Hebner v. Powell

Mitchell, J., delivered the opinion of the Court. This appeal is from a judgment on a verdict entered, in the Superior Court of Baltimore City, for the plaintiff, in an action for personal injuries and property damage sustained by the plaintiff and growing out of a collision between an automobile owned by the plaintiff, in which she was riding at the time of the accident, with an automobile owned and operated by the defendant. The facts with reference to the manner in which the accident occurred, as detailed by witnesses for the plaintiff, are undisputed; the defendant having offered no testimony on his own behalf. Briefly, these facts are that on the evening of November 6th, 1937, at 8 o’clock, the plaintiff was riding in her automobile, which was being operated by her husband, and proceeding in a southerly direction on Falls Road, at a point about one hundred and fifty feet south of Old Pimlico Road, in Baltimore County, Maryland.

At the time of the accident the plaintiff’s car was being driven at a speed of from twenty-five to thirty miles an hour on its right side of the road. The headlights of the defendant’s automobile were first observed by the driver of the plaintiff’s car at a point about four or five hundred feet distant, at which time the former automobile was proceeding on its right side of the highway. The uncontradicted facts connected with the manner in which the accident happened are detailed by the plaintiff’s husband and chauffeur as follows: “The Falls Road at the place where the accident occurred is 22 feet wide, including the shoulders, but I did not measure it. When ²⁴⁰ I saw the headlights of this car, it 'was on its proper side and when it was twenty feet or more in front of me, it cut across and the right side of his car hit the center of my car and it continued past me and swung off the road, facing south, the same way I was going, about three feet off the shoulder.

The other car struck my car right in the center of the radiator. * * * The defendant’s car was going at between sixty-five and seventy miles an hour when it hit my machine.” According to the above witness, the car he was driving, after the accident, was still fourteen inches to his right of the center line of the road, and the defendant’s car came to a stop slightly to the rear and to the right side of the plaintiff’s car and, as stated, facing south, or the opposite direction in which it was proceeding before the accident, and entirely off the highway. The plaintiff sustained injuries consisting of lacerations of the scalp which extended across the forehead and nose; she received bruises and cuts about her limbs, a sprained back, a fractured rib, and was completely incapacitated for four weeks. She testified that she suffered pain in her whole body and could not perform any of her household duties for more than eight months after the accident, and at the time of the trial was still suffering from the effects of her injuries to the extent that she was unable to fully perform her household duties. Dr. Niblett, her regular physician, testified that the scars on her face and body were permanent.

The only exceptions stressed by the appellant in his brief, and in the oral argument before this court, were two in number; the first being with reference to the rulings of the trial court upon evidence, and the second as to the rejection by the court of the defendant’s second prayer. These exceptions will be considered in the order of their sequence. The declaration contains two counts, the first relating to the personal injuries sustained by the plaintiff, and the second to the destruction of the plaintiff’s automobile. At the trial evidence tending to show the practical ²⁴¹ destruction of the plaintiff’s automobile was supported by several witnesses, who testified that after the accident the plaintiff’s car was removed a short distance to an adjoining property in order to clear the line of traffic, and that it was in the same condition after it was moved as it was before the removal.

The witness Donald McCulloh testified that he-helped to remove the car, and that its condition was unchanged when Jack W. Powell, a son of the plaintiff, reached the scene of the accident after it had been moved. Jack W. Powell, after detailing the damage done to the car, testified that two days after the accident it was towed away and that the towing truck, in the operation of moving the car, accidentally backed into the left front fender and headlight, causing additional damage to that extent. Other than this latter damage, he testified that the car was in the same condition as when he first saw it after the accident; that in the latter condition it was towed to his father’s property on the Falls Road; that his father traded it in; that he was living at his father’s home in September, 1938, when the car was disposed of, and that it had not been used or driven after the accident. Mr. Powell was followed by Robert E. Jenkins, who testified that he had been engaged in the automobile business for twenty-two years, and that he first saw the car after the accident in the back of Mr. Powell’s yard on Falls Road, in September, 1938.

He was then asked the question: “What was the condition of the Powell car when you examined it?” Objection was made to the question upon the ground that the car had been stationed in the Powell yard for ten months, and the witness, not having seen the car after the accident, was not, therefore, in position to say that the condition in which he found it ten months later was the same as the condition in which the car was immediately after the accident. It was conceded that the wrecked car had remained in the open back yard of the Powell home from the time it was towed there until the witness saw it, and the theory of ²⁴² the objection was that damages caused by weather conditions or otherwise might have effected a changed condition in the car between the indicated intervals. The court overruled the objection, and its action is the basis