “walk” light but there was no evidence as to the color of the light at the time of impact or when Mr. Gresham started to cross the intersection.

Nor was there any evidence as to the synchronization of the lights at this intersection with those of other intersections on Orleans Street. The intersection was well illuminated, there being at each corner two mercury vapor lamps affixed to arms extending from high poles. The plaintiff’s chief witness, Sylvester Green, testified his car was in the curb lane while stopped at a red signal at Orleans and Wolfe, which is two blocks from Orleans and Broadway, the scene of the accident. While there he noticed the light at Orleans and Broadway was green for Orleans Street traffic.

He did not thereafter notice the light at Broadway and Orleans. However, while stopped for the red light at Orleans and Wolfe, a young man spoke to him from across another car and asked him the directions to Fort Meade, which Green gave to him. When the light turned green, the witness stated that: “Then, all three of us take off towards Broad ⁵⁰³ way. The two cars to my left speeded off in a hasty reaction.

So, they got approximately a half a block, maybe, ahead of me by the time we got to the intersection of Broadway. But, before I got there is when I saw the man get hit.” [Witness Green elsewhere in his testimony estimated he was about 150 feet away from the intersection when he saw the victim thrown into the air by the impact. The two cars which had been to the left of Green at the Orleans and Wolfe Street intersection were the cars that struck the decedent.] Q. Was he in the crosswalk or wasn’t he? A. Yes, he was.

Q. And which car hit him ? A. The car that was traveling, fast. I don’t know what make or what kind it was.” At the conclusion of the testimony, the defendant moved for a directed verdict contending that there was no evidence of primary negligence on the part of the two drivers. The trial judge granted the motion on the basis that there was no evidence from which the jury could, conclude what color the light was at the time of the accident.

He felt that without the plaintiff introducing evidence to show the light was favorable for the victim when he started to cross, then the plaintiff had not made out an essential element of her case. It is from the directed verdict that the plaintiff appeals. The lower court in its setting forth of the reasons why it granted the defendant’s motion for a directed verdict at the conclusion of the plaintiff’s case, recognized the presumption that exists in favor of a plaintiff that at the time of an accident he is deemed to have been exercising ordinary care for his own safety, in accordance with the natural instinct of human beings to guard against danger. However, in synthesizing the plaintiff’s case the court failed to properly apply the presumption in favor of the deceased.

The court stated: “The inference ⁵⁰⁴ is that he exercised ordinary care for his own safety but does that inference go so far as to say that it must be inferred that every pedestrian who starts to cross does so on a green light?” The court then answered its own query adding: “If it does not go that far, how can I submit the case to the jury unless they are going to speculate on that crucial issue?” We are of the opinion that this is where the lower court erred. In the instant case there being no countervailing evidence to undermine the presumption, the presumption that the deceased started to cross the street with a favorable light and was in the crosswalk when struck should have prevailed. 1 We will discuss our reasons in support of this premise very shortly; however, we think it important first to distinguish the case at bar from the cases relied upon by the lower court, namely, Hickory Transfer Company v. Nezbed, 202 Md. 253 , 96 A. 2d 241 (1953); Love v. State, Use of Nelson, 217 Md. 290 , 142 A. 2d 590 (1958); and Thompson v. Sun Cab Company, 170 Md. 299 , 184 A. 576 (1936). In Nezbed the plaintiff through his own witnesses, although relying on the doctrine res ipsa loquitur, proceeded to explain away the inference of negligence on the part of the defendants, showing that there was a malfunctioning traffic light and that one of the defendant’s brakes failed. Chief Judge Sobeloff, writing for the Court, tersely summed it up: “In this case the plaintiffs themselves proved the details of the happening, foregoing reliance on res ipsa loquitur; and, having undertaken to prove the details, they failed to show negligence on the part of the defendant.

Indeed, they explained away the possible inference of negligence. Paradoxically, the plaintiffs proved too much and too little.” Id. at 263 . ⁵⁰⁵ Certainly, in the case at bar, the showing by the plaintiff of the presence of a traffic light and crosswalk at the intersection where the accident occurred cannot be equated with Nezbed where the plaintiff showed the traffic light to be faulty and further failed to prove any negligence on the part of the defendant. In fact, in Nezbed the plaintiffs were in their home and were injured when the truck, after its original collision with another vehicle, struck their house. There was no question concerning the extent, if any, to which they might benefit from evidentiary presumptions.

Furthermore, in the case at bar the plaintiff, rather than explaining away the defendant’s negligence, as in Nezbed , affirmatively presented facts from which the jury could have found negligence on the part of the defendant. In Love v. State, supra, there was affirmative testimony from the operator of the vehicle that struck the decedent that the victim was outside of the crosswalk at the intersection at the time of impact. Again, in the case at bar there is a total absence of any evidence in the record showing the decedent guilty of contributory negligence. In Thompson, supra, wherein at the conclusion of the plaintiff’s case, the court gave a directed verdict for the defendant, the plaintiff was not only alive to testify but was vague and uncertain in his testimony concerning vital elements of the case, which prompted this Court to state: “* * * It has so happened in the appeal at bar that, in his attempt to prove negligence, the plaintiff has proved the facts which would establish contributory negligence.

In such a state of the plaintiff’s testimony, he must not only show affirmatively the negligence of the defendant, but some facts to answer implications of negligence on his own part that have also arisen from his evidence.” Id. at 308 . Again, in the instant case there was no evidence of con ⁵⁰⁶ tributory negligence on the part of the plaintiff and in the absence of any evidence to the contrary, the plaintiff, in our opinion, was entitled to the presumption that he was exercising due care. Actually, in the case at bar there was sufficient evidence introduced to pose a question for the jury concerning whether the decedent was struck within the crosswalk, so that the only element, although a vital one, of the plaintiff’s case which is aided by the presumption is the question of the color phase of the traffic light. The lower court’s reluctance to carry the presumption that far was grounded primarily on its reliance upon the rationale of the dissenting opinion by Judge Haynsworth in State, Use of Geils v. Baltimore Transit Company, 329 F. 2d 738 (4th Cir. 1964), wherein the learned judge took issue with the opinion of the Court which held that the presumption that a deceased plaintiff exercised due care for his own safety prevailed in Maryland.

We think State, Úse of Geils, to be of sufficient importance, in relation to the instant case, to warrant further attention. In discussing the case we wish to make it clear that we think the position we take, regarding the application of the presumption of due care in the instant case, is reconcilable with both the majority, as well as the dissenting opinion. We say this because in State, Use of Geils there was some countervailing evidence which eroded the validity of the presumption, whereas in the instant case there is an absence of countervailing evidence. In State, Use of Geils , the plaintiff requested the Court to instruct the jury that they might consider, in connection with other evidence, the presumption of due care on the part of the decedent who had been struck by a bus at a street corner.

However, the court instead instructed the jury that although ordinarily such a presumption existed in favor of the plaintiff that in the case then before the court, the decedent having failed to exercise ordinary care in a number of respects, the jury should, “consider the proof which has been offered and determine whether ⁵⁰⁷ you are persuaded by a preponderance of the evidence that he failed to exercise ordinary care, and you are not to rely upon the presumption.” Upon appeal Judge Bell, writing for the Court, held that the presumption of due care on the part of the deceased plaintiff prevailed in Maryland, relying on this Court’s opinion in Grier v. Rosenberg, 213 Md. 248 , 131 A. 2d 737 (1957). Although the presumption involved in Grier was one concerning agency arising from the ownership of a motor vehicle, Judge Bell thought it apposite to the principle underpinning the use of presumptions, stating: “* * * Judge Prescott, speaking for the Maryland Court, explicitly pointed out that the precedents in that State recognized no basis for any distinction between the presumption that the decedent exercised due care for his self-preservation and the presumption of agency arising from the fact of ownership. And this observation of Judge Prescott is immediately followed by the very sensible question, ‘[I]ndeed, if the instruction be not granted, how is the jury to know of this presumption?’ ” Elsewhere, the opinion in State, Use of Geils , reads: “* * * The presumption with which we are concerned in this case may be invoked only where the injured person is unavailable because of injury suffered or because of death. Such incapacity is the just reason for the presumption; Indeed, in reversing the lower court, the Court in State, Use of Geils pointed out that, “In a careful review of the Maryland decisions and authorities in, the held of Evidence, Judge Prescott said that the presumption prevails and the jury should have been so instructed despite the fact that countervailing