Holloway v. Eich

McWilliams, J., delivered the opinion of the Court. This litigation is an outgrowth of appellant Holloway’s brief encounter with appellee’s MG roadster in the late afternoon of 31 March 1965 on Cub Hill Road near its intersection with Powderhorn Lane in Baltimore County. The locale is about two miles northeast of the intersec ⁵⁹³ tion of Old Harford Road and the Baltimore Beltway. A year or so later Holloway (to his own use and to the use of the State Accident Fund) sued appellee (Eich) alleging serious and permanent injuries and claiming $25,000 damages.

The trial took place before Proctor, J., and a jury, on 23 October 1968. The verdict of the jury was in favor of Eich. From the ensuing judgment against them for costs the appellants have taken this appeal. They advance four contentions only one of which, however, requires more than cursory notice.

In March 1965 trash was collected along Cub Hill Road by the Stambaugh Company. At the time and place mentioned above one of its trash trucks, driven by Holloway’s father, came to a stop at a point in the northbound lane, there ten feet wide, of Cub Hill Road. The southbound lane, which is separated from the northbound by a double yellow line, is about eight feet wide. Holloway and Dublin Johnson, his cousin, had been employed to pick up the trash cans, empty them into the truck and replace them along the side of the road.

Eich, also northbound on Cub Hill Road, reduced his speed to about 15 miles per hour when he saw the truck. He observed Holloway, carrying a trash can that had been emptied, walk from the truck to the west side of the road. When Holloway reached the shoulder, Eich turned into the southbound lane and proceeded to pass between Holloway on the shoulder and the truck in the northbound lane. In the process the left tip of his rear bumper came in contact with Holloway’s left leg.

He said he heard “a sort of a thud, a dull thud, a bump” at the rear of his car as he went by Holloway. After he had stopped in the northbound lane, in front of the truck, he went back and asked Holloway “if he had kicked the back end” of his car and “if he had been hurt.” Holloway testified that, having put down the empty can, he picked up a full one that was resting on the shoulder, placing his left hand “on the bottom of the can” and his “right hand on the top * * which put the can on his left side. He turned to the left and when he took a step forward with his left ⁵⁹⁴ foot he came in contact with Eich’s rear bumper. He said he was nearly blind in his left eye, a circumstance which, in this context, seems to be without significance.

Officer Howard W. Owings of the Accident Investigation Division of the Baltimore County Police arrived at the scene of the accident within a half hour after it happened. He said Holloway, when he arrived, “was either in the ambulance or on the way to the hospital, or was waiting to get in the ambulance, * * *.” He could not recall any conversation with Holloway but it appears that he interviewed his father, his cousin and Eich. He made his report on the form provided by the (Maryland) Department of Motor Vehicles, showing by a diagram in a space provided therefor the relative positions of the vehicles and the injured pedestrian- Under the heading “Describe What Happened” he wrote the following: “Investigation revealed — Unit 1 [Eich] was attempting to pass a garbage truck that was stopped in the roadway. As unit 1 was passing the truck, one of the collectors [Holloway] that was on the South edge of the rd. started to walk North across Cub Hill Rd. and walked into the left rear bumper of unit 1.

The width of Cub Hill Rd. is 18 ft.” (Emphasis added.) At trial in the court below Officer Owings was produced as a witness by Eich. He was examined at length and in detail by counsel for Eich and cross-examined in like manner by counsel for Holloway. The redirect examination was brief. Nowhere in the direct, cross or redirect examination of the officer, except in respect of weather conditions, was the accident report mentioned or referred to.

The following are excerpts from the recross and second redirect examination: “RECROSS EXAMINATION “By Mr. Hirsch: “Q. I have one question, Officer: I believe that you had on the diagram that this so-to-speak road comes around like that, is that right ? ⁵⁹⁵ “ (Mr. Brizendine) Let him draw it. “Q. (Mr. Hirsch) Do you want to draw it? I have no objection. Come on down and draw it how you have it on your diagram.

It probably would be better. “ (Witness goes to the blackboard.) “A. On my diagram this is just roughly how it was; cut off here. “Q. Where do you have the truck in the diagram? A. I had the truck located right here. “Q. About there? A. Yes. “Q. Where did you have the car? A. The car would be here. “Q. Is that— A. This is on my diagram. “Q. Where do you have the shoulder of the road?

A. The shoulder of the road is not marked on the diagram. “Q. Well, don’t you have it? I show you this diagram; I presume this is the same as yours although it doesn’t look it. A. I think it was a photostatic copy. “Q. Where do you have this man’s head and body in relationship to the shoulder on this diagram ?” “A. On this diagram that I have, it shows his head that way. “Q. Do you see any part of his body on this diagram that is on the road?” “Q. On this diagram, I show you this report; do you see any part of this man’s body on the road? A. On this diagram it shows the feet just beyond this spot. “Q. Will you put a little x mark there?

A. Right about there. “Q. Right about there? A. Yes. “Q. And is that, where did you have the car on this diagram in relationship to his feet? A. ⁵⁹⁶ On our diagram I have the car would be right so. This is not to scale, counsel. “Q. Neither is this.

A. Right. “ (Witness returned to the witness stand.) “Q. (Mr. Hirsch) This is an official report that I’m referring to. A. Yes. “Q. The photostatic copy? A. Yes. “Q. And, Officer, you had this actually happening just beyond the curve in the road, is that right?

A. Yes, sir; that’s not to scale either. “REDIRECT EXAMINATION “By Mr. Brizendine: “Q. You just identified this as an official report. Is this it; is this a copy of it ? “ (Mr. Brizendine) Do you want to take ours ? “ (Mr. Hirsch) Yes, they’re both official reports. “ (Mr. Brizendine) I’ll take either one you want. “Q. (Mr. Brizendine) This is the copy of the official report? A. Yes, sir. “(Mr. Brizendine) I’ll offer it. “ (Mr. Hirsch) I object to it’s being offered. “Your Honor, I objected and I’d like to have a ruling. “ (The Court) Overruled; you referred to it. “(Mr. Hirsch) But I didn’t refer to the full report. “ (The Court) You referred to the report. “(Mr. Hirsch)'Yes. “(The Court) Reference to a document by either side makes it admissible automatically at the request of the other side. “ (Mr. Hirsch) Including the Officer’s comments? “(The Court) That’s the risk you take when you refer to it. “(Mr. Hirsch) I object. “ (The Court) Overruled.” I and II.

Holloway insists that the evidence is legally sufficient ⁵⁹⁷ to establish, as a matter of law, that Eich was guilty of primary negligence, and that there is no evidence legally sufficient to show contributory negligence on his part. Therefore, he concludes, Judge Proctor succumbed to error when he left it to the jury to decide these two questions. We are not persuaded that Judge Proctor erred. Indeed his submission of the case to the jury seems to us to have been so obviously correct as to relieve us of the necessity of discussing it further.

III

Holloway next contends that Judge Proctor “committed prejudicial error in admitting that portion of the police report wherein Officer Owings set forth his conclusions, based upon information received from persons other than the parties to these proceedings, as to how the accident in question occurred.” This requires “more than cursory notice.” The question whether police accident reports are admissible has been often before the courts. Generally speaking, the great majority have denied their admission on the grounds that the officer’s notations in the report are often based, in whole or in part, upon inadmissible hearsay or that the officer’s comments in respect of responsibility for the accident violate the rule against the expression of an opinion. See C. McCormick, Evidence § 294 (1954); 69 A.L.R.2d 1148 , 1151 (1960); 32 C.J.S., Evidence § 638 (1964); 30 Am.Jur.2d, Evidence § 934 (1967). A growing number of courts have held, however, that the portion of an accident report based on the officer’s first-hand knowledge is admissible as proof of the facts recorded therein upon the ground that it is either a public record or a record made in the regular course of business.

Thus, the officer’s notations of the length of the skid marks, the dimensions of the road, the make of the vehicles involved, visibility and the weather would be admissible under