Murphy v. Board of County Commissioners

⁵⁰⁰ Powers, J., delivered the opinion of the Court. The personal injury damage suit of Christina L. Murphy against the Board of County Commissioners for Prince George’s County, the Washington Suburban Sanitary Commission, and Eugene Passero and Edmund Parreco, trading as Central Construction Company, was tried before a jury and Judge Samuel W. H. Meloy in the Circuit Court for Prince George’s County on October 14, 15, 16 and 19, 1970. In the evening of October 19th the jury returned a verdict in favor of the defendants. After a motion for a new trial was filed, heard and denied, judgment was entered in favor of the defendants against the plaintiff for costs.

From that judgment Mrs. Murphy appealed. The Happening of the Accident Appellant testified that at about 9:30 P. M. on April 27, 1967, she was driving alone to visit a girl friend, and had turned onto Hagan Road in Prince George’s County, where she had an accident. She said, of Hagan Road, “It’s a small — it’s a narrow road, two cars can, you know, fit on it, but it’s a very narrow road. Sort of a country type road with shoulders that vary in size on both sides.” Asked to describe how the accident happened, she said, “I was on the right side, my side, but I always stayed towards the middle until I approached another car. * * * It’s a curvy road. * * * I just completed a small curve and I was on a straight stretch, small straight stretch, when I noticed the other car with its high beams approaching me. * * * When I saw this other car and his high beams were on, I had first dimmed my high beams, and I pulled slightly to the right and slowed down somewhat. * * * Then as the car passed me I slowed down a little bit more and pulled slightly more to the right, and this is when I heard the — I felt the thump and the noise, a loud noise, and I hit my head.

I recall a sensation of a bumping sensation, but — and the car ⁵⁰¹ darting forward, but this is hazy. * * * I was definitely on the right side, way over. You know, I was off the road. I was on the road, but — I was on my side. * * * I was on the road. I could have been slightly on the shoulder, but no more than that. * * * I could have been a couple inches on the shoulder, and I could have been very well on the shoulder part, but not too much. * * * I turned the car slightly to the right to be sure — his beams were so high — that I wouldn’t hit him.

I moved the car more to the right and took my foot off the accelerator to slow the car.” Her next recollection was when she woke up at the hospital. She had sustained severe injuries. Some time later, upon revisiting the scene, appellant testified, she observed that there was a culvert in front of 4919 Hagan Road. She said it was four feet from the road, and that she knew that she didn’t strike that culvert because she was never more than two or three inches at the very most off the road onto the shoulder.

She said that the speed limit there was 20 or 25, and her speed was 20 miles an hour; that she took her foot off the accelerator when she saw the approaching high beams, and took it off again when she pulled over to her right; and that she estimated she was going 10 or 12 miles an hour when she felt the big thump and loud noise. She never hit the brake. She said there was nothing the other car did that forced her to move over, except that the lights bothered her, and that he was on his side of the road. She felt the thump or jolt, but did not see anything there.

She wasn’t looking down at the shoulder. Officer Albert I. Alexander of the Prince George’s County Police testified that on the evening of April 27, 1967, he responded to a call of an accident in front of 4919 Hagan Road, a secondary road, 18 feet wide, two lanes, blacktop, no curbline. He saw a white ‘66 Ford that had struck a tree. There was a hole on the shoulder in front of 4919 Hagan Road.

The hole was three feet ten inches by two feet nine inches by one foot five inches ⁵⁰² deep. He saw a tire track going on the shoulder of the road toward the hole. Fifty-four feet beyond the hole was a pole, on which the officer found white paint, and at the base of which he found the right rear taillight frame from the Murphy car. The car was against a tree sixty-one feet beyond the pole.

He saw tire marks leading from the hole to the pole. Photographs, one or more of which showed the hole, were received in evidence. The officer said that the weather was cloudy but dry, and there was no illumination. He indicated on a diagram that the appellant’s vehicle left the macadam surface at the first driveway on the right that leads to the Mat-tingly property.

There was a pipe under the driveway and a small drainage area along the road there. The tire tracks he observed were from the drop-off at the corner of the driveway. Red flares were put up at the site by the police. There was other evidence that Central Construction Company had a job installing a sewer line on Hagan Road for the Washington Suburban Sanitary Commission.

There was also evidence that a utility permit inspector for the Prince George’s County Department of Public Works, riding on Hagan Road on the afternoon of April 26th, had “noticed a slight depression on the shoulder of the road”. He noted it in his diary, and notified his dispatcher. He said it did not necessitate a warning device or barricade at that time. The depression he saw was not located any more specifically than the 4900 block of Hagan Road.

Questions Involved in This Appeal Appellant’s brief poses the questions presented by this appeal to be whether the trial court erred: I in its rulings on the evidence, II in its instructions, III and in its failure to grant a new trial when matters were discovered subsequent to trial, which had a crucial bearing on the case. ⁵⁰³ I Rulings of the Court on Evidence A. Much of appellant’s argument on this aspect of the case goes to the weight to be given to some of the testimony, and to the burden of proof upon the appellees on the question of whether appellant was contributorily negligent. The weight which any evidence should be given, as well as the credibility to be accorded to the testimony of any witness, is for the jury. Aravanis v. Eisenberg, 237 Md. 242, 262 , 206 A. 2d 148 , Kowalewski v. Carter, 11 Md. App. 182, 192 , 273 A. 2d 212 . Likewise, it is for the jury, and solely for it, guided by proper instructions of the court, to conclude whether any party has carried whatever burden he may have to prove any fact at issue.

No doubt to emphasize the prejudicial effect she contends flowed from erroneous rulings by the court, appellant argues that counsel for the appellees made misleading and highly prejudicial references and arguments to matters “dignified by rulings” of the court. We shall consider separately each ruling alleged to have been erroneous. As to the general argument, we can say only that we have reviewed the entire transcript of testimony, proceedings and arguments, consisting of over 500 pages, and we find no request that the court admonish the jury to disregard any statement of counsel, and no motion for mistrial. Brinand v. Denzik, 226 Md. 287 , 173 A. 2d 203 , Baltimore & O. R. R. v. Plews, 262 Md. 442, 464 , 278 A. 2d 287 , Ferry v. Cicero, 12 Md. App. 502, 508-509 , 280 A. 2d 37 .

The court told the jury, “You are to consider only the evidence in the case. * * * The statements of counsel, opening statements, closing arguments, are not evidence, and should not be considered as evidence * * This general argument of appellant presents nothing to us for decision. B. Mrs. Grace M. Hare was called by appellant as a witness. She said that she lived across the street from where the accident happened. Prior to that time, she had ⁵⁰⁴ observed the road.

She said, “There were holes on the side of the road. * * * there was one that was quite big and came out a little bit further to the road.” When asked how long that hole had been there she said, “Well, truthfully I wouldn’t — couldn’t say. It was wide.” Then followed a long series of questions by appellant’s counsel designed to have the witness state a length of time that the hole was there. Each question was objected to, and each objection was sustained. Finally the court observed, “The lady has testified that she doesn’t know how long the hole was there.

Under the circumstances I think further exploration would be redundant.” She never associated the hole that was “quite big” with the accident. Appellant argues that the court erred in these “restricted rulings”. We see no error. C. Appellant complains that Lawrence Pauley, called by her, was not permitted to testify as an expert.

He said he had been in the sewer and water construction business for 25 years, the estimating and the office work, mainly. He had had his own crews doing this work, but had not supervised them on the job itself. He said he was familiar with the type of conditions that occur in this work. Appellant submitted his qualifications “as an expert”.

There was objection, because of no showing of “what he is supposed to be an expert as”. The court sustained the objection. No further qualifications were proffered, nor was there any proffer of what the witness would say if permitted to testify. On the question of whether a witness should be permitted to testify as an expert, the Court of Appeals, in Spence v. Wiles, 255 Md. 98 , 257 A. 2d 164 , said, at pages 102 and 103: “The rule is that before a witness is permitted to offer an expert opinion, it must be shown that he possesses both the necessary qualifications and also the factual information necessary to form such an opinion. * * * The qualifications of a proposed expert witness are a matter for the trial court to pass upon in the first instance, ⁵⁰⁵ and unless such ruling is clearly erroneous or a clear abuse of discretion it will not be reversed on appeal.” See also Nizer v. Phelps, 252 Md. 185 , 249 A. 2d 112 .

We cannot say that the judge was in error, on the evidence before him, in ruling that Pauley was not qualified to express an expert opinion. D. The final contention of appellant that the court erred in ruling on evidence is directed to the instruction to the jury to disregard the testimony of the witness Bottalico that lights or flares were placed beside the hole on the night of the accident. The witness said that at about 2:00 A.M. on the way home from the hospital he observed a truck putting out two light pots showing where the hole was. After granting a motion to strike, the court instructed the jury to disregard the answer to the question.

Appellant acknowledges the rule against showing a subsequent precaution or repair as an admission of negligence, but says the evidence was admissible to negate any inference that tire tracks observed the next morning were the tracks of some other vehicle, and to show that tire tracks at the hole were made by appellant, because the lights protected the area against the intrusion of other vehicles. This argument ignores the interval of four and one half hours between the accident and the placing of the lights. Officer Alexander testified to the tracks he observed at the scene that night. At least two other witnesses besides Bottalico testified that lights were placed that night.

We are not persuaded that this ruling was error, but if so, it was harmless. II Error in the Court’s Instructions Appellant’s brief argues error in the instructions with respect to the degree of care required on the part of the governing agency and in not informing the jury of the dismissal of the crossclaims among the defendants. The- ⁵⁰⁶ brief also argues that the evidence, or lack of evidence, of contributory negligence, did not warrant a finding of contributory negligence. A. After instructions had been given to the jury, and after an exception relating to damages, appellant’s counsel said, “The other would be an instruction that I had submitted to you, I believe it was Number Four, which included two points, the County having a higher degree of care than an ordinary traveler, and also the legal proposition if a hole is there for a length of time, there can be a presumption arising from the existence of the hole”.

If the exception presents two separate principles of law, neither one, technically, is properly before us for review. Whatever was requested was not set out in words, but was referred to by a number, and no grounds were stated. The Court of Appeals held in Jones v. Federal Paper Bd. Co., 252 Md. 475 , 250 A. 2d 653 , that the requirements of Maryland Rule 554 were not met when: “* * * the plaintiffs failed to state the grounds of objection at the conclusion of the trial court’s charge to the jury and merely made reference to the number of the requests for instructions they thought should be granted.” At page 490.

A contention that the County has a higher degree of care than an ordinary traveler seems meaningless, under the