Hickory Transfer Co. v. Nezbed

Sobeloff, C. J., delivered the opinion, of the Court. Louis Nezbed and his wife, appellees here, were awakened in the early morning of March 17, 1951, by a 19000-pound tractor-trailer crashing violently into their house at the southeast corner of Orleans Street and Milton Avenue in Baltimore City. The vehicle caught fire, spreading flames to the house; the appellees were both injured, Mr. Nezbed seriously; the house and the household effects were heavily damaged; and the plumbing supply store which Mr. Nezbed conducted below the living quarters was demolished. The tractor-trailer of Hickory Transfer Company, driven by its chauffeur, Lloyd DeWitt Shank, had just collided with an automobile which belonged to Mrs. Bessie V. Herberson and was operated by Gideon G. Baugher, Jr. An unusual feature of the case is a mechanically defective traffic signal.

As Baugher proceeded south on Milton Avenue, approaching Orleans Street, he had a green light upon which he relied as entitling him to enter the intersection. At the same time the tractor-trailer was proceeding east on Orleans Street toward Milton Avenue. Unknown to the operators of both vehicles, one side of the traffic light which overhung the intersection was out of order, so that while it showed red for traffic proceeding west on Orleans Street and would normally also show red for traffic going east, it was in fact dark for eastbound traffic. The chauffeur of the tractor-trailer, being on a boulevard highway and ²⁵⁷ seeing no traffic light there, relied on the right of way to which, under the circumstances, he felt entitled.

The two vehicles collided and the tractor-trailer was propelled, it was agreed, a distance of fifty-four feet into the Nezbed property. At the trial a directed verdict was entered in favor of Herberson; and the jury found in favor of Baugher. There is no appeal against either of them. The jury also found a verdict against Hickory Transfer and Shank, and from the judgment thereon they appealed.

Two questions were argued here: (1) Was there sufficient evidence of negligence against the appellants Hickory and Shank justifying the Court in submitting the case to the jury as to them and refusing later, after verdict, to grant their motion n.o.v.? (2) Were certain statements allegedly made by Shank to a police officer and to Baugher, after the accident, properly admitted in evidence against the appellants or either of them? To present these questions in their proper context it is necessary to recite the testimony in some detail. The plaintiffs called as their witness Officer Walter G. Schaefer, one of two policemen who responded in a radio car within a few minutes after the crash.

The officer made notes as he spoke with Shank. According to Schaefer, Shank showed no awareness of the faulty operation of the light but thought the signal was turned off when he entered the intersection. As he did so, Schaefer testified that Shank told him, he noticed the headlights of the car approaching from his left. Plaintiff’s counsel interrogated the officer: “Q. What did he [Shank] say, if anything, about his brakes ?

A. If I remember correctly he said as he applied his brakes he swerved to his right, that he struck a vehicle, and then his brakes mushed.” When the officer read his notes, however, a somewhat different version emerged. These, not signed by Shank, attributed this statement to him: “I cut to my right ²⁵⁸ and then my brakes mushed and then it gave way completely, I also recall hearing the air released, as it was then I struck this car.” It will be noted that of the officer’s two versions of Shank’s statement, the memorandum is- potentially the more damaging to the defendants; for while the officer did testifiy from unaided memory that Shank told him he first struck the Baugher car and then his brakes “mushed”, the memorandum has it that the brakes “mushed” and gave way completely, and then he struck the car. The first version suggests the possibility that the collision itself may account for the behavior of the brakes; the second indicates that the difficulty with the brakes occurred before the collision. Appellants’ counsel did not object on behalf of Shank to the admission of the officer’s oral version of Shank’s statement; but as to Hickory he did object.

While conceding that Shank was Hickory’s employee, he challenged the admissibility of the alleged statement against Hickory, insisting that it was not part of res gestae. Further examination of Schaefer elicited the written version of the conversation between the witness and Shank. Appellees insisted on it as evidence against both appellants. Over objection of appellants’ counsel this was admitted against Hickory as well as its chauffeur.

Appellants’ attorney drew from the witness the acknowledgment that it is perfectly possible that Shank said his “brakes mushed and the air released” after the collision; also, that it is possible Shank told him the brake trouble happened when he collided — not that it happened and then he collided. The witness maintained, however, that he put down what he [Shank] “told me first, when he did tell me it”. Another Police Department witness testified that the signal in question works on a 50-second cycle, that is, it takes 50 seconds from the beginning of one green and red phase to the beginning of the next green and red phase. On Milton Avenue it is 17 seconds green, ²⁵⁹ 3 seconds amber, and 30 seconds red.

On Orleans Street it is 27 seconds green, 3 seconds amber, and 20 seconds red. The amber overlaps the outgoing green light only. When Shank took the stand he testified that the truck left North Carolina several days before the accident. No difficulty had been experienced with the brakes prior to the collision.

He testified that as he approached Milton Avenue his speed was in the neighborhood of twenty-five miles an hour, which is permissible on that highway; that the light at Patterson Park Avenue, the first one to the west of Milton Avenue, was in normal operation; that while he was familiar with the general neighborhood he thought, when he saw no light at Milton Avenue, that it was simply turned off, not that it was defective. He further emphasized his version of his statement to the policeman. He insisted that his statement, as well as the fact itself, was that he found at the instant of the accident and not before, that he could not control the brake. There were no skid marks.

The president of Hickory testified that he had himself examined the brakes before the truck left on that particular trip, and they were in perfect working order and he so reported to the Interstate Commerce Commission. Also, that if the regular brake on the tractor failed to operate the automatic emergency device on the trailer would go into action as soon as the air pressure was reduced to sixty pounds or under, thus applying the necessary gripping force to enable him to stop the tractor-trailer within twenty-five or thirty feet. The defendant Baugher testified (over objection interposed by Hickory) that at the hospital Shank told him: “When I hit my brakes I blew the air brakes and when I hit you I had no brakes.” In view of our conclusions, hereinafter set forth, it is not necessary to decide whether there was error in the admission of Shank’s statement at the hospital over the objection of his employer Hickory, as part of the res gestate. We may assume, for present purposes only, that it was properly admitted. ²⁶⁰ From the foregoing facts the legal questions emerge.

Our first inquiry properly is, what evidence is there of negligence on the part of the appellants? The appellees assert there is such evidence, because Shank “inferentially” admits a violation of the speed limit. Their reasoning is that the limit on Orleans Street is 25 miles an hour, the traffic lights are set for a traffic flow at that rate, and that if Shank met green lights, as he testified, at Chester Street and at Patterson Park Avenue, four blocks and two blocks, respectively, west of Milton Avenue, and if he continued in the rhythm of that traffic, he would have met a green light at Milton Avenue. If he had reached Milton Avenue when the light was green, then, since the green light was not out of order, no accident would have happened.

He must, therefore, so the argument goes, have speeded. We cannot accept this reasoning. Shank reached Milton Avenue when the signal would have shown red, if it were in operation, but this is either because he exceeded the 25-mile rate, or fell below it, somewhere between Patterson Park Avenue and Milton Avenue. We are not permitted to guess from this that he proceeded faster rather than slower; nor may we speculate that, if for a short distance he drove faster, that it was at the Milton Avenue intersection rather than farther west.

It happens frequently in driving along a boulevard with signal lights,