Lumber Terminals, Inc. v. Nowakowski

Lowe, J., delivered the opinion of the Court. Chagrined by nearly every ruling made during its negligence trial in the Superior Court of Baltimore City, appellant Lumber Terminals, Incorporated brings us 5 issues with 17 subsidiary questions which it argues are errors sufficient to warrant reversal of the $865,000 judgment against it. Some of these issues relate to the sufficiency of the evidence, and we shall dispose of them summarily by reference to the facts cast in the light most favorable to appellees. Viewed thus, the evidence is sufficient to justify the finding that appellant was negligent, and insufficient for us to conclude that appellant's assignments of error with regard to liability and ⁸⁴ instructions to the jury have merit.

We base our prerogative in so reviewing these contentions upon the standard for determining a directed verdict, the denial of which is the procedural conveyance for appellant's appeal on the sufficiency issues: “Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. Kantor v. Ash, 215 Md. 285 . Cf.

Suman v. Hoffman, 221 Md. 302 . And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534 .

Cf. Bernardi v. Roedel, 225 Md. 17, 21.” Fowler v. Smith, 240 Md. 240, 246 . LIABILITY Edward Alphonse. Nowakowski was a stevedore employed as a “slinger” on a pier, helping to unload lumber from a vessel adjacently berthed.

The lumber, bound in bundles, was hoisted out of the ship by a crane from which,hung cables parted by an attached spreader. The cables were looped and rehooked to form a double sling. The bundles were deposited upon chocks on the ground. The cables were then slackened so Nowakowski and his partner could slide them from under the bundles.

The workers would then walk to the opposite side of the lumber and the crane operator would return his slings for another load. A stilt-like ⁸⁵ conveyance called a “ross carrier”, reminiscent of a long-legged beetle, would then come forward, hover over the lumber, pick it up with blades attached to its undercarriage, and carry it to a storage area located a block away on the pier. The accident occurred when the cables slackened and about 20 pieces of lumber fell from a bundle. When this happened Nowakowski and partner, following the usual procedure, unhooked each of the cables on the spreader to permit the operator to pull the cables free from the fallen lumber.

When free, Nowakowski and partner returned from opposite sides of the draft whence they had repaired awaiting the cable withdrawal, and when the operator relowered the hook, replaced the cables. Nowakowski then walked between the lumber and the waiting carrier to repile the fallen pieces without which the carrier could not have picked up the bundles. This broken bundle procedure occurred about three times a day, and, as was customary, no signals were given to the carrier operator (who was perched high above the carrier) not to approach the bundle. This was presumably not necessary because, as the operator testified, he could see everything around the area where the men were working when he returned from the storage area.

Within 30 feet of the bundles he could see everything clearly, and his vision in the area remained clear, but, within 20 feet, his vision to the right became obscured. In spite of that blocked view, on this occasion the operator had stopped his carrier only 20 feet away from the lumber piles where he sat for a couple of minutes. Then, while Nowakowski was bent over the lumber picking up the fallen pieces, the operator moved the carrier forward. Nowakowski, who was unaware of its forward movement, continued his efforts until the carrier was above him, and his right foot was crushed as the carrier’s wheel first ran over it, then backed over it again.

We ñmñ that evidence sufficient to justify a jury’s finding (á o» tine part of th® earner's operator. ⁸⁶ Contributory Negligence and Assumption of Risk Our review of the record fails to disclose evidence sufficient to have compelled a finding of contributory negligence or assumption of risk as a matter of law, and no evidence sufficient to require an instruction thereon, although the trial judge did instruct the jury on contributory negligence. We see nothing in the testimony to indicate that Nowakowski was, as a matter of law, guilty of contributory-negligence or its counterpart, assumption of risk. Clayborne v. Mueller, 266 Md. 30, 38 . Nowakowski was not compelled to anticipate negligent acts by others, and in the absence of some prominent and decisive act contributing to the accident which could leave no room for a difference of opinion, appellant was not entitled to a directed verdict as a matter of law.

Clayborne v. Mueller, supra, 266 Md. at 35-36 ; see Menish v. Polinger Company, 277 Md. 553, 563 . Nor do we find sufficient evidence that Nowakowski voluntarily exposed himself to any danger that was not ordinarily manifest in his job from day to day. One cannot assume a danger of which he is unaware. See Menish v. Polinger Company, supra, 277 Md. at 561 .

The evidence, taken most favorably to Nowakowski, shows that he was not aware, and had no reason to be aware, of the approaching danger. Adequacy of Instructions Appellant’s contentions relative to inadequate instructions are equally without merit. There is no responsibility upon a trial judge to marshall the facts from either parties’ view although he may sum up the evidence if he chooses. Md. Rule 554.b.

Nor is there evidence in this case of any special duties or standards of care beyond those generally applicable in negligence cases, as instructed by the judge below. The judge need not negate every inapplicable theory, and should not when there is no supportive evidence to justify negative instructions {e,g., inapplicability of “rules of the road”); and he need not expound precisely that language requested if the appropriate and applicable law is ⁸⁷ fairly covered in his charge. Md. Rule 554.b.l. We find that to have been true in this case.

There was no error in instructing on the liability aspects of the case. Disability Concluding the sufficiency issues, we note our disagreement with appellant that there was insufficient evidence in the record from which the jury could have concluded that Nowakowski was permanently and totally disabled. Since two doctors testified that they did not believe Nowakowski would ever return to work as a stevedore, and a rehabilitation officer testified that Nowakowski was not sufficiently endowed with attributes to be retrained, considering his age and medical limitations, we are not certain upon what appellant's contention is based. The testimony was relevant and could property be considered by the jury in assessing the extent of the alleged disability.

Richard F. Kline, Inc. v. Grosh, 245 Md. 236 . We are of the opinion that there was sufficient evidence of the permanence of Nowakowski's injuries and of their extent to warrant their submission to the jury. See Ihrie v. Anthony, 205 Md. 296 ; Byrum v. Maryott, 26 Md. App. 130 . DAMAGES Appellant raises more novel questions in the area of damages.

Some of them, 1 relating to the testimony of an ⁸⁸ economist, pose issues heretofore unsettled, or at least unarticulated in Maryland. ⁸⁹ Appellant contends it was error to permit the economist to testify because: (1) “his values would . . . not be reduced to ‘present value’ (2) “his figures would include estimates ... and projections for inflation, wage increases, price increases and other speculative and inflammatory factors”; (3) “his calculations were made on the basis of gross rather than net wages claimed lost to the date of trial despite the fact that appropriate tax deductions to net wages were easily ascertainable”. Reduction to Present Value In personal injury cases courts generally, and Maryland particularly, consider among other losses, lost wages and earnings suffered by the injured person not only from the time of injury to the trial, but those reasonably certain to occur in the future. Brooks v. Fairman, 253 Md. 471 . For purposes of judicial simplicity, these awards are generally computed to a bottom line lump sum award.

Scott v. James Gibbons Co., 192 Md. 319, 331 . As a result of this practice, over half century ago the ⁹⁰ Supreme Court in reviewing a death claim under the Federal Employees Liability Act stated: “That where future payments are to be anticipated and capitalized in a verdict the plaintiff is entitled to no more than their present worth, is commonly recognized in the state courts.” Ches. & Ohio Ry. Co. v. Kelly, 241 U. S. 485, 493 . The Court reasoned that: “So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded.

It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future.” Id. at 489 . Maryland has recognized this principle in matters of breach of contract at least since the turn of the century, Sherley v. Sherley, 118 Md. 1, 26-27 ; and has recently proclaimed that failure to so instruct a jury — in a wrongful death case — is reversible error. Walston v. Sun Cab Co., 267 Md. 559 , affirming this Court’s opinion delivered by Judge Powers in Sun Cab Co. v. Walston, 115 Md. App. 113 . 2 But in personal injury cases we have not yet been blessed with the Walston lack of equivocation. What little light has been shed on the issue in such cases was provided by Hutzell v. Boyer, 252 Md. 227 , which held that: “ ... we do not think the lower court’s refusal to grant such an instruction, if error at all, was prejudicial error.” Id. at 237 .

Ironically the Court, which four years later said that “this Court has not ruled on the issue of present value in wrongful death cases”, 3 may have previously labored under the ⁹¹ misapprehension that it had, for it had said in Hutzell v. Boyer, supra: “However, reduction of damages to present value is not customary in Maryland, except in cases of wrongful death, as is evident from the decision of this Court in Adams v. Benson, 208 Md. 261 (1955).” 4 Hutzell v. Boyer, supra, 252 Md. at 237-238. Fully recognizing the Hutzell holding, appellant attacks its foundation by alleging that A dams v. Benson “does not at all stand for the proposition alleged”. Without quibbling over what the proposition was for which Adams was cited, it is perfectly clear that whatever its dicta meant, the holding of Hutzell was that it is not prejudicial error to refuse a requested instruction that the projected earning capacity of an impaired person should be reduced to present value. It obviously follows that testimony of present value is not required as a condition upon which an economist may project future wage loss.

The distinction made between wrongful death and personal injury cases (requiring an instruction in the former but not the latter, that, “as a matter of law” the jury must reduce the pecuniary benefit, which the wife and children of the deceased might reasonably have expected to receive from him if he had not been killed, to its present value, Walston, supra, 267 Md. at 571 ) can not be logically based upon the restricted damages allowed in wrongful death cases, and has no sound basis in principle. The “pecuniary loss rule” in force at the time of the wrongful death in Walston, supra, (1967) 5 limited the equitable plaintiffs to the value of their ⁹² pecuniary interest in the life of the person killed. This included only pecuniary losses already sustained by them and which they may suffer in the future as a result of the death. See generally Jennings v. United States, 178 F. Supp. 516 .

Future earnings, without regard to what the plaintiffs would have received from the deceased, were not recoverable, Smith v. Potomac Ed. Co., 165 F. Supp. 681 ; see Reisterstown Tnpk. v. State, 71 Md. 573, 582-583 ; and no award was permitted for grief or sufferings of the relations of the deceased, Balto. Trans. Co. v. Castranda, 194 Md. 421, 436 , or for grief and mental suffering of the deceased before his death, State v. Wooleyhan Transport Co., 192 Md. 686, 693 . Seldom has the rule been invoked as to an injured person, even if he is permanently injured; however, it is difficult to justify the distinction but for its more difficult application in personal injury cases.

As indicated above, the injured party is entitled to prospective wages lost by reason of the accident, see Adams v. Benson, supra, and damages for less discernible intangibles, such as pain and suffering. Gent v. Cole, 38 Md. 110, 114-115 ; Stockton v. Frey, 4 Gill 406, 420 . In short, the measure of damages, broadly stated, is the amount which will compensate an injured person for all losses h,e has sustained by reason of the injury. See Rhone v. Fisher, 224 Md. 223, 225; B. & O. R. R. Co. v. Blocher, 27 Md. 277 .

This description comprehends for jury consideration such evasive factors as the claimant’s state of health before and after the injury, the permanency of the injury and the degree of disability in relation to his pursuits. See, e.g., McMahon v. N.C.R.R. Co., 39 Md. 438 ; Bannon v. B. & O. R.R. Co., 24 Md. 108. We hasten to add, however, that evidence of the present value, of future lost earnings is not improper per se, and when offered, may be a valid consideration by the jury. It may come in directly through a defendant’s expert or upon cross-examination of a plaintiffs expert; and indeed may even be introduced by a plaintiff bending every effort at fair play. ⁹³ While the likelihood of the latter is perhaps not great, we mention it because it arose in that manner in the case at bar.

The expert testified from a placard of figures prepared for the trial. On the side exposed to the jury were projections of wage loss which included an inflationary factor. On the back, available but never exposed either directly or through questions by the defendant, were the same projections reduced to present value. Appellees’ counsel explained that his reluctance to offer these rested upon the equivocal state of the law as he read it in Hutzell, supra. 6 His reluctance was as understandable as his anticipatory preparation was commendable.

Appellant can hardly complain that the reduced figures were not before the jury. They were there for the asking. The Inflationary Factor Appellant reversed his procedure of inquiry to us on this issue. Instead of asking whether such testimony is a prerequisite for an economist to testify as it did with present value, appellant asks if it is a permissible subject for a testifying economist.

As with present value, we will restrict our response to the question asked. In Walston, supra, 267 Md. at 573 , speaking of present value in wrongful death cases, the Court of Appeals commented that: “Although some courts do not reduce damages to present value in an attempt to offset inflation and ⁹⁴