Levin v. Arrabal

Powers, J., delivered the opinion of the Court. Asserting error leading to the judgment for Dr. Carlos E. Arrabal against him for damages resulting from collision of two automobiles on a shopping center parking lot, Joseph Levin seeks reversal of that judgment, and a new trial. ⁹¹ Questions briefed and argued by appellant are: I. Did the lower court err in granting the plaintiff’s motion for directed verdict on the issue of: a. Primary negligence? b. Contributory negligence ?

II

Did the lower court err in directing a verdict on liability?

III

Did the lower court err in refusing to grant the defendant’s request for instruction No. 2?

IV

Did the lower court err in refusing to grant the defendant’s request for instruction No. 7? V. Did the trial court err in refusing to strike portions of Dr. Groll’s testimony?

VI

Was the jury required to speculate and engage in conjecture relative to loss of earning capacity in the future as an element of damages ? Recital of the evidence concerning the collision is necessary to view Questions I and II in the perspective of applicable law. The collision occurred shortly after 2:00 P.M. on April 23,1965 on the lot of Mondawmin Shopping Center in Baltimore. Officer James Saunders of the Northwestern District came to the scene in response to a call.

He testified from a copy of the report he originally made. He drew a diagram showing a driving lane, divided by a center line, indicating the west side for southbound traffic, and the east side for northbound traffic, with parking spaces abutting each side of the driving lane. He said he was told the cars had not been moved, and sketched their locations as he said he found them. The Arrabal car was shown headed south in the southbound lane; the Levin car was shown headed west, astride the center line, and against the left front of the Arrabal car.

He indicated the place where Levin said he came from and said other cars were parked in some spaces in that area but he could not say how close. He could not say if there was any debris on the roadway. He said that according to his report it was raining. ⁹² Dr. Arrabal’s version of what occurred is shown by the following in his direct examination: “Q What happened to you as you were driving from north to south towards Gwynns Falls Parkway ? A I was approaching — I was driving approximately this point located on the diagram when I saw this car suddenly coming between parked cars, and hit my car with a terrific impact.” “A I suddenly saw him coming.

When I saw him I couldn’t do anything.” “A I asked Mr. Levin what were you doing; didn’t you see anything, and he said to me, I am sorry, I didn’t see you at all.” and in his cross-examination: “Q And when you got in the car, and got out on the parking lot, out from the parking space into this driveway, did you put your windshield wipers on ? A It wasn’t necessary. It was that light. It was drizzling light.” “Q When you first saw him, was he already in the driving lane, or was he still in a parking space ?

A He was coming in-between two parked cars getting into the driving lane. Q Was the front of his car in the driving lane when you first saw him? A Yes.” “Q Now when you first saw him in this driving lane — the front of the car in the driving lane, can you tell how far you were from his car? A I would say the length or the width of the ⁹³ driveway, which would be approximately three cars wide.” Mr. Levin said that he left Read’s lunch room and went to his car on the lot, and then gave this testimony: “It was raining very heavily, and I came out to my car, got in my car, started my car, let it warm up a little bit, proceeded north two lanes in front of me, which was two spaces in front, and no cars on the lefthand side of me.

There were some cars to the right, and were some cars parked further up on the parking lot. And as I proceeded to go forward — going north then to make a righthand turn into what I considered a designated in lane in the Mondawmin Shopping Center leading north from Gwynns Falls Parkway, when I started up — started proceeding in this lane, as I did, I saw a car coming toward me. It was about ten feet away when I saw it, put my brakes on, skidded, couldn’t stop, and we collided.” Levin also testified that he applied his brakes and skidded four or five feet. The following, from his cross-examination, presents part of Levin’s version of the collision: “Q So actually you were the striking vehicle, isn’t that correct ?

A Only because he was in the wrong lane, sir. Q Are you saying the officer where he placed Dr. Arrabal’s car is the wrong lane ? A Yes, sir. Q I see.

And you also say it was raining very hard? A Yes. THE COURT: Where was Dr. Arrabal’s car then when your cars came together ? A They remained the same as it was in the ⁹⁴ east lane, or the in lane as I consider it.

The in lane of that driveway. There are two lanes. It is divided by a yellow or white line. Of course it could not be visible at the time but there are two lanes I considered — well, all cars driving in the Mondawmin Shopping Center consider it the in lane and it is that way from Gwynns Falls Parkway into the shopping center.

The out lane is the west lane heading out of the shopping center. Q (Mr. Hirsch) Well, you say he was coming south in the east lane ? A That’s right. He was approximately almost to the other side of the lane when I saw him.

Of course, I realize now, but I didn’t at the time, but it would be hard for me to see him coming, because of the Big Valu Store on that side. He was close to that side.” “THE COURT: How far did you go before you started to make your righthand turn ? A About twenty feet. THE COURT: Did you drive in the slot, or was there a car which would be parked in front ?

A No. There was no car in front of me at all.” “MR. SWERDLOFF: And what, if anything, was to your left when you looked ? A There weren’t any cars to my left — directly to my left.” “MR. HIRSCH: Did you look to your right?

A Of course, when I got to my lane. MR. HIRSCH: When you looked to your right did you see the car coming down ? A Of course not.

I couldn’t see until it was close to me. It was on the inside lane — was in the lane that I was going to take.” ⁹⁵ “THE COURT: How far to your right could you see? A I could see the end of the food market. THE COURT: The Big Valu shown there?

A That’s right. MR. SWERDLOFF: Mr. Levin, you say that when you saw Dr. Arrabal’s vehicle ten or twelve feet from you, which way were you looking? A To the right.

MR. SWERDLOFF: Was that the first time, or second time, or third time you looked to your right? A The second time.” “MR. SWERDLOFF: How fast were you traveling?” “A I would say — I don’t know.

I’m not an expert at speeds. I would say fifteen — twenty miles an hour.” There was evidence admitted without objection or by stipulation that the repair of the Arrabal car cost $347.-65, that he paid $100.01 for car rental, and that treatment and x-rays at the emergency room of Mercy Hospital cost him $60.00. At the close of all the evidence, and after the jury was excused, plaintiff submitted a written motion entitled “Motion for Directed Verdict” in which he asked the court to “grant him a directed verdict as to the issues of the defendant’s liability and the plaintiff’s absence of contributory negligence”. Argument then took place on plaintiff’s motion and Judge Jones, after summarizing her reasons, ruled: “So I am going to grant the verdict on liability, and submit the case to the jury on the issue of damages”.

I Applying the applicable rule as expressed in Buchanan ⁹⁶ v. Galliher, 11 Md. App. 83 , A. 2d , (1970), and measuring the conduct of the parties solely by the standard of ordinary care under all the surrounding circumstances, the evidence in this case raised issues of both primary negligence and contributory negligence which required that they be weighed and determined by the jury, and not as a matter of law by the court. In Atran v. Furness, 251 Md. 216, 222-24 , 246 A. 2d 767 (1968) the Court of Appeals pointed out that Code (1967 Repl. Vol.), Art. 66½, § 231, did not govern right of way at an intersection of roadways in