Rogers v. Frush

Smith, J., delivered the opinion of the Court. In the unfortunate accident which gives rise to this litigation the boulevard rule was applied and we are not asked to interpret it. Suit was brought in the Circuit Court for Prince George’s County by Clarence Franklin Frush individually and as father and next friend of his son, Robert Randolph Frush, a minor, they being the appellees here. Defendants were Mary Fred Rogers and her husband, Winston Bratton Rogers, appellants.

The matter was moved to Charles County for trial where a jury returned a verdict of $100,000.00 in favor of the infant plaintiff and $13,270.00 in favor of the father, the verdicts being against both defendants. The appellants pose four questions, namely (1) “Did the trial court commit reversible error in refusing to permit testimony upon appellants’ proffer that such testimony would have shown the minor appellee to have been contributorily negligent in his failure to wear a protective helmet?”, (2) “Did the trial court commit reversible error in refusing appellants’ proffer of evidence that would have shown that the minor appellee could have avoided the consequences of the accident by reasonable conduct on his part?”, (3) “Did the trial court commit reversible error in refusing appellants’ proffer of evidence which would have shown that the minor appellee’s conduct amounted to assumption of the risk of the consequences of this accident?”, and (4) “Did the trial court commit reversible error in presenting the question of Mrs. Rogers’ agency for Mr. Rogers to the jury?” Find ²³⁶ ing no error on the part of the trial judge, we shall affirm the judgments. Mrs. Rogers left her place of employment at the Hyattsville Branch of the Prince George’s County Library at Toledo ■ and Adelphi Roads in Hyattsville at approximately 6:00 P.M. on July 13, 1965. She was accompanied by a co-worker, Delores Covington.

The home of Mrs. Covington was at 1513 Longfellow Street in Chillum Heights. It was the intention of Mrs. Rogers to proceed to a bus stop at a point on Eastern Avenue on the Maryland — D.C. line to pick up her husband. Her destination for that purpose, as indicated by a map filed in the proceedings, was at Michigan Avenue and Eastern Avenue, a point approximately one mile “as the crow flies” from the home of Mrs. Covington. The accident in question occurred' at the intersection of Toledo Road and Belcrest Road.

The intersection ■ is controlled by a stop sign, with Belcrest Road being the favored highway. Young Frush was operating his Honda motorcycle in a southbound direction on Belcrest Road. Mrs. Rogers was westbound on Toledo Road. Collision ensued after Mrs. Rogers, according to her testimony, had stopped at the stop sign, had successfully crossed the three northbound lanes and saw nothing in the southbound lanes when she reached the median strip, although young Frush obviously was there.

Mrs. Rogers at the time was operating the vehicle of her husband. I. This case was tried in November of 1968. Appellants took courage from the passage of what is now Code (1969 Cum. Supp.), Art. 66%, § 195 (g) by Chapter 665 of the Acts of 1968 effective July 1, 1968, which reads as follows-: “Protective gear. — No person shall drive * * * a motorcycle as defined in this article, unless he is wearing a firm and durable protective helmet or headgear * * * approved by the Commissioner of Motor Vehicles.” ²³⁷ Seizing upon this and the decision of this Court in Cierpisz v. Singleton, 247 Md. 215 , 230 A. 2d 629 (1967), the defendants thought they saw a possible way out of the unfortunate situation in which they found themselves.

In Cierpisz Judge McWilliams said for the Court: “We agree * * * with the courts that have held it is not negligence per se to fail to use a seat belt where the statute requires only its installation in the vehicle and we so hold. We hold, also, that the failure to use the seat belt, standing alone, is not evidence sufficient to support a finding of contributory negligence. Some future case in which the availability of the belt will be known to the plaintiff and in which there vjill be evidence indicating the failure to use it tvas a substantial factor in producing or aggravating the plaintiff’s injuries may require us to consider holding that the issue, with proper instructions, ought to be submitted to a jury. This case does not require it and we do not so hold.” Id. at 227 .

(emphasis added) Upon the strength of the above emphasized portion of the opinion in Cierpisz , appellants sought to introduce into evidence the testimony of Dr. Ayub Ommaya, a qualified neurosurgeon. They proposed establishing him as an expert in the field of investigating automobile and other vehicular accidents and the relationship of the use of helmets as a protective measure in such matters and as an expert in the statistics derived from histories of accidents in which such protective measures were important. It was then proposed to show that the failure to use a helmet in this instance was a substantial factor in producing or aggravating young Frush’s head injury by showing that the probability of a brain injury would have been significantly reduced by the wearing of a helmet. The ultimate proffer was that the expert was prepared to testify that if the young man had worn a helmet, his chances of having the physical condition from which he ²³⁸ suffered after the accident would have been reduced by at least 50% and his chances of receiving a basilar skull fracture (such as he received) would have been reduced 90%.

The trial judge declined to permit this testimony, pointing out, among other things, that the expert would probably say that similar reductions would take place in an automobile accident if a helmet were worn, with particular reference to a convertible. Defendants then called as a witness the sales manager of the establishment from which the motorcycle was bought. A proffer was made that he would testify that it was commonly accepted that motorcycle purchasers would buy helmets and that dealers recommended their' purchase. There was no proffer, however, that he attempted to sell a motorcycle helmet to young Frush or his father.

In Kennedy v. Crouch, 191 Md. 580 , 62 A. 2d 582 (1948), this Court observed: “It is an elementary rule that evidence, to be admissible, must be relevant to the issues and must tend either to establish or disprove them, and evidence which does not tend to describe or explain the facts and circumstances of the case is inadmissible.” Id. at 585 . For the proposed testimony here to be relevant it would be necessary for it to relate to conduct on the part of young Frush which would amount to contributory negligence. In Potts v. Armour & Co., 183 Md. 483 , 39 A. 2d 552 (1944), this Court defined contributory negligence, saying: “Contributory negligence is the neglect of duty imposed upon all men to observe ordinary care for their own safety. It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.” Id. at 490 . ²³⁹ It is not every action on the part of a litigant which an opponent by way of “second guessing” or hindsight may successfully label as contributory negligence.

For instance, in another day our predecessors in Baur v. Calic, 166 Md. 387, 396 , 171 A. 713 (1934), said: “The fact that a plaintiff is riding upon a running board of a car is not, in itself, necessarily contributory negligence, depriving the plaintiff of the right to recover.” But see Bratton v. Smith, 256 Md. 695 , 261 A. 2d 777 (1970) for a more modern situation where an individual was riding on the drawbar of a tractor. In Sanders v. Williams, 209 Md. 149 , 120 A. 2d 397 (1956), Judge (now Chief Judge) Hammond said for the Court: “As is true of primary negligence, one measure of contributory negligence is the need, in a given situation, to anticipate danger. Presence or absence of reasonable foresight is an essential part of the concept. One is charged with notice of what a reasonably and ordinarily prudent person would have foreseen and so must foresee what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens.

On the other hand, one is not bound to anticipate every possible injury that may occur or every possible eventuality.” Id. at 152 . The evidence proffered was not indicative of a failure on the part of young Frush to adhere to a standard falling within the context of this rule. There was no testimony that an attempt was made to sell a helmet to young Frush or to his parents for him. The fact that the General Assembly almost three years after the accident saw fit to require the wearing of such a protective helmet would not be sufficient ground for concluding that as of the time of the accident such a standard of conduct was expected by the general public, particularly when it is noted that the General Assembly in its passage of Chapter 437 of the Acts of 1967 struck from Senate Bill 189 ²⁴⁰ a proposal which read, “No person shall ride on a motorcycle unless he is properly wearing a safety helmet approved by the Department.” The trial judge correctly denied admission of the evidence.

II

The appellants urge that the trial judge erred in excluding the evidence we have just discussed because young Frush could have avoided the consequences of the accident by reasonable conduct on his part. They cite Prosser, Torts, 433 (3rd Ed. 1964), as stating, that recovery is denied “for any damages which could have been avoided by reasonable conduct on the part of the plaintiff.” An example of a correct application of the doctrine of avoidable consequences is set forth in Hendler Creamery Co. v. Miller, 153 Md. 264 , 138 A. 1 (1927). The plaintiff in that case refused an operation after the accident which it was claimed would have improved his condition. Judge Adkins for our predecessors said: “It has been definitely decided in this state that there can be no recovery for suffering and disability which could have been prevented by a simple operation, which an ordinarily reasonable man would have submitted to, but which plaintiff refused to submit to.

United Rwys. Co. v. Dean, 117 Md. 686 ; Schiller v. Balto. & O. R. Co., 137 Md. 246 , and cases there cited.” Id. at 272 . In Miller v. Miller, 273 N. C. 228 , 160 S.E.2d 65 (1968), the Supreme Court of North Carolina had before it a case in which the