Jones v. Federal Paper Board Co.

Barnes, J., delivered the opinion of the Court. This appeal was taken by the plaintiffs below, Robert W. Jones (Robert), Ian C. Jones (Ian), both infants by their father and next friend, William L. C. Jones (William) and by William, individually, from judgments, of $5,000 in favor of Robert, of $200 in favor of Ian and of $1,500 in favor of William entered in the Circuit Court for Baltimore County (Mac-Daniel, J.) against the defendant, John B. Leary (Leary), only, upon verdicts of the jury. The jury returned verdicts in favor of the other defendants, Federal Paper Board Company, Inc. (Federal), a corporation of the State of New York, and Wayne L. Cumbee (Cumbee), the operator of the tractor-trailer owned by Federal which was involved in the collision with Leary’s automobile, in which Robert and Ian were passengers in Baltimore County at the intersection of York Road and Middle-town Road shortly before 8:00 a.m. on February 25,1965. An action was originally filed on behalf of Robert and Ian by William as their father and next friend, and by William individually, against Federal and Cumbee.

A third-party claim was then filed by those defendants against Leary. An amended ⁴⁷⁸ declaration was later filed by the plaintiffs joining Leary as a defendant. Leary and his infant son, Charles E. Leary, filed an action against Federal and Cumbee and the two cases were consolidated for trial. York Road (Maryland Route 45), at its intersection with Middletown Road, is 24 feet wide and has two lanes of traffic running north and south.

Middletown Road consists of two lanes of traffic running east and west and is 22 feet wide. Both of these roads have a surface of black top macadam. On York Road, approximately 117 feet north of the southern boundary of Middletown Road there is a steep hillcrest. There were three signs facing drivers going south on York Road toward the hill-crest.

One sign posted the speed limit at 30 miles per hour. Another sign contained the word “SLOW”. The third sign indicated the presence of an intersection just beyond the hillcrest. The speed limit for southbound traffic on York Road remained at 30 miles per hour until approximately three-eighths of a mile south of Middletown Road.

At the time of the accident the road was wet. It had been raining just prior to the accident but the rain had stopped shortly before 8:00 a.m. Cumbee was operating a tractor-trailer unit owned by Federal, in a northerly direction on York Road. The vehicle weighed approximately 25,000 pounds, and was carrying a cargo weighing approximately 15,000 pounds, a total of approximately 40,000 pounds.

The tractor was 7 feet 9 inches high and the height of the trailer was 12 feet 4y2 inches. Five orange lights were operating across the top of the cab, in addition to six lights on the trailer and two parking lights on the front of the tractor. Cumbee intended to make a left turn from York Road into Middletown Road. To accomplish this, he had to enter Middletown Road at an angle, with part of the truck crossing the southern lane of Middletown Road.

He testified that when he reached a point 5 to 10 feet south of Middletown Road, he brought the tractor-trailer to a complete stop in the northbound lane of York Road with his left directional signal in operation. The vehicle remained stopped for about 5 seconds, while Cumbee checked both roads for any approaching traffic. He could see up York Road to the north as far as the hillcrest, but could not see beyond the hillcrest. Observing no traffic, he ⁴⁷⁹ started ahead and began to turn the tractor-trailer slowly across the center line of York Road.

When the left front of the tractor was 2 or 3 feet across the center line of York Road, Cumbee saw an automobile being driven south on York Road by Leary come over the hill at a speed in excess of 40 miles per hour. Cumbee stopped his vehicle immediately, but Leary came straight down the hill toward him. Leary did not decrease his speed and made no attempt to swerve around the stopped tractor. Within a few seconds after Cumbee saw the Leary automobile, the two vehicles collided at a point 5 feet west of the center line of York Road and 7 feet north of the south side of Middle-town Road.

Leary, who was a teacher at the Hereford High School, testified that he was thoroughly familiar with York Road and the vicinity of the accident, inasmuch as he travelled the route every day to and from his place of employment. He also testified that he knew that the speed limit was 30 miles per hour and knew of the sign indicating the intersection of York Road with Middletown Road. He also knew that trucks frequently made turns at this intersection and that he might have to stop for one of those trucks. He stated that he decreased his speed as he came over the crest of the hill and that when he came up on the crest of the hill, he saw Cumbee’s tractor which was then stopped on the north side of York Road.

He was able to see the entire tractor-trailer at that time. He then put his foot on the accelerator of his Ford Falcon automobile and increased the speed of his car to 35 or 40 miles per hour. When he had driven half-way down the hill toward the tractor, a distance of approximately 52 or 53 feet, he stated that he saw the Cumbee vehicle make a jumping or bucking movement across the center line of York Road. He then attempted to apply his brake, but was uncertain whether he was actually able to slow down his car before the collision.

Fie stated that both vehicles were moving at the time of the collision. The cost of repairing Leary’s vehicle was $961.22. The investigating police officer found debris located under the front bumpers of the vehicles which indicated that they did not move from the point of impact. The officer testified that Leary stated that he had been travelling at a speed of between ⁴⁸⁰ 35 and 40 miles per hour.

He told the officer that “he came over the hill and the truck was there and they collided.” Howard Kroder, who had lived at York Road and Middle-town Road in Parkton for five years and who was a disinterested eye witness to the accident, testified that he saw the tractor-trailer stop on York Road in the northbound lane and then proceed a short distance across the center line and stop again. A few seconds later, he saw Leary’s vehicle pop over the hill “like a shot out of a cannon,” proceed down the hill and collide with the stopped truck. The truck did not move at all from the time the Leary vehicle came over the hill until the collision occurred. Kroder estimated that Leary was travelling at a speed of at least 40 miles per hour when he came over the crest of the hill and stated that Leary did not slow up prior to the collision.

Kroder further testified that Leary made no effort to drive around the stopped truck, even though there was ample room for him to do this. After the collision, Kroder heard Leary state that he was driving fast because he was going to be late for work. John Vandervat, an investigator who had interviewed Kroder for Cumbee and Federal, was subpoenaed and called as a witness for Leary. Counsel for Leary demanded that Vandervat produce his memorandum in regard to his interview with Kroder and this memorandum was then read into evidence.

The memorandum indicated that Kroder had witnessed the accident; that Cumbee’s truck had stopped before turning to the left; that no southbound vehicles were visible when Cumbee began his left turn; that the truck then stopped again with its left front only a short distance over the center line, after which the Leary vehicle came over the crest of the hill “like a bat out of hell. He was flying.” The memorandum further indicated that Leary did not slow down, apply his brakes or seek to avoid hitting the truck; that he went straight ahead and struck the left front of the stopped truck with the front of his automobile. The memorandum further indicated that Kroder’s opinion was that the accident was solely the fault of Leary who was known as an extremely fast driver. It stated, “The kids are always talking about him flying very low and wanting him to get an airplane.” ⁴⁸¹ The plaintiffs introduced a profile plat into evidence for the purpose of indicating sight distance, based upon aerial photography, but no actual measurements were made at the scene of the accident to test its accuracy.

This plat indicates that Cum-bee’s sight distance of the white top of Leary’s automobile would be approximately 310 feet. Leary and his son Charles, who was on the front seat with him, were both wearing seat belts and were saved from serious personal injuries. There were no seat belts for rear-seat passengers and Robert and Ian were thrown with substantial force resulting from the impact against the rear of the front seat. Ian claims that he suffered a “broken arm”; the x-rays showed “some cortical irregularity which may represent an incomplete fracture without displacement.” An x-ray taken a month and one-half after the accident failed to indicate any evidence of a fracture.

Ian was required only to wear an elastic bandage and the arm was soon completely healed. He was back in school the day following the accident. Robert, however, was more seriously injured. Blood from his face poured down the rear of the back seat and he was knocked unconscious.

His nasal bone was broken and his upper jaw bone was comminuted, the broken pieces being visible in the puncture wound through the floor of his nostril. There was a fracture of the maxilla under the upper lip and several of his front teeth were dislodged, so that root canal therapy and capping were required. The injury healed well, and at the trial, Robert’s only complaint was that his nose was more pugged than it had been prior to the accident. Testimony on his behalf indicated that Robert was unable to resume his normal physical activities until August of 1965.

He did not return to school until September of that year, being tutored in the meantime at home. There was evidence, however, that he was playing normally 3 or 4 weeks after the accident. Dr. C. Adam Bock, a well known dentist and oral surgeon in Baltimore City, a past president of the Baltimore City Dental Society, past president of the Maryland Dental Society and past president of the American Society of Oral Surgeons, and whose practice is now limited to oral surgery, examined Robert for the defendants on June 9, 1967. He found that Robert’s treatment for the injuries to his ⁴⁸² teeth had been successful, that there was no evidence of any fracture of the maxilla from the x-ray examination and that there was no evidence of any malformation or deformity of either the maxilla or the mandible.

There was also evidence that Robert had difficulty with his teeth and gums prior to the accident; that he was susceptible to dental cavities, including cavities in his front teeth. The life expectancy of his teeth would have been shortened even if the accident had not occurred. There was also evidence that Robert’s facial features were not changed as a result of the accident. Counsel for the plaintiffs submitted a number of requests for instruction, and also made a motion to take judicial notice of a charge to a jury in another case, all of which were denied by the trial court.

The trial court gave a comprehensive charge to the jury to which the plaintiff excepted in several regards, hereinafter considered. After the verdicts already mentioned, the plaintiffs filed a motion for a new trial which the trial court overruled. From judgments on those verdicts, the present appeal was timely taken. The plaintiffs raise five questions before us: Did the trial court commit error prejudicial to the plaintiffs— 1.

In its instructions to the jury in regard to damages ? 2. In not taking judicial notice of its charge in a prior case in which 7 of the 12 jurors in the present case had been instructed, and in not giving a closely similar charge in the present case ? 3! In either not directing a verdict in favor of the plaintiffs against Federal and Cumbee on the issue of liability or in failing to charge the jury that these defendants were prima facie negligent ? 4. In failing to grant the plaintiffs leave to present certain voir dire questions ? 5.

In permitting allegedly improper argument by counsel for Leary ? We find no prejudicial error in the rulings of the trial court and will affirm the judgments. We will consider the five questions in the order mentioned, and will refer to any additional facts and portions of the trial ⁴⁸³ court’s charge to the jury as may be deemed necessary for such consideration. 1. After certain general observations and statements in regard to preponderance of the evidence and burden of proof both in regard to primary and contributory negligence, the trial court instructed the jury as follows : “Remember the burden of proof stays with the plaintiff as to every element of the case; that is to say, to persuade you that the defendant was guilty of negligence, to persuade you precisely what the injuries were, what the expenses were, what his pain and suffering were, just as the burden stays with the defendant all the way through to show that the plaintiff is guilty of contributory negligence. “So, you should not speculate or conjecture about any element of this case.

You should not speculate as to what may or may not happened, as to what the plaintiff’s injuries may or may not have been, but you must decide on it from what you have heard from the witness stand and the exhibits which you have seen.” Then after a further instruction in regard to contributory negligence and a definition of negligence, with an instruction that the verdict must be unanimous and that the jury should consider the evidence in its entirety as to both parties, the trial court instructed the jury: “If you should find for the plaintiff, then, in considering and estimating the damages you are entitled to take into consideration the state of health and physical condition of the plaintiff prior to his injuries and the consequence of his injuries. You should consider the physical and mental suffering and disfigurement to which he may have been subjected as a result of injuries as well as medical expenses and other monetary losses incurred as a result of the injuries to which he has been subjected; and you shall consider whether or not those injuries are permanent and how far, if ⁴⁸⁴ at all, they are calculated to disable him from engaging in those activities and occupations for which, in the absence of such injuries, he would otherwise have been capable of engaging. Taking into consideration those matters, you should award, if you find in his favor, to the plaintiff such damages as in your opinion will be fair and just compensation for the injuries, expenses, and losses which you may find he has sustained as a consequence of the accident. “You are to keep in mind that these damages are to be just exactly what I have said, that is, fair and just compensation. They are not to be of a punitive nature, they are not intended to punish the defendant, are not intended to reward the plaintiff; they are intended to be fair and just compensation for his injuries and expenses. “You are instructed that the amount of damages to be awarded, if any, is to be based solely upon the evidence in the case, and the amounts claimed by the plaintiff in the declaration or claimed by his attorney in argument are not evidence and are not to be considered in any way as a measure of the damages, if any, to which the plaintiff may be entitled.” The plaintiffs and appellants particularly object to the use of the word “precisely” in the first sentence of the portion of the charge above quoted and earnestly argue that it puts an untenable burden on them to prove the damages, including the pain and suffering, with precision.

The Maryland law is well established that the trial court's instructions to the jury must be read as a whole and that it is not permissible to take isolated portions of the charge which may contain inartificial methods of expression, when the charge, considered as a whole, fairly presents the case to the jury on the issues presented by the evidence in the case. As Judge (now Chief Judge) Hammond stated, for the Court, in West v. Belle Isle Cab Co., 203 Md. 244 , 100 A. 2d 17 (1953), in commenting on the charge of the trial court in that case in regard to damages: “We think that the trial judge fairly presented the ⁴⁸⁵ issues which the evidence, required to be submitted to the jury. The charge must be considered as a whole and not condemned because isolated portions of it do not seem to "do justice to one side or the other, nor because of the method of expression. Fisher v. Baltimore Transit Co., 184 Md. 399 , 402 ; Larkin v. Smith, 183 Md. 274 ; Reindollar v. Kaiser, 195 Md. 314 .

As Judge Marbury said for the court in Bull Steamship Lines v. Fisher, 196 Md. 519 , 529: ‘The purpose of oral charges is to tell the jury in simple words what the law is in a case before them, and we will not be too particular in criticizing the words used if the result is sufficient.’” ( 203 Md. at 250-51 , 100 A. 2d at 20 .) West was cited with approval and followed by the Court in Casey v. Roman Catholic Archbishop, 217 Md. 595 , 143 A. 2d 627 (1958), in which Judge Horney, for the Court, stated: “If the original and amended instructions are read together as we read them, we think it is clear that the charge as a whole contains a fair statement of the law with respect to damages in a case such as this. See West v. Belle Isle Cab Co., 203 Md. 244 , 100 A. 2d 17 (1953). The law on the subject was fairly covered by the instructions in the present case, and that is all the rule requires. We have repeatedly stressed the fact that we cannot put the ‘trial judge in a strait jacket and prescribe or adopt a formula to be used and followed by him,’ with respect to his instructions to the jury.

State, use of Taylor v. Barlly, 216 Md. 94 , 140 A. 2d 173 (1958), and cases therein cited.” ( 217 Md. at 612 , 143 A. 2d at 634 .) In our opinion the instructions of the trial court, taken as a whole, do not mean, and the jury could not reasonably have thought they meant, that the plaintiffs were required to prove their damages with mathematical exactness. The trial court meant simply that the plaintiffs had the burden of proving their damages beyond mere conjecture and speculation and that the jury’s verdict must be based upon the evidence and the appli ⁴⁸⁶ cable law. See Adams v. Benson, 208 Md. 261, 271 , 117 A. 2d 881, 885 (1955). But, say the plaintiffs, the trial court “overloaded its charge with Cautionary Instructions” which had the prejudicial effect of diminishing the damages of the plaintiffs.

We do not agree with this argument. On the contrary, in our opinion, the cautionary instructions were proper in view of the controversy between the parties in regard to damages and particularly in regard to whether or not (1) a pre-existing condition of Robert’s teeth caused or contributed to the then existing condition of his teeth, (2) there was any disfigurement of Robert’s nose and face, and (3) there was any fracture of Ian’s arm. Under these circumstances, it was appropriate for the trial court to give the cautionary instructions already mentioned. As Judge Parke, for the Court, aptly stated in Riley v. Naylor, 179 Md. 1 , 16 A. 2d 857 (1940), referring to cautionary instructions in regard to damages: “While the accent is on the variety and scope of the elements that may be considered, the prayer requires that every form of the permitted damages is in proximate causal connection to the injuries sustained.

The adaptability of this instruction to various and numerous conditions requires general and flexible terms, which acquire their requisite measure of certainty by the necessity of their nature and certain relation to particular wrongful injuries. It is, therefore, helpful and permissible that a larger measure of definiteness be given by other cautionary instructions to inform the jurors more specifically the circumscribed mode and boundaries of their award of damages.” ( 179 Md. at 7 , 16 A. 2d at 860 .) We find no error in the instructions, considered as a whole, in regard to damages. 2. The verdicts in this case were rendered on October 4, 1967. After a motion for a new trial filed by the plaintiffs was overruled by the trial court on October 17, judgments were entered upon the verdicts