Gwynn Oak Park, Inc. v. Becker

Johnson, J., delivered the opinion of the Court. Two appeals appear in this record by Gwynn Oak Park, Inc., one from a judgment entered by the Superior Court of Baltimore City in favor of James L. Becker, infant, by Helen E. Becker, his mother and next friend; the other from a judgment entered by the same court in favor of Helen E. Becker, whose suit was to recover for loss of her son’s services. Both cases depend upon the same facts and were heard together in the lower court. Appellees have filed a motion to dismiss the appeals upon the principal ground that appellant’s bills of exception were not submitted to their counsel within not less than thirty-five days before the record was required to be filed in this court.

Code Pub. Loc. Laws, art. 4, sec. 316; Baltimore City Charter, sec. 411. Orders for the appeals were filed on August 2nd, 1939.

The time, therefore, for the transcript of the record to reach this Court was November 2nd, 1939. If the statute is to be literally followed, it was incumbent upon appellant to submit its bills of exception to opposing counsel thirty-five days prior to November 2nd, to wit, not later than September 28th, 1939. Appellant admits that its bills of exception were not submited within said period, and avers that, prior to the thirty-five day period, it had discussed the matter with one of counsel for appellees, and was then “advised and understood,” as was the customary practice between counsel, that a literal compliance with the aforementioned statute would not be required. The record further shows that on October 11th, 1939, upon petition of appellant, the time for signing the bills of exception was extended until October 23rd, and the time for submitting them to opposing counsel was extended to October 8th.

Bills of exception were received by opposing counsel on October 7th. ⁵³² In State, use of Thompson v. Coal Co., 150 Md. 429 , 133 A. 601 , it was held that the failure to submit bills of exception to opposing counsel within the time named in the local statute was not ground for dismissing an appeal, if such bills of exception were submitted within an extension of the time granted by the court, and the opposing party was not prejudiced by the delay. In the present case they were actually signed by the trial court on October 17th, 1939, within the extended time. Moreover, since the transcript of the record was filed in this court on October 18th, it would seem clear that appellees have in no way been injured by any delay in receiving the bills of exception. Compare that decision with Balto.

Paint & Color Works v. Parts Co., 173 Md. 210 , 195 A. 558 , where there was no extension for submitting and signing the bills of exception. Apart from these considerations, Rule 47 of this court provides that “all motions to dismiss appeals shall be filed at least five days before the cases are called for argument, unless the motion be based on some cause arising after that time * * *” etc. Under that rule the motion, to dismiss should have been filed not later than January 4th, but two days later no such motion appeared upon the clerk’s docket. In view of these considerations, the motions to dismiss the appeals are overruled. Four exceptions were reserved by appellant to the rulings of the trial court, the first three upon evidence and the last upon the prayers.

Before considering these, we will make some reference to the nature of the injuries sustained by the infant plaintiff, James L. Becker, which occasioned the suits. At the time of the trial, on June 16th, 1939, Becker was thirteen years old. His immediate relatives consisted of his mother and a twin brother, his father, a Lieutenant Commander in the United States Navy, having died in 1934. After her husband’s death, Mrs. Becker secured employment in Washington, D. C., leaving her two boys in the home of her aged mother on the Old York Road, and from her earnings she supported the mother and ⁵³³ boys.

From some undertermined cause, James, at five years of age, began having epileptic seizures. According to his testimony, and that of several persons who testified for him, he always had a very definite warning of such attacks and realized they were coming on; dark spots would appear before his eyes and shortly thereafter he would loose consciousness, froth at the mouth and twist his body into various shapes, and when the attacks subsided his conversation would be unintelligible and he would remain in a state of stupidity from half an hour to two hours. At times on those occasions he would seem to be asleep, but at no time could he converse intelligently, for he only mumbled and one could make nothing out of what he said. There was also testimony that he had such attacks about twice a month.

Because of the infirmity of his grandmother and her inability to take care of both boys, his mother sought a place for them to stay and was referred to the home of Rev. and Mrs. Current, of Dundalk. She felt that, because the home was in the country and James liked it, it would be a fine place for him. He went there to live in May, 1938, and seemed to adjust very well in his new surroundings. On the morning of July 20th, 1938, Mrs. Current took him to Gwynn Oak Park, the occasion of her visit being to attend a picnic of the bible class of the church where her husband was the minister.

No admission was charged to enter the park, but it was open to the public as a place for picnics and innocent amusements, and refreshments were on. sale. Mrs. Current had taken lunch for the visit and, when this was spread upon the ground, she went to one of the park concessions for coffee. When she returned from purchasing the coffee, those present informed her that Becker had stated he was going to the playground. Lunch was then about ready and she began to inquire for the boy, and while searching for him learned from some children that he had been hurt.

He had been absent from her just long enough for her to get the cup of coffee. Becker testified that upon reach ⁵³⁴ ing the playground he rode the nickel automobiles twice, and then went over to the “sliding board” nearest the water; that he climbed up to its top without any difficulty, but when he put his leg down the “piece you go down on the sliding board straight down,” it began to shake back and forth with him; that he recalled falling. He went “through the air twice,” spun like a top and knew he hit the ground and then became unconscious. He was then asked to detail something about that “shaking” and answered, it shook from side to side about a foot each way. “About a foot each way?

A. Yes. Q. And how did you fall, straight down or over the side? A. Over the side. Q. You don’t remember which side it was do you?

A. No. Q. What is the next thing after that that you remember? A. When I woke up I yelled for Mrs. Jump to help me a couple times. Q. Did she help you? A. She we!nt over and got Mrs. Current.

Q. Then what happened after that? A. She would not let anybody pick me up. She went to call the ambulance. Q. How long was it before the ambulance got there?

A. About an hour. Q. Then' the ambulance took you to the hospital? A. Yes. The court: What hospital was it?

The Witness: The University of Maryland.” Becker positively denied that he felt the slightest discomfort when he reached the top of the sliding board or that he felt dizzy,, or had any black spots before his eyes, but stated he was quite well and felt as he always did when he did not have those fits. Mrs. Eva May Jump, who also attended the picnic, testified that when she arrived at the Park, it was before noon, because one of the events of the day in taking her little boy there was a box luncheon, and she recalled that it was not time to have lunch upon arrival; that she sent the little boy off with his nurse to play for a while, and they went over to one side of the playground while she walked to the far end where the sliding board was and she saw James Becker lying on the ground near the sliding board. At first she did not know whether he was asleep or awake, but about that time he saw her and ⁵³⁵ called for help, stating that he had fallen from the top of the sliding board and thought he was paralyzed, because he could not move his legs. Mrs. Jump went to the boathouse for help and an attempt was made to lift Becker, but he screamed so and had so much pain they had decided to wait until a doctor arrived.

She stated further that he told her he was with the minister’s wife, whose name she knew, and in a short while they found Mrs. Current and she, the witness, stayed with him while efforts were made, as she thought, by the authorities to get a doctor; that it had rained in the morning and the ground was wet and muddy, because she sat beside Becker until help came and was herself quite muddy; that the child complained so, and was in such pain, she thought there should certainly be a way to secure a physician and told them that she knew there were seven doctors at Gwynn Oak Junction and one would come out, but they said that they had tried all and none would come; that finally she suggested they call Doctor Smink and told them to mention her name and he would come, and at their invitation she herself called him and he arrived promptly. Mrs. Current also testified that when she saw “Jimmy” just after he had fallen he was absolutely conscious and recognized her before she got to him, and that when she got up to him she knew that he had not had an epileptic attack; that he told her he had fallen off the sliding board and broken his back, and although the injured boy was compelled to wait two hours before a doctor or an ambulance arrived, he was conscious throughout that period and insisted that his back was broken. During the course of her direct examination, she was asked: “Did some one come from the office and take a statement from Jimmy, somebody from the park?” Her answer was: “I don’t remember, because I was going back and forth. They may have and may not have, but they were trying to get some private doctor and they had wasted at least ten or fifteen minutes trying to get in touch with a doctor because they said it would make a difference in the insurance.

That is what they told us right there.” ⁵³⁶ Thereupon, counsel for appellant moved to have a juror withdrawn- and the cases continued. That motion was overruled, and this action raises the first exception. Appellant earnestly insists the ruling was erroneous, and cites as authority for his contention the cases of York Ice Machinery Corp. v. Sachs, 167 Md. 113 at page 127, 173 A. 240 , and International Co. v. Clark, 147 Md. 34 , 127 A. 647 . In the latter , of these cases, the suggestion of insurance came from a witness offered by the defendant, and this court held that, in view of that circumstance, and the fact that counsel for defendant had not made the motion to withdraw a juror and continue the case until the matter of insurance was referred to during argument of opposing counsel, there was no error on the part of the trial court in refusing the motion then made for a judgment of non pros; while in the former case, the suggestion of insurance came from a defense witness, and for that reason the ruling of the trial court in refusing a motion to declare a mistrial was affirmed by this court.

A consideration of the supposed harmful statement made by Mrs. Current in her testimony will disclose that her answer making references to insurance was not responsive to the question propounded by counsel. The witness was simply giving herself much latitude in trying to detail what she understood was the reason that no physician arrived to treat Becker earlier; moreover, the reference to insurance was entirely general, especially in that it did not indicate for whose benefit the insurance existed, nor did it indicate with certainty that the statement concerning insurance was made by any one officially connected with appellant. In such a situation, since the question was entirely proper and made without any thought that the answer contained in the record would be given thereto, and the answer itself being so very general and largely meaningless, must it be held that the court’s refusal to grant the motion and declare a mistrial was erroneous? We think not, in.view of the additional fact that, at the conclusion of -the plaintiff’s evidence, the trial judge in a most careful and pains ⁵³⁷ taking manner charged the jurors, at the request and suggestion of counsel for both parties, that the matter of insurance interested neither the jurors nor the trial court; that the case was to be decided as if there was no insurance; moreover, that it was not known as to what the insurance was and whether it was large or small, and with that question the court and jury was not concerned; that the jurors in considering the case should eliminate entirely the element of insurance and there was no competent proof there was any insurance, nor had they a right so to assume.

If it be assumed that the matter of insurance to the extent brought out by Mrs. Current in her testimony was injurious to appellant, we feel that the remarks of the trial court must have removed and erased any injurious effects which attached because of the utterance, and inasmuch as appellant’s counsel joined opposing counsel in requesting it, and were at the time apparently satisfied with what the trial court said, it would seem quite unfair at this time to uphold them in what, should the motions prevail, must be an entirely inconsistent position. See United Rys. & Elec. Co. v. Corneal, 110 Md. 211 , at page 233, 72 A. 771 , for an illustration of this principle. In our judgment, therefore, the trial court, under the exceptional circumstances shown, acted correctly in overruling the motion for a judgment of non pros.

Shortly after the arrival of Doctor Smink an ambulance also arrived, and in this young Becker was taken to the University Hospital. Soon after being admitted he was seen by Dr. Irving J. Spear, a specialist in nervous diseases, who a few months previously had observed him in the same hospital, and made certain tests in an attempt to relieve him of his epileptic attacks. Dr. Spear was well acquainted with him and with his history, and gave his opinion that had Becker, at the time of his fall from the sliding board, suffered a convulsion, he would have been more or less stupid for a half an hour to an hour. Upon examining Becker on this occasion, he found he was totally paralyzed from the waist down, that ⁵³⁸ he had lost all sensation, and had lost control of his bowels and bladder.

He had no feeling in the lower extremities and all his reflexes were gone. Dr. Spear advised an immediate operation in the hope of relieving the pressure upon the spinal cord, and accordingly Dr. Charles Bagley, Jr., was called. An X-ray photograph showed Becker had a fractured spine with dislocation of two lumbar vertebrae compressing the spinal cord. However, it was Dr. Spear’s opinion, after seeing him and talking with him on that occasion, that Becker gave no evidence of having had an epileptic attack at the time of his injury.

Dr. Bagley, a specialist in brain surgery, examined Becker in the hospital on the afternoon of the day he was injured, and advised an immediate operation upon the spine to relieve the pressure on the spinal cord, because of paralysis and loss of sensation in the lower extermities. The operation was completed around 7:00 P. M. on the same day, and exposed the cord at the point of the spine which, according to the X-ray, was the seat of dislocation of the tenth over the eleventh thoracic vertebra. Portions of the bone above and below the dislocation were removed so that the cord could be brought into view. While in appearance the spinal cord was not severed, nevertheless between the date of the operation and the time of the trial Becker remained in the hospital, and there had been no change in his condition, for he had no motion in his lower extremities, and no control of his bowels and bladder.

According to Dr. Bagley, with the condition having remained so long, it could be said at the time of the trial with certainty that there would be no useful return of muscle power. For as he expressed it: “if one had the fibre cut in his spinal cord, it remains cut. The only paralysis from which one can recover in a spinal cord injury is a paralysis due to a blocking of the function and not a complete cutting of fibre, because those fibres don’t go together when they are interrupted.” Dr. Bagley also testified that he knew that prior to the injury Becker had been subject to epileptic fits, and ⁵³⁹ gave an opinion that, if he had a severe attack lasting from five to ten minutes, he would subsequently be in a stupor several more minutes or even up to an hour. He also stated that, had he been seized with a convulsion when at the top of the sliding board, with the result that he fell and injured himself as he had found him, the fall would not have arrested the convulsion, which would have continued its natural course.

Dr. Henry F. Ullrich, a specialist in orthopedic surgery, who, at the request of Dr. Bagley, had observed Becker from the day following his operation, testified that his clinical signs showed an injury to the spinal cord, and, since the injury had been so long without any improvement, he deemed it one that would not get well. Jiro Morita, a native of Hawaii, who had resided in the United States since 1913, testified that he was a teacher of physical education; that he knew Becker and his mother prior to the injury. The witness had been stationed at several parks in and around Baltimore, was with the P. A. L. in charge of playgrounds during the summers of 1916, 1917 and 1919 to 1922, inclusive, and on the evening of July 20th, 1938, after hearing of Becker’s injuries, made a visit to Gwynn Oak Park and examined the sliding board which, according to the testimony, Becker was using at the time of his fall. He stated that his work brought him in contact with sliding boards of the type examined by him at Gwynn Oak Park.

Shown what he was told were photographs of the board from which Becker fell, he was asked to observe any differences between them and the sliding board immediately after the boy’s injury. His answer was that the photographs shown him were different from the board when he first saw it just after the accident; that the difference consisted in the slope, for the board which he saw “was a great deal steeper” than the one shown in the photographs, and that would mean that the base was narrower instead of wider. He modified that statement by saying that the slide itself was the part that would be steeper, and added that another difference consisted in hand bars ⁵⁴⁰ shown in the photograph at the top of the platform, as, when he saw it, he did not observe any such hand rails at the top. He admitted that he did not test the board by going to its top, but stated that the height from step to step was eight inches, that there were twenty-one steps to the top, making a total of 168 inches,. slightly over fourteen feet from the top of the platform- to the ground.

He examined the board again about July 1st, 1939, and gave an opinion that it had been moved, but was still more than fourteen feet high. He was then asked how that height and angles at which the ladder and slide were adjusted, when seen immediately after the boy was injured,