Newman v. Stocker

Bond, C. J., delivered the opinion of the Court. The appellee has recovered, a judgment for damages from injuries alleged to have been sustained while she was riding as a guest in the appellant’s automobile, driven by him, and on the appeal it is contended that there was error in rulings on evidence and on prayers for instructions. On August 23rd, 1930, early in the evening, the plaintiff and her husband, and the defendant and his wife, after having dined together in Baltimore, drove together in Newman’s automobile toward Perry Point, where the Newmans lived. There ivas evidence that Newman maintained a high rate of speed as lie drove, too high, in the opinion of the plaintiff’s husband, and such that the husband was moved to suggest that it be reduced; but none of the witnesses say that the speed was above the- legal limit, or that it caused the accident ⁵⁵⁴ in which the plaintiff was injured.

In the brief filed for the plaintiff, or appellee, negligence in driving at an excessive rate of speed is, indeed, disclaimed. As the automobile neared Aberdeen, at about dusk, when automobile lamps were lighted, Newman, according to the evidence, glanced around toward his wife, who- was sitting in the rear of the plaintiff, to speak of the smooth driving of the car over a stretch of rough road, and as he turned, ox shortly after he turned, to face forward, his ear was swerved to the side of the road so that his wheels dropped-into soft earth, the car seemed to increase its speed suddenly, and it collided with a telephone pole-, causing the plaintiff’s injury. The defendant testified that he kept his head to the front as he looked around to speak to his wife, and that at about the time he looked around and forward, he saw an-automobile only thirty feet ahead, in a line of automobiles coming toward him on the other side of the road, turn its lights out of the line and toward the defendant on his side, as if starting out to- pass automobiles in the line ahead of it, and that, faced with what appeared to be a sudden danger of collision, he swerved quickly to- avoid it, dropped off the hard surface, and ran with accelerated speed into the pole. The acceleration of his speed, he thought, must have been due to his putting his foot on his accelerator instead of on his brake, in his hurry.

The plaintiff’s witnesses stated that they did not notice the threat from the car1 coming toward them, or did not see what caused the defendant to- swerve. In argument, it was contended for the plaintiff that the cause- of the swerving and dropping into soft earth was the defendant’s turning to- speak to his wife. This, however, is not directly stated in the testimony, and the cause was left to more or less plausible conjecture except for the defendant’s explanation. Eor the defendant, it was prayed that a verdict might be directed in his favor on the ground that the evidence was legally insufficient to prove any negligence on his part in meeting the- emergency he described, and on the ground that the plaintiff was herself guilty of negligence1 which eontrib ⁵⁵⁵ nted to tlie accident.

Blit as to tlie first ground, it seems sufficient to point out that tlie existence of the emergency was not admitted, and therefore could be established only by a finding of the jury. And if the jury should find the emergency to have caused the swerving from the hard surface of the road, they might still, we think, conclude that the subsequent acceleration of the speed of the car, to which the defendant testified, was a mistake1 which a driver exercising due care would not have made, and was the cause of the collision with the pole. And in the sudden occurrence which the witnesses agree in describing, there was m> opportunity for the plaintiff to be guilty of contributory negligence. Montgomery Bus Lines v. Diehl, 158 Md. 233, 238 , 148 A. 453 .

We concur therefore in the refusal of the defendant’s prayers for direction of a verdict in his favor. There are eight exceptions to rulings on the admission of evidence. The first three were to defendant’s questions to the plaintiff on cross-examination, on the allegation that the accident had occurred while the defendant was driving in a reckless, careless, and negligent manner. After she had stated that the automobile was being driven at a pretty good rate of speed, and that she did not notice any particular change of speed, she was asked specifically whether in other words she: would say that the car was driven in a reckless manner, or as one usually drives along a highway or country road; and the three questions on these tests of driving were all excluded.

And then, in answering a question, “In what way,” the car was driven, she said it was driven at a pretty good rate of speed, but she could not say it was reckless, because she did not think it was; and this estimate of the speed was, upon objection of the plaintiff’s counsel, stricken out, and a fourth exception was taken to that action. The argument for the exclusion is that in all this testimony only impressions, without facts, were sought. But while that may be a just criticism of the mere statement that tlie driving was or was not reckless, it would seem to be inapplicable to testimony that tlie driving was at a speed at which one usually drives along a highway or a country road. The