Ray v. Bassil

Powers, J., delivered the opinion of the Court. In considering a directed verdict motion in a negligence case, the standard laid down by the cases for measuring the sufficiency of evidence requires the court to reject any evidence which is not credible. The standard was stated by the Court of Appeals in Curley v. General Valet Service, 270 Md. 248, 264 , 311 A. 2d 231 (1973), to be: “ * * * that 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; that ‘Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury;’ that the rule requires submission of the case to the jury if there be any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury; that to meet the test of legal sufficiency, the party having the burden of proving another party guilty of negligence cannot sustain this burden ‘by offering a mere scintilla of evidence amounting to no more than a surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value.’ ” (Emphasis supplied). We expressed the rule in general but comprehensive form ⁵⁵³ in Buchanan v. Galliher, 11 Md. App. 83 , 272 A. 2d 814 , cert. denied, 261 Md. 722 (1971), when we said, at 87: “When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made, and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury.” (Emphasis supplied).

It is to the requirement that in order to enter the equation of sufficiency, evidence'must be credible, 1 2that we turn our attention. It has often been held by the Court of Appeals that the testimony given by a witness at a trial is “ * * * too inconclusive, uncertain, vague, and contradictory to furnish a rational basis for a finding of negligence.” Olney v. Carmichael 202 Md. 226, 231-32 , 96 A. 2d 37 (1953). The cases cited and quoted there include Bond v. Forthuber, 198 Md. 476 , 84 A. 2d 886 (1951); Kaufman v. Baltimore Transit Co., 197 Md. 141 , 78 A. 2d 464 (1951); Eisenhower v. Baltimore Transit Co., 190 Md. 528 , 59 A. 2d 313 (1948); U.S.F. & G. Co. v. Continental Baking Co., 172 Md. 24 , 190 A. 768 (1937); and Slacum v. Jolley, 153 Md. 343 , 138 A. 244 (1927). ⁵⁵⁴ In Olney v. Carmichael, supra, the Court, after discussing the self-contradiction by a witness at the trial, said, at 232-33: “This is not a case where the jury is entitled to decide between testimony given at the trial and testimony given at prior trial, or between present testimony and the truth of a prior conflicting statement. It is a ease, assuming, as we have, that the prior statements were in evidence at the trial, where the testimony of the witness from the stand is in hopeless conflict and without probative force.” The Court went on to discuss the question of sufficiency of evidence, and said, at 233-34: “The evidence in a case is legally sufficient if It rises above speculation or conjecture, and so affords the rational basis needed for a determination that the defendant was guilty of negligence which produced the accident.

Shafer v. State, 171 Md. 506, 509 , 189 A. 273 . In Maas v. Sevick, 179 Md. 491,492 , 20 A. 2d 159 , a girl of five was struck by a truck passing along an alley in Baltimore 'City. As the opinion puts It: ‘Mo witness saw the truck strike the child, but she was injured, and a charge of negligent cause in the driving is based upon estimates of her position and th at of the truck just before and after the accident.’ The Court refused to permit the jury to pass on ¡the question of negligence and Judge Bond said: ‘To permit submission of a case to a jury for its finding, there must be evidence of the cause of action beyond conjecture and speculation, not as we think this testimony is, “of so slight and inconclusive a nature as to be wholly insufficient to be made the basis of a verdict”.’ ” In Eisenhower v. Baltimore Transit Co., supra, the Court of Appeals said, at 537-38: “We have quoted the testimony of this witness at ⁵⁵⁵ such length so that we might properly evaluate its probative force. The various statements of the witness as to the position of the street car at the time the light turned green in the witness’ favor are clearly contradictory.

It was said in the case of Slacum v. Jolley, 153 Md. 343 , at page 351, 138 A. 244 , at page 248, that ‘when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion.’ This rule was applied in the cases of Oberfeld v. Eilers, 171 Md. 332 , 189 A. 203 , and Askin v. Long, 176 Md. 545 , 6 A. 2d 246 . In applying the rule in the case of United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24 , at page 33, 190 A. 768 , at page 772, the Court says: ‘The first answer that the light was changing to amber as he entered the intersection is cancelled by his answer that it changed back at the safety zone, 40 to 70 feet away. Such testimony has no probative force or evidential value.’ The last application of the rule by this Court was in the case of Butler v. Reed-Avery Co., 186 Md. 686 , 48 A. 2d 436 , where many of the cases are reviewed. Tested in the light of these authorities, it is our conclusion that the testimony of the witness, Metcalf, is too vague, indefinite and speculative to constitute a basis from which the jury could arrive at a rational conclusion.” The cases we have just cited and discussed have involved a judicial finding that certain evidence is not credible by reason of self-contradiction at the trial by the witness who is the source of the evidence.

But self-contradiction is not the only reason for holding that a part or all of the evidence given by a particular witness is not credible. His evidence taken as a whole may contain inconsistencies short of express self-contradiction; it may show that the witness himself was engaging in speculation and conjecture; it may ⁵⁵⁶ demonstrate that it was impossible for him to see what he says he saw; it may consist of adjectival descriptions which are subjective and not factual; it may be the witness’s own inference from other facts when more than one inference may be drawn; or it may be direct and purport to be factual, but physically or legally impossible because of other conceded or incontrovertible facts. When it is any of these, it is the duty of the court to determine whether the evidence exceeds the limits of credibility. If it does, the court will not permit the jury to consider it.

After distinguishing direct evidence of a fact from circumstantial evidence which permits more than one rational inference, the Court of Appeals, in Short v. Wells, 249 Md. 491 , 240 A. 2d 224 (1968), said, at 496-97: “But that is not the case here where there is more than conflicting inferences. Here there is direct as well as circumstantial evidence of negligence. It was therefore a question of fact for the jury and not mere speculation or conjecture as to what to infer. Bavis v. Fonte, 241 Md. 123 , 215 A. 2d 739 (1966); Ferguson v. Wootten, 240 Md. 186 , 213 A. 2d 498 (1965).

This is not to say that in every case where the plaintiff has introduced some direct evidence of negligence, it should go to the jury. If the direct evidence approaches the outer limit of credibility or, if in some situations, the direct evidence is merely adjectival, it would be insufficient. See Harper and James, op. cit, supra, § 19.2; Miller v. Robinson, 241 Md. 335 , 216 A. 2d 743 (1966).” See 2 Harper and James, The Law of Torts, § 19.2 (1956), where the authors, in discussing direct evidence with respect to its sufficiency to prove a fact, point out that, “ * * * here as elsewhere the courts retain the power to set the limits of what is credible evidence.”, and they refer further to “ * * * the power generally retained by courts to set the outer limits of credibility * * * .” This Court held in Tippett v. Quade, 19 Md. App. 49 , 309 A, 2d 481 (1973) that certain evidence in the case was not ⁵⁵⁷ credible under the circumstances, although not directly contradicted by the same witness. We excluded it from a determination of sufficiency, as against a motion for a directed verdict.

The Present Case And The Issues On 9 May 1970, at about 4:40 P.M., Margaret Jane Bassil was walking from west to east across Barclay Street, in Baltimore. Owen Maxie Ray was driving his automobile south on Barclay. The automobile hit Miss Bassil and caused serious injuries. Miss Bassil filed suit in the Baltimore City Court against Mr. Ray as well as his employer, North Carolina Mutual Life Insurance Company, alleging that Ray was negligent, and that he was on the business of his employer at the time of the accident.

The case was tried before Judge Albert L. Sklar and a jury in January, 1975. The jury returned a verdict in favor of the plaintiff against both defendants. After motions were heard and denied in February, 1975, judgment was entered on the verdicts, and both defendants appealed. Appellants contend here that their motions for a directed verdict should have been granted because, (a) the evidence was not legally sufficient to permit the jury to find that Mr. Ray was negligent, and (b) the evidence showed that as a matter of law the plaintiff was guilty of negligence which directly caused or contributed to her injuries.

Mr. Ray also contends that the court erred in instructing the jury that, “From the fact that Mr. Ray did not testify concerning speed, you may infer that if he had taken the stand his testimony would have been unfavorable to him in that regard.” Appellant North Carolina Mutual Life Insurance Company contends additionally that a verdict should have been directed in its favor because the evidence failed to establish a master-servant relationship between it and Ray. The Evidence Of The Happening Of The Accident Miss Bassil, in her middle fifties, had suffered a stroke, ⁵⁵⁸ unrelated to the accident, about three years before the trial. She was present at the trial, but did not testify. Both sides agreed that she was not competent to do so.

Her sister, Mrs. Bernice Dent, described her physical condition before and after the accident. She said that Miss Bassil had been half blind and hard of hearing “ever since I can remember”, but that she had no previous trouble with her legs or with walking. After the accident and before the stroke Miss Bassil, when walking, rocked from side to side, and sometimes lost her balance. There was evidence that at the scene and at the hospital, Miss Bassil smelled of alcohol,