Rafferty v. Weimer

Mason, J., delivered the opinion of the Court. The appellants, Thomas B. Rafferty and wife, brought suit in the Superior Court of Baltimore City against James Franklin Weimer and B^P Motor Express, Inc., appellees, for personal injuries and loss of consortium. The jury rendered a verdict in the amount of $840,000 in favor of the appellants. After rendition of the verdict, the trial judge entered », judgment n.o.v. in favor of the appellees on the basis that Thomas R. Rafferty was guilty of contributory negligence as a matter of law.

From this judgment the appellants appeal. The following questions are presented: L Was there legally sufficient evidence for the jury to find that Eaffrrtyfr injuries were caused by the negligence ©f Weimer? ¹⁰⁰ II. Did the trial court err in finding Rafferty guilty of contributory negligence as a matter of law?

III

Did the trial court err in instructing the jury to reduce to present value the amount of wages which Rafferty would lose in the future because of his permanent disability?

IV

Did the trial court err in its instructions to the jury on the liability issues? On the evening of December 4, 1973, Rafferty left his home in Baltimore City to visit his father in the Frostburg area, who had been hospitalized that morning for a heart attack. At approximately 9 P.M. a tractor-trailer, owned by B & P Motor Express, Inc. and driven by Weimer, collided with the Rafferty vehicle. At the time of the collision, the 1965 automobile of Rafferty was stopped without lights on the shoulder of Interstate 70W with two feet extending into the right westbound lane of the highway.

Prior to the accident, Weimer was driving on Interstate 70W in the right lane and within the speed limit. There was no traffic in front of or on the side of him; he had a clear and unobstructed view of the highway for at least one-quarter mile. The area in which the accident occurred was well-lighted and the roadway was dry. Weimer indicated that before the accident he never saw Rafferty or his vehicle.

In describing the accident, Weimer, in his deposition, stated: Q. All right. Would you tell us exactly what happened immediately prior to the accident and at the time of the accident? A. I was proceeding west and I just glanced in my right — over my left rearview mirror — Q. Is it your left or your right? A. Left.

Q. Your left mirror? A. I looked in my left mirror, and when I brought my head back straight, the impact occurred. The collision resulted in extensive damages to the entire left side of Rafferty's vehicle and damages to the front end ¹⁰¹ of the tractor-trailer and four tires along the right side of it. The Rafferty vehicle was lodged against the guardrail on the shoulder of the road.

Two feet of the car extended into the traveled portion of the highway since there was not enough space for the vehicle to fit entirely on the shoulder of the road. Rafferty’s key was in the ignition in the on position, but the engine was not running. The only skid marks found were those directly beside the left front tire, indicating the vehicle had moved six inches from left to right. Grease marks were found on the hood of the car, which was closed, and on Rafferty’s right hand.

Rafferty was found unconscious approximately twenty feet from his car across the guardrail in the median strip adjacent to the shoulder of the road. His trousers had been torn off; there were severe injuries to his left hand and several brush burns on his body. The back of his head was injured, apparently when it struck a steel-grated drain located in the underbrush. In addition, a red substance was found on the guardrail which appeared to be blood.

A subsequent examination of Rafferty disclosed that he sustained contusions of the right leg and both thighs; a compound fracture of the left forearm and hand, and a closed fracture of the right hand. He also suffered a permanent, irreversible brain stem injury which expert testimony indicated was caused by a vehicular accident. Rafferty has been hospitalized or in a nursing facility since the accident. He is a cerebral cripple and is unable to tell anything about the accident.

I. We will first consider whether there was sufficient evidence of primary negligence on the part of Weimer to take the case to the jury. Although the appellees do not concede, they apparently do not contest the fact that Weimer was negligent in sideswiping the Rafferty vehicle. Weimer had a clear and unobstructed view of the highway; ¹⁰² if he had looked, as alleged, he would have seen the Rafferty vehicle. We accept the rule that where a witness testified that he looked and listened, but did not see or hear a certain object, which, if he had actually looked and listened, he must necessarily have seen and heard, his testimony is not worthy of consideration.

Bush v. Mohrlein, 191 Md. 418, 423 (1948). Not only must Weimer’s negligence be proved, the proximate cause of the injuries to Rafferty must have resulted from it. The appellants’ theory of causation is that at the time of the accident Rafferty was standing in front of his vehicle with his hands on the hood; that when the tractor-trailer collided with the vehicle, the resulting impact hurled Rafferty into and over the guardrail onto a sloping grass plot adjacent to the shoulder of the road. The circumstantial evidence relied on by the appellants to support this theory is: the collision of the tractor-trailer with the Rafferty vehicle, the damages resulting to both vehicles, blood on the guardrail in front of the Rafferty vehicle, grease marks on the hood of the Rafferty vehicle and on Rafferty’s right hand, and the medical testimony that Rafferty’s injuries were caused by a vehicular accident.

In proving causation, Rafferty is permitted to rely on circumstantial evidence. Direct testimony is not essential. The matter of causation does not have to be established by direct and positive proof to an absolute certainty. Reasonable certainty is the quantum of proof required.

See Peterson v. Underwood, 258 Md. 9, 17 (1970) and Otis Elevator v. LePore, 229 Md. 52, 58 (1962). The appellees argue, in effect, that the circumstantial evidence, relied on by the appellants to support the inference that Rafferty was struck by his own vehicle following the collision with the Weimer tractor-trailer, is untenable and totally contrary to indisputable scientific principles. To buttress this argument, the appellees assert that since the skid marks indicated that the Rafferty vehicle only moved six inches sideways, without any forward movement, “[t]h@ ¹⁰³ only reasonable inference from this evidence is that if Rafferty were indeed standing near and struck by his own car he could not possibly have been thrown forward and to the right a distance of 20 feet by a six-inch lateral movement of the vehicle.” Notwithstanding the fact that the skid marks failed to indicate any forward movement of the Rafferty vehicle, Weimer, in his deposition, admitted that the vehicle might have moved forward a little. Skid marks without more, are not conclusive as to movement.

In York Motor Express Co. v. State, 195 Md. 525, 535 (1950), the Court of Appeals said: So, we recognize that it is not generally safe to rely exclusively on testimony as to marks made by vehicles on a road for judicial determination of the movements of the vehicles just before a collision. See also Shafer v. State, 171 Md. 506, 509 (1937). We think the jury could have found it more probable than not, that the sideswipe collision, which demolished the left side of the Rafferty vehicle and damaged the right front end of the tractor-trailer and four of its tires, caused some forward movement of the Rafferty vehicle. The absence of forward skid marks merely suggests that the tires on the Rafferty vehicle were pointed straight ahead without application of the brakes.

Consequently, at the moment of impact there was no resistance or friction to cause forward skid marks. Any other conclusion under the physical facts here would, in our opinion, be contrary to common knowledge and experience if not contrary to scientific principles. We further think the jury could have found it more probable than not, based on the severity of the impact; grease marks on the hood of the car and on Rafferty’s hand; blood on the guardrail; and medical testimony that Rafferty’s injuries resulted from a vehicular accident, that the negligent act of Weimer colliding with the Rafferty vehicle was the proximate cause of Rafferty's injuries. ¹⁰⁴ In Otis Elevator v. LePore, supra, half of a child’s left foot was amputated by an escalator. No witnesses actually saw and testified to the exact spot where the child’s foot was caught and injured.

The evidence disclosed that there was an unsafe gap between the steps of the escalator and its side walls. The defendant argued that the child’s foot may have been injured at some point on the escalator which was not unsafe. Therefore, it could not be held liable since it was not shown that said negligence was the proximate cause of the injuries. The Court, in affirming the judgment for the plaintiff, stated what is known as the “more probable than not” rule as set forth in Prosser, Torts (2nd ed.), §44: Plaintiff is not, however, required to ... negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.

The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Id. at 58. The appellees’ alternate contention is that the “evidence produced by the appellant points to only one logical conclusion — that Rafferty was struck by some motor vehicle at some time while he was walking or standing in one of the traveled westbound lanes of Interstate 70.” This theory of liability and causation fails to rise above the level of speculation and conjecture as to what actually occurred. Nothing in the evidence adduced at trial indicated that the appellant’s injuries occurred while he was walking on or standing in the traveled portion of the highway.

In determining whether a plaintiff has produced sufficient evidence to go to the jury, it is axiomatic that this evidence as well as all legally permissible inferences drawable therefrom must be considered in the light most favorable to the plaintiff. ¹⁰⁵ In Fowler v. Smith, 240 Md. 240 (1965) the Court of Appeals held: 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. ... And Maryland has gone almost as far as any jurisdiction that we know 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