Nizer v. Phelps

Barnes, J., delivered the opinion of the Court. Raymond G. Nizer, a bus operator, and his employer, The Baltimore Transit Company (Nizer and Baltimore Transit), defendants below, appealed from a judgment for $115,000 in favor of the appellees, Francis H. Phelps, Jr. and Charles E. Phelps, Committee for Marion F. Phelps, Incompetent (Mrs. Phelps), plaintiffs below, against the defendants upon the verdict of a jury in the Circuit Court for Baltimore County (Proctor, J.) for damages for serious injuries sustained by Mrs. Phelps when she was struck by a shuttle bus of Baltimore Transit at Howard and Preston Streets, Baltimore, Maryland on June 16, 1966. On the day of the accident, Mrs. Phelps, then 82 years of age, left her home in Baltimore at 135 West Lanvale Street to go downtown to Hutzler’s Department Store located on the west side of Howard Street at Saratoga Street. It was her habit to walk down Howard Street practically every day to have lunch at Hutzler’s.

Howard Street runs north and south at Preston. It is a two-way street with a painted double line in the center. It is 54 feet wide with three lanes each for northbound and southbound traffic, each lane separated by broken lines. Preston Street runs east and west.

It is a one-way street going west with a broken painted line in the center. Preston Street, at its intersection with the west side of Howard Street, is 60 feet wide from curb to curb through the center of the crosswalk and then narrows to a distance of approximately 39 feet. Preston Street is crowned in the center and slopes from the center to the north and south side of the street, respectively. There is a slight downgrade to the east.

The marked pedestrians’ crosswalk of Preston Street from the northwest corner to the southwest corner of the intersection is 14 feet wide at the north and somewhat wider at the south end. On the northwest corner of Howard and Preston Streets is ¹⁸⁸ the Fifth Regiment Armory, the steps of which protrude on to the sidewalk in such a way that a person walking south on the west sidewalk of Howard Street would walk right into the crosswalk. As Mrs. Phelps was walking across Preston Street on June 16, 1966 at about 12:05 p.m. she was struck and seriously injured by a Baltimore Transit shuttle bus operated by Nizer. Traffic at the crossing was not controlled by either a traffic control device or by a traffic officer.

The bus was northbound on Howard Street and was making a left turn across southbound traffic to go west on Preston Street. Traffic in the three southbound lanes on Howard Street was heavy and most of the traffic in the westernmost southbound lane was turning right to go west on Preston Street. The weather was clear and the streets were dry. Mrs. Phelps, at the time of trial, was confined to a nursing home.

She was totally disabled and mentally incompetent as a direct result of her injuries and will require nursing home care for the rest of her life. Because of her mental condition she was not able to testify. Police Officer Robert J. Rogers, however, reached the scene of the accident shortly after it occurred and before the ambulance arrived. Officer Rogers was qualified by training and experience in the investigation of accidents, having been assigned to the Accident Investigation Division of the Baltimore City Police Department for 14 years and having handled between 35 and 50 accidents in traffic court per month.

During his 14 years with the Accident Investigation Division he had handled between 5000 and 8000 accident cases. He had attended the police academy, was trained in the investigation of accidents by his superior officers, at the time of trial he was himself training new men, and had read and studied various pamphlets and books on the subject of investigation of accidents. He had testified in both the Federal and State courts concerning points of impact and how they are established. After having been cross-examined in regard to his qualifications to give expert testimony on the point of impact, his testimony as an expert was permitted by the trial court.

Nizer testified that the bus had not been moved when Officer Rogers arrived at the scene of the accident. Officer Rogers im ¹⁸⁹ mediately began his investigation. He ascertained and marked the location of the physical evidence with yellow chalk to preserve its location, took photographs and talked to Nizer. The chalk marks do not appear on the photographs but Officer Rogers testified that this may have been because yellow chalk marks on an asphalt surface often do not show up in black and white photographs.

Officer Rogers’ testimony in regard to the physical evidence at the scene of the accident was recorded on his diagram (plaintiffs’ Exhibit No. 5), and was shown on a plat (plaintiffs’ Exhibit No. 4) and on two photographs (plaintiffs’ Exhibits Nos. 1 and 2). Officer Rogers’ testimony and the exhibits mentioned indicate that immediately after the accident, the bus was south of the center of Preston Street. Its front was in the crosswalk about in the center of Preston Street headed on an angle in a northwesterly direction. Its position was such as to indicate that it “cut the corner” in making the left turn.

Both front wheels were in the marked pedestrians’ walkway, the left front wheel being close to the western line of the crosswalk, the right front wheel farther east from that western line. There was flesh in the blood trail that was on the street and there was flesh and blood on the left front wheel of the bus. Indeed, plaintiffs’ Exhibit No. 1, the photograph showing the front of the bus, the location of its front wheels and showing the blood trail, indicates that the left front wheel was in part of the trail of blood. The blood was thick and heavy and, as indicated, had flesh in it.

The blood trail was 11 feet overall. It began nine feet from the easternmost line of the crosswalk, and extended to the larger blood spot where Mrs. Phelps was lying. Mrs. Phelps was lying in front of the bus just south of the center of Preston Street. Her head was two feet west of the west line of the crosswalk and her feet were six feet west of it in a blood spot.

Her left leg was broken open, the flesh was torn loose and there was blood at the back of her head. Nizer testified that her leg was near the left front wheel of the bus and suggested that this wheel could have pinched her leg. Nizer was called as an adverse witness by the plaintiffs. He was the only eyewitness to the accident that testified at the trial of the case.

As will be later observed, his testimony at the ¹⁹⁰ trial was in conflict with his deposition testimony and with certain statements which Officer Rogers testified Nizer had made to him at the scene of the accident. At the' trial, Nizer testified that he was northbound on Howard Street and was making a left turn to go west on Preston Street. When he saw Mrs. Phelps standing on the north sidewalk of Preston Street about ten feet west of the west line of the marked crosswalk, he glanced to his left and then to his right and saw her come from between a car or cab that was southbound on Howard Street making a right turn into Preston Street. Nizer said he was watching the automobiles as he was making his turn; that he saw Mrs. Phelps standing on the sidewalk and did not see her again until she was almost in the path of his bus.

When he saw her the second time, she was almost in the center of Preston Street about two or three feet in front of him. He said that he was going approximately five miles an hour and that the first time he saw Mrs. Phelps with her hand up, was when he hit her. He stated that he “hit the brakes” when Mrs. Phelps came in front of him; that she was three to five feet west of the crosswalk when lje struck her; and that he went a few feet farther before stopping, but that he could not say whether or not he had dragged Mrs. Phelps. Nizer admitted at the trial that he had stated under oath in his deposition three times that Mrs. Phelps was in the crosswalk when he saw her.

He also admitted in his deposition that he could not swear that he ever saw Mrs. Phelps before he saw her in front of the bus with her hand up. When he was questioned in regard to the conflict in his testimony at the trial and his testimony when his deposition was taken, Nizer (referring to his testimony on his deposition) stated that it was not exactly the truth and “I guess it is false as I saw her standing on the sidewalk before I made the turn.” Nizer admitted that he never told Officer Rogers that he saw Mrs. Phelps standing on the north side of Preston Street, nor did he say anything in his Answers to Interrogatories in regard to seeing her on the north side of Preston Street, ten feet west of the crosswalk. He further admitted that he had given Baltimore Transit three statements in regard to the accident and that in the first two statements he had said nothing ¹⁹¹ about seeing Mrs. Phelps on the sidewalk. It was not until approximately one month prior to trial, that Nizer decided that he had seen Mrs. Phelps standing on the north sidewalk of Preston Street and gave Baltimore Transit a statement to that effect.

The medical testimony in regard to Mrs. Phelps’ physical injuries indicated that she had suffered a fracture of the left maxilla (the cheek bone), an injury to her left eye, a fracture to her right ankle and a compound fracture of the terminal phalanges of the second and third toe, with a questionable fracture of the second metatarsal bone on the right leg and a severe laceration of the lower left leg. The hanging skin was sewed back to the other skin of the lower left leg. Because of the loss of blood supply two toes and the sutured tissue became gangrenous and were required to be amputated. The skin removed from the lower left leg was replaced by skin grafts from Mrs. Phelps’ thigh.

She has only “a trace of her ankle” and will not be able to walk again. In addition, she suffered either a concussion or a subdural hematoma, and her mental condition is one of permanent confusion and disorientation. Nizer and Baltimore Transit made motions for a directed verdict at the end of the plaintiffs’ case and at the end of the entire case. After the verdict of the jury against them both, they made motions for judgments n.o.v., or in the alternative, for a new trial, which were overruled by the trial court.

From a judgment against them, entered on the verdict, the present appeal was timely taken. Additional facts will be stated when the various points raised on this appeal are later considered. Nizer and Baltimore Transit urge upon us that the trial court erred as follows: 1. In permitting Officer Rogers to express an expert opinion on the question of the point of impact (a) as he was not qualified as an expert witness, (b) no expert opinion on the subject was necessary as the jury was competent to draw its own inferences from the facts without the need for expert testimony, and (c) his opinion was not sufficiently supported by the alleged facts on which he relied. 2.

In characterizing Officer Rogers’ opinion as that of an expert in the trial court’s charge to the jury. ¹⁹² 3. In permitting the jury to “view” Mrs. Phelps at the nursing home. 4. In refusing to instruct the jury on their theory of the case. 5. In failing to direct a verdict in their favor because (a) there was no legally sufficient evidence of primary negligence to submit to the jury, and (b) the evidence showed that Mrs. Phelps was guilty of contributory negligence as a matter of law.

In our opinion the trial court committed no reversible error and the judgment will be affirmed. 1 (a) The appellants earnestly contend that the trial court erred in permitting Officer Rogers to express an opinion upon the point of impact as he was not qualified as an expert witness. We do not agree. It is well established that it is in the sound discretion of the trial court to determine whether or not a witness is competent to testify as an expert. The trial court’s determination in this regard will only be disturbed on appeal if there has been a clear showing of an abuse of its discretion.

Continental Insurance Co. v. Kouwenhoven, 242 Md. 115, 126-27 , 218 A. 2d 11, 17-18 (1966). In Acme Poultry Corp. v. Melville, 188 Md. 365 , 53 A. 2d 1 (1947)—a case involving an opinion by a State Police Officer that tires of the vehicles in question would leave marks if they were pushed sideways — Judge (later Chief Judge) Henderson for the Court, stated: “We also think that the State Police officer was sufficiently qualified to express an opinion that the tires of the vehicles would leave marks if they were pushed sideways. The investigation of motor vehicle accidents is one of the principal duties of the State Police. In any event, the determination of the qualifications of an expert must be left largely to the judgment of the trial court.

Bresnan v. Weaver, 151 Md. 375, 380 , 135 A. 584 .” ( 188 Md. at 373-74 , 53 A. 2d at 4-5 ) As we have already indicated, Officer Rogers had been as ¹⁹³ signed to the Accident Investigation Division of the Baltimore City Police Department for 14 years. A primary obligation of this Division is to investigate motor vehicle accidents. He had during his 14 years of service in the Division, investigated between 5000 and 8000 motor vehicle accidents. He had received training in investigation of motor vehicle accidents by his senior officers, had read books and pamphlets on the subject and, at the time of the trial, was himself instructing the newer men in the Division in regard to the investigation of such accidents.

He had been qualified and had testified as an expert witness in both the Federal and State courts in regard to the establishment of points of impact in motor vehicle cases. In view of these facts we perceive no abuse of discretion on the part of the trial court in permitting Officer Rogers to testify as an expert witness and to express an opinion in regard to the point of impact in the present case. 1 (b) The appellants contend, however, that even if Officer Rogers might qualify as an expert in some subjects, his expert opinion in regard to the point of impact in this case was not admissible as this was a question which the jury, itself, could decide upon the facts without the assistance of testimony based on special skill or study. The proposition is stated too broadly. The Maryland rule is not whether the jury could possibly decide the issue without expert help, but whether the expert testimony would be of appreciable help to the jury in resolving the issue.

Here again, the determination of whether or not the expert testimony will be of appreciable help to the jury is within the sound discretion of the trial court. See Shivers v. Carnaggio, 223 Md. 585 , 165 A. 2d 898 (1960) in which Judge (now Chief Judge) Hammond, for the Court, carefully reviews the authorities on this question. State v. Gray, 227 Md. 318, 176 A. 2d 867 (1962). See Andrews v. Andrews, 242 Md. 143 , 218 A. 2d 194 (1966).

In Gray, supra, the admissibility of the testimony of a State trooper as an expert in regard to the proper interpretation of skid and swerve marks and gouges in the road at the site of the accident and their significance as to where the impact took place was involved. In holding that the trial court did not abuse ¹⁹⁴ its discretion in admitting this,testimony, Judge Sybert, for the Court, stated: “Admission of such testimony was in the sound discretion of the trial court, Williams v. Dawidowicz, 209 Md. 77, 120 A. 2d 399 (1956), and we fail to find any abuse of that discretion in this case. The trooper, as investigating officer, qualified as an expert, Acme Poultry Corp. v. Melville, 188 Md. 365 , 53 A. 2d 1 (1947), and, as was said in Harper v. Higgs, 225 Md. 24, 38 , 169 A. 2d 661 (1961), '* * * an approved test as to the admissibility of expert opinion is whether the jury can receive appreciable help from the particular witness on the subject, not whether the jury can decide the particular issue without expert help. * * The interpretation of skid and swerve marks and gouges in the road at the site of the accident and their significance in regard to where the impact took place was a proper subject for expert testimony and the trial' court’s ruling in this respect was not erroneous. Cf.

Miller v. Graff, 196 Md. 609 , 78 A. 2d 220 (1951).” ( 227 Md. at 321-22 , 176 A. 2d at 868-69 .) (Emphasis supplied.) In our opinion, the trial court did not abuse its discretion in concluding that Officer Rogers’ expert testimony in regard to the point of impact would be of substantial assistance to the jury in determining this issue. Such evidence is especially helpful when a party is not competent to testify. See Scott v. James Gibbons Co., 192 Md. 319, 328-30 , 64 A. 2d 117, 122 (1949). See also Annotation, Admissibility of Opinion Evidence as to Point of Impact or Collision in Motor Vehicle Accident Case, 66 A.L.R.2d 1048 , 1052, 1053, 1056, 1058, 1960, 1065-67 (1959) ; 9C Blashfield, Automobile Law and Practice, Sec. 6316 (Supp. 1964). 1 (c) In their final challenge to Officer Rogers’ expert testimony,, the appellants argue that, in any event, his expert opinion in regard to the point of impact was not supported by the alleged facts upon which he relied in formulating his opinion, citing; ¹⁹⁵ our opinion in State v. Critzer, 230 Md. 286 , 186 A. 2d 586 (1962) in which we indicated that an expert witness must predicate his opinion on premises of facts which must disclose that the expert is sufficiently familiar with the subject matter under investigation in order “to elevate his opinion above the realm of conjecture and speculation.” The principle enunciated is, of course, a sound one, but in our opinion Officer Rogers’ premises of facts, in the context of his almost immediate presence at the scene of the accident, his observation of all the physical facts and his recording of them and the point of impact on his diagram (plaintiffs’ Exhibit No. 5), are sufficient to meet the test enunciated in State v. Critzer, supra.

The three premises of fact on which Officer Rogers based his opinion were (1) the position of the left shoe of Mrs. Phelps, (2) the blood which he found at the scene of the accident, and (3) the dirt found at the scene. The appellants point out that Officer Rogers admitted on cross-examination that it is possible that when people are struck to have their shoes fly off, that the blood ran in the same direction as the grade of Preston Street and that his examination of the bus was limited to looking for damage on its exterior surface and to examine the left front wheel. In our opinion these observations go to the weight of Officer Rogers’ testimony and not to its admissibility. The fact that the left shoe is shown on the photographs showing the front of the bus at the scene (plaintiffs’ Exhibit No. 1) at the beginning of the blood trail, while the other shoe is shown in front of the bus, together with the severe injuries to the left foot and leg of Mrs. Phelps reasonably indicates that the left wheel of the bus on which blood and flesh were found did pinch Mrs. Phelps’ left foot and leg (as Nizer suggested) and pushed Mrs. Phelps forward to where her body finally came to rest.

The presence of dirt at the same point is some evidence that it came from the bus at or near the point of impact. Officer Rogers had testified that he had observed from his experience in investigating accidents that “when two vehicles collide there is dirt, debris and disturbance. Where the contact is made, this dirt and debris drops to the street; that can vary from approximately two inches to approximately a foot and can be scattered further if the vehicles move away and ¹⁹⁶ carry it off with them.” The fact that the left wheel of the bus is standing in the blood trail indicates that the blood lying to the east of the left wheel, and in which there were tire marks, did not flow down from the larger pool of blood formed where Mrs. Phelps’ body ultimately came to rest, from which it could reasonably be inferred that the blood lying to the east of the left wheel began at the point of impact. These, and the surrounding facts appearing on the diagram, indicate to us Officer Rogers had sufficient premises of fact to support his expert testimony in regard to the location of the point of impact which he indicated on his diagram as being in the pedestrians’ crosswalk nine feet west of the eastern line of the crosswalk (the crosswalk has a total width of 14 feet at this point), and as we have indicated this opinion is supported by the photographs showing the front of the bus (plaintiffs’