People's Drug Stores, Inc. v. Windham

Offutt, J., delivered the opinion of the Court. The Rockville Pike is a three-lane state road connecting Rockville, Maryland, and the City of Washington. At Corby’s Hill, about three miles north of Bethesda and about ten miles from Washington, the travelled surface of the road is about thirty feet wide, a twenty-two foot macadam center bordered on each side by a four foot concrete shoulder. Going south from Corby’s entrance at the top of the hill the road slopes down for eight hundred feet at a 5% grade, from that point south for three hundred and seventy-five feet at a 2% grade, then for three hundred and twenty-five feet at a 3.3% grade and finally for three hundred feet at a 5% grade.

About eleven hundred and thirty-five feet from the top of the hill the road curves to the south and west, and on the west or inside of that curve there is a guard rail. On the side of the road, about one thousand feet south of the top of the hill, there is a route sign bearing the legend “U. S. 240.” At about two thirty o’clock in the afternoon of June 1st, 1938, Harry C. Wayland was driving a Plymouth automobile south on that road. When he reached the top ¹⁷⁷ of Corby’s Hill he saw a cloud of smoke which came from a pile of hay burning in a field on the west side of the road, blowing across the road about a quarter of a mile ahead of him. When he reached the smoke he found that it was quite dense and screened the road in front of him.

He reduced his speed, drove carefully and slowly through the smoke screen, which was about fifty feet wide, and as he was proceeding, a Chevrolet car driven by a Mr. Willey, also proceeding south through the smoke, bumped into Wayland’s car, doing some slight damage. Wayland drove beyond the smoke, parked his automobile, and went back to learn whether Willey needed help. He found the right front fender of the Chevrolet bent down on the wheel, and binding it so that the wheel would not turn freely. The Chevrolet was then standing with its right wheels on the dirt road at the right or west of the concrete shoulder.

While those two cars were in that position, Mowatt Windham, driving north from Washington, also approached the smoke screen, and saw the two standing cars. He drove carefully beyond the smoke, parked his car, and came back to see whether he could be of help. He found Willey trying to start the Chevrolet, and he then went to the front of the car and tried to lift the right front fender from the wheel. While he was in that position, Frederick W. Sherman, driving a tractor and trailer truck owned by the People’s Drug Stores, Inc., going south, went through the smoke, struck the Chevrolet car, went on and struck the Plymouth car, and then went through a gap in the guardrail about three hundred feet into a field west of the road.

When the truck struck the Chevrolet the impact threw Willey from the car, and threw Windham over the fence and into the field. As a result of the collision Windham suffered severe, permanent, and disabling injuries. Later he brought this action against the People’s Drug Stores, Inc., to recover compensation for his injuries on the theory that they had been caused by the negligence of defendant’s servant and agent, Frederick W. Sherman. ¹⁷⁸ The trial resulted in a verdict and judgment for the plaintiff and this appeal is from that judgment. The record submits three exceptions; two relate to rulings on the evidence and one to the rulings on the prayers.

Following are facts which, in addition to those stated, the jury could have found from the evidence: The length of defendant’s combined tractor and trailer truck was about twenty seven feet, it was eleven feet and three inches high, the cab about five feet wide, and the complete vehicle weighed 17,270 pounds empty, and at the time of the accident it was driven at a speed estimated at from twenty to sixty miles an hour. When it struck the Chevrolet, the impact threw Windham about as high as the telegraph wire, drove the Chevrolet about thirty feet forward, and when it struck the Plymouth it drove it down the road and rolled it over and over. At the time of the accident a gentle west wind drove the smoke from the burning hay east across the road, forming a smoke screen said to have been about fifty feet wide and forty or fifty feet high, varying in density and opacity, and irregular in outline. It was possible for one approaching the smoke from the north, by looking along the chord of the curve, to see cars south of it.

The noise of the collision between the Chevrolet car and the Plymouth attracted the attention of Franklin E. Rothwell and Robert E. Rothwell, father and son, who were doing masonry work on the Corby property nearby, and they at once ran to the scene of the accident. As they reached the route sign, they heard the truck coming and to quote the elder Rothwell: “I raised my hands. I was in white overalls which is conspicuous to any driver on the road. I waved my hands to try to slow him down.

My son grabbed me and said ‘Look out, the damn fool will run over you.’ The truck came right along on the shoulder, just skipped me, I believe if my son hadn’t pulled me I would have got hit. I could look right across the smoke as there is a bend in the road, and I could see the tops of like two cars, and just no more than ¹⁷⁹ you could turn around I heard this crash and saw parts of a lot of things go in the air and I saw the man go up close to the top of this wire I described on this telephone pole. It must have been a telephone cable. The man went up near that, in the air.

My son and I, we ran down there, and as we got there I saw these cars demolished. One car had turned over.” The hay, he said, was in Mrs. Corby’s field, some of the bales had been “split open, and some that had not been split open were laid in there, and all those were burned up.” The Rothwells first saw the truck “almost at the top of Corby’s Hill,” and it was continuously in their sight from that time until it disappeared in the smoke. The elder Rothwell had driven an automobile since nineteen sixteen, and made several experiments in “judging speeding.” The younger Rothwell had driven automobiles for about five years and had often driven trucks. They were each asked to estimate the speed of the truck.

The elder Rothwell said that it was proceeding at between fifty and sixty miles and hour, the younger Rothwell placed its speed at “at least fifty miles an hour.” Objections to those questions were overruled and those rulings are the subject of the first and second exceptions. The questions were inartificial, in that they did not direct the witnesses’ attention to the speed of the truck when it disappeared in the smoke, but that defect was unimportant, since it appeared from their testimony that as they observed it the speed of the truck 'was uniform during the time it was in their sight. Any sensory estimate of the speed of a moving object must be based upon experience, observation, and judgment, is necessarily approximate and empirical, its accuracy is rarely susceptible of complete demonstration, and its value must be measured by its consistency with known physical laws. It is but a mental impression formed instantly from the observation of conditions which may not be exactly reproduced and which ordinarily disappear instantly.

The formation of such an opinion does not necessarily require special study, training, or ¹⁸⁰ skill, and if it relates to a matter within the common observation of men in the every day affairs of life, the opinion of a lay witness of ordinary intelligence, in the full possession of his senses, who.has observed the object and conditions to which the opinion relates, and whose experience in forming such estimates under like conditions has been such as should enable an ordinarily intelligent person to form such an opinion, should be admitted in evidence. So it is said: “An estimate of the speed at which an automobile, locomotive, or other object was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is accordingly well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object. Such characterizations as ‘fast,’ ‘at a high rate of speed,’ ‘going fast,’ etc., have been held proper. It should be noticed, however, that the supposition that speed is not a matter of expert opinion does not mean that experts cannot testify as to it, but merely that when they do their testimony is received, not as an exception to the opinion evidence rule made in cases of expert evidence, but under the exception existing in the case of impossibility of reproducing data.” 5 Am.

Jur. 860 ; 70 A. L. R. 540; 94 A. L. R. 1190; Berry on Automobiles, secs. 1272, 1273. The reason for the rule thus stated is the difficulty, often the impossibility, of reproducing the conditions to which the opinion relates, since once the moment of observation has passed the circumstances affecting it at that time are often but a memory. The condition of the object, its appearance, the sounds accompanying its passage, the intangible impressions left upon the mind of an observer by the conditions affecting his judgment, can rarely if, ever be exactly reproduced. Baltimore & Yorktown Turnpike R. Co. v. Leonhardt, 66 Md. 70, 78 , 5 A. 346 ; Baltimore & Yorktown Turnpike Co. v. Crowther, 63 Md. 558 , 1 A. 279 ; Everly v. Baker, 168 Md. 599, 612 , ¹⁸¹ 178 A. 691 .

So that where the facts which form the basis of a conclusion cannot be adequately exhibited to the jury, the estimate of them made by a witness who observed them may be evidence. Ibid; 5 Am. Jur. 675 , 20 Am. Jur. 640 .

So it has been said: “The broad general principle which permits witnesses to express opinions upon non-technical subjects because of the impossibility or the difficulty of reproducing data is perhaps most frequently applied where witnesses are called upon to make estimates of speed; distances, such as the distance between two points, the distance covered by a train, or the distance within which a train, street car, truck, automobile, or other moving object can be stopped; the height of an object above the ground; the degree of force in a particular situation, such as that produced by jars and jolts of railroad or street cars or by blows to an individual; the ability, capacity, or competency of persons ; the possibility of a specified thing being done; the age of a person, area, dimensions, and size; elevation and grade; and other matters of like import. Testimony of a witness as to such matters can rarely be given with mathematical exactness; but the fact that the witness may give his testimony in form of an estimate or expression of opinion makes it no less admissible as direct evidence of an observed fact.” Ibid, 675. Accordingly, it is well settled that any witness qualified by observation and experience, expert or non-expert, may testify to the speed of a moving automobile which he has observed. 5 Am. Jur. 860 ; United Rys. & Elec.

Co. v. Ward, 113 Md. 649 , 77 A. 593 ; Wash. B. & A. Elec. Ry. Co. v. Fingles, Inc., 135 Md. 574 , 109 A. 431 ; Hopper, McGaw & Co. v. Kelly, 145 Md. 161 , 125 A. 779 ; Jackson v. Leach, 160 Md. 139 , 152 A. 813 .

It is suggested, however, that that rule does not permit a witness not an expert to estimate the speed of a moving automobile in miles per hour, and that contention is undoubtedly supported by the opinion in State v. United Rys. Co., 139 Md. 306, 309 , 115 A. 109 , which cites Mantik’s case (United Rys. & Electric Co. v. Mantik), 127 Md. 198 , 205, 96 A. ¹⁸² 261. The point considered in the Mantik case was not the admissibility of an estimate of the speed at which an automobile was moving in miles per hour, but the admissibility of an estimate of its speed in any form, but the statement in State v. United Rys. Co., that a witness could not fix the speed of a moving automobile “as so much per hour,” “without having shown some special knowledge which would enable him to speak as an expert,” was quoted with apparent approval in Hopper, McGaw & Co. v. Kelly, supra, and is the law of this state, although contrary to the weight of opinion elsewhere.

Seager v. Foster, 185 Iowa. 32, 169 N. W. 681 ; 70 A. L. R. 540; 94 A. L. R. 1190. See also Waltring v. James, 136 Md. 406 , 111 A. 125 . But it is obvious that in using the term “expert” in State v. United Rys. Co., supra, the court did not have in mind only a person who had specially trained himself by study and observation to estimate the speed of moving objects, but rather any one who had, by actual personal experience, become familiar with the operation and speed of automobiles, whether his knowledge was gained through the personal operation of automobiles for business, or for pleasure, or as a traffic officer, or through experience in estimating the speed of moving automobiles operated by others (Hopper, McGaw & Co. v. Kelly, supra), for in the operation of an automobile over public highways for any purpose the driver must, to obey the traffic laws, constantly note its speed, and as well the speed of other