Thodos v. Bland

⁷⁰³ ROBERT M. BELL, Judge. Patricia Thodos, appellant, was injured when the car in which she was a passenger 1 was involved in a collision with another vehicle at the intersection of Livingston Road and Route 210 in Prince George’s County. As a result, appellant brought an action against Alton Linsey Thacker, the driver of the automobile in which she was a passenger, and Brian Bland, the operator of the second vehicle, appellees, alleging that her injuries were caused by their negligence, either individually or jointly. Each appellee filed a cross-claim against the other, in which each asserted that the other’s negligence was the sole cause of the accident.

The case was tried by a jury in the Circuit Court for Prince George’s County. Having no recollection of the circumstances leading up to the collision, or of the collision itself, appellant called both appellees as witnesses to prove her case. Appellee Bland testified that he was operating his automobile northbound on Route 210, proceeding toward its intersection with Livingston Road. When he first observed the traffic signal, which controlled that intersection, he noticed that it was red, but, as he drew nearer, it turned green.

As he approached the intersection, Bland stated that he removed his foot from his accelerator and lightly applied his brakes in response to an automobile turning in front of him from southbound Route 210 onto Livingston Road. Immediately thereafter, he saw the Thacker automobile turning in front of him, and, although he “mashed on” his brakes, he was unable to stop or avoid striking it. Appellee Thacker contributed that he was traveling southbound on Route 210 intending to make a lefthand turn onto Livingston Road. When he approached the intersection, the left turn traffic signal being red, he pulled into the left turn lane and stopped.

He was the first car in line, however. When the traffic signal showed a green arrow, ⁷⁰⁴ Thacker testified that he proceeded to make his turn and, although he had visibility for 300-400 yards southbound on Route 210, he did not see appellee Bland’s vehicle until appellant screamed. The collision occurred immediately following the scream. After appellant rested her case, each appellee presented his own case, during which each presented testimony corroborative of his story.

Norman Grimes, called as a witness in appellee Bland’s case, testified, consistent with Bland’s testimony, that the single green arrow traffic signal facing southbound Route 210 went from a green arrow to nothing, after which the Thacker automobile entered the intersection and was struck by the Bland automobile. When the accident occurred, Grimes was leaving the shopping center on the west side of Route 210. Thacker called three witnesses, two of whom corroborated his testimony. Lisa Gwinn was proceeding westbound on Swan Creek Road 2 , from which she observed the accident.

According to her, the traffic light controlling the direction in which she was traveling turned red as she approached the intersection. That being the case, she testified that from her experience, the next traffic signal would be a green arrow for traffic turning left from southbound Route 210. While stopped, she watched the Thacker automobile turn left and move across the northbound lanes of Route 210 until the Bland vehicle approached and struck the Thacker automobile broadside. Gwinn testified that she observed no traffic light malfunction.

Sandra Jones was southbound on Route 210, in the left turn lane behind the Thacker automobile. When the red signal changed to a green arrow, she observed the Thacker automobile enter the intersection to make its left turn, at the same time she observed Bland’s automobile approach, and, thereafter, she observed the automobiles collide. Jones completed her left turn, stopped her car, and lent ⁷⁰⁵ assistance. She did not observe any traffic signal malfunction either.

Appellee Thacker also called Harry Pfeiffer of the State Roads Department. Pfeiffer testified as to the sequence of the traffic signals controlling the subject intersection: when the light controlling traffic on Swan Creek Drive is red and there are cars in the designated left turn lanes, the signal controlling left turning traffic would show green arrows for both north-and southbound Route 210 traffic. The green arrows would last from between four and thirty seconds, depending upon the number of cars turning left, followed by a five second yellow signal and then a one second red signal to allow traffic to clear the intersection. When the left turn arrows are green, the signal controlling through traffic, both northbound and southbound, would be red.

Pfeiffer also testified that there was no record of a malfunction in the traffic signals on the date of the accident and that there had not been even a complaint of one since March 1,1985, almost two months earlier. Finally, Pfeiffer testified that had the left turn traffic signal displayed a green arrow simultaneously with a green signal for through traffic on Route 210, the signals would have immediately flashed, indicating a malfunction. The jury was instructed based on the factual presentation made by each appellee and the case was then submitted to the jury on special issues: (1) Do you find that [appellee] Brian Bland was solely responsible for the happening of this accident ...?; (2) Do you find that [appellee] Thacker was solely responsible for the happening of this accident ... ?; (8) Do you find that both [appellees] Bland and Thacker were responsible for the happening of this accident ... ?; and (4) Do you find that [appellant] has not proved by a preponderance of the evidence that either [appellee] was responsible for the happening of this accident ... ? The jury answered the first three issues in the negative and the final issue in the affirmative; therefore judgment was entered on the verdict in favor of each appellee and against appellant.

Appellant’s motions for new trial and for recon ⁷⁰⁶ sideration of the denial of the new trial motion having been denied, appellant appealed, presenting but one question: Did the trial court err in denying appellant’s motion for new trial? 3 That a trial court may grant a new trial to any party upon a timely motion and proper grounds is beyond dispute. See Maryland Rule 2-533. 4 Whether to grant or deny a motion for a new trial, however, is a matter addressed to the sound discretion of the trial court. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 249 , 272 A.2d 1 (1971); Leitch v. Anne Arundel County, 248 Md. 611, 619 , 237 A.2d 748 (1968), Brinand v. Denzik, 226 Md. 287, 292 , 173 A.2d 203 (1961); Waters v. Waters, 26 Md. 53, 73 (1866); Walker v. Hall, 34 Md.App. 571, 591 , 369 A.2d 105 (1977); Murphy v. Board of County Commissioners, 13 Md.App. 497, 513 , 284 A.2d 261 (1971). The exercise of the discretion entrusted to it will not be reviewed on appeal, at least when the trial court has fairly exercised its discretion, Martin v. Rossignol, 226 Md. 363, 366-67 , 174 A.2d 149 (1961); Walker v. Hall, 34 Md.App. at 591 , 369 A.2d 105 ; Murphy, 13 Md. ⁷⁰⁷ App. at 513, 284 A.2d 261 , and except under the most extraordinary or compelling circumstances, AS.

Abell Company v. Skeen, 265 Md. 53, 59 , 288 A.2d 596 (1972); Walker v. Hall, 34 Md.App. at 591 , 369 A.2d 105 ; Podolski v. Sibley, 12 Md.App. 642, 647 , 280 A.2d 294 (1971); State, Use of Shipley v. Walker, 230 Md. 133, 137 , 186 A.2d 472 (1962), or except where some substantial right is denied. Brinand v. Denzik, 226 Md. at 293, 173 A.2d 203 ; State v. Baltimore Transit Co., 177 Md. 451, 454 , 9 A.2d 753 (1939). 5 Therefore, as a preliminary matter, our task is to determine whether extraordinary or compelling circumstances exist, or substantial rights have been denied, sufficient to justify our review of the trial court’s denial of appellant’s motion for new trial. Only after having made that determination need we proceed to consider whether the ruling was an abuse of discretion. A necessary component of the threshold determination is the consideration of the circumstances under which the granting of a new trial has been upheld.

In Snyder v. Cearfoss, 186 Md. 360, 368-69 , 46 A.2d 607 (1946), the Court of Appeals explained: In granting a new trial, [the Court] does not assume that the verdict is, but that it may be, wrong. It says to the parties, we are strongly apprehensive that the result is not in accordance with the evidence. We think it expedient to submit the case to another jury, and leave it to ⁷⁰⁸ them to say whether or not our fears are well-founded____ It is settled, then, that the court which tried the cause, may, in a proper case, of which it shall be the judge, set aside the verdict and grant a new trial, under circumstances which at first blush would seem to trench upon the rights of the jury. It can look through the evidence upon which the jury have [sic] passed, and then consider the verdict.

It can compare them, and, if the one is clearly irreconcilable with the other, can so pronounce, and order the case to be submitted to another jury. Thus, a new trial appropriately may be granted where the verdict is against the evidence or the weight of the evidence. Moreover, a motion for new trial may be granted “[w]here ... it can be seen, upon a consideration of the whole case, that the verdict is inequitable____” Waters v. Waters, 26 Md. at 73 . Furthermore, there is no impropriety in the trial court’s grant of a new trial where “... the verdict of the jury is insufficient, or contrary to the admissions of the parties____” Hughes v. Howard, 3 H & J 9, 12 (1810).

And, where the focus of a motion for new trial is the infusion of extraneous matter in the jury’s deliberations, and the prejudice to the moving party is great, it is an abuse of discretion to deny a motion for new trial. See Wernsing v. General Motors Corp., 298 Md. 406, 420 , 470 A.2d 802 (1984). Thus, it may be concluded that a new trial may be granted whenever there is a fair probability that to fail to do so would deny a party the right to a fair trial. 298 Md. at 419 . This is not to say, of course, that a new trial is mandated whenever there are inconsistent findings by the jury or whenever it seems apparent that the jury ignored some portion of the instructions, see D.C. Transit System v. Brooks, 264 Md. 578, 588-89 , 287 A.2d 251 (1972); Grabner v. Battle, 256 Md. 514, 516-19 , 260 A.2d 634 (1970); what we have already said concerning the general rule remains applicable.

In the instant case, appellant was not the operator of either of the automobiles involved in the accident; she was merely a passenger in one of them. As such, and the ⁷⁰⁹ record does not contradict that this is so, neither appellee having presented any evidence to the contrary at trial, she was entirely blameless insofar as the happening of the accident is concerned. 6 Moreover, neither appellee presented any evidence which would tend to prove, or support an inference, that the accident was an unavoidable one. Indeed, the uncontradicted evidence presented by appellee Thacker was such as to preclude a finding that the accident resulted from a malfunction in the traffic control devices. In fact, the evidence presented by all of the parties was such that the only finding on the merits that the trier of fact could have made was that the negligence of either one or the other of the appellees was the proximate cause of the accident, 7 a fact that each appellee all but conceded at oral argument.

Nor is there any question but that the evidence presented at trial was sufficient to sustain a jury verdict finding either one or the other of the appellees negligent and therefore responsible for the accident. Under these circumstances, because it is difficult to understand what else appellant could have done to prove her case, one could easily conclude that the jury’s finding that she did not is, to say the least, against the evidence as well as the weight of the evidence. Moreover, when the state of the record is considered along with the consequences of the jury’s verdict on appellant—it has the effect of requiring appellant to bear the burden of her own loss, even though, as the record accurately reflects, she had no responsibility for that loss—the trial judge’s exercise of discretion to deny appellant’s motion for a new trial may be characterized as presenting both an extraordinary as well as a compelling circumstance. Furthermore, the denial of the motion may ⁷¹⁰ also constitute the denial to appellant of a substantial right, i.e., the opportunity for a just resolution of her claim.

See Kimmey, 141 Md. at 250-53, 118 A. 648 . In any event, the potential that appellant will be materially prejudiced by the refusal of a new trial is great. See Wernsing, 298 Md. at 420 , 470 A.2d 802 . The question remains, whether the trial court abused its discretion.

This determination must be made by reference to, and consideration of, all of the facts and circumstances of the case, including those facts and circumstances just reviewed. Weiner v. State, 55 Md.App. 548, 555-56 , 464 A.2d 1096 (1983), aff'd, State v. Werner, 302 Md. 550 , 489 A.2d 1119 (1985). Although we have found no case on all fours with the facts sub judice, we believe that assistance may be gained from two out-of-state cases, Myers v. Gold, 277 Pa.Super. 66 , 419 A.2d 663 (1980) and Banes v. Thompson, 352 So.2d 812 (Miss.1977). The accident in Myers also occurred at an intersection, although not one controlled by traffic control devices.

The Myers’ car, Mrs. Myers driving and her husband, a passenger, was proceeding through the intersection while the other car, that of the co-defendant Mr. Gold, was making a lefthand turn. The Myers brought suit against Gold, Gold joined Mrs. Myers as an additional defendant, and the case was tried before a jury. The jury returned a verdict finding neither driver negligent, whereupon the Myers moved for a new trial. The trial judge denied the motion, and they appealed, contending that the verdict was against the weight of the evidence.

After stating the standard of review for the denial of a motion for a new trial, i.e., “that the decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion ..., [and] that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice”, 419 A.2d at 664 , the Court held, as to Mr. Myers, the ⁷¹¹ passenger, that the denial of the motion for a new trial was an abuse of discretion. It explained: ... [T]he ... facts do not substantiate the finding of the jury that neither driver was negligent. Although appellant Robert Myers’ testimony would tend to show negligence on the part of his wife, resolving the conflicts in testimony in favor of appellant Laura Grace Myers indicates negligence on the part of appellee. 419 A.2d at 665 . Thus, since it implied that the passenger was negligent, a finding which was clearly against the weight of the evidence, the denial of the motion as to the passenger shocked the court’s sense of justice.

In Banes , the passenger in one of the automobiles involved in the accident appealed from the jury verdict in favor of the operators of the automobiles. In reversing the trial judge’s denial of the passenger’s motion for new trial, the Court, addressing the question raised, whether the verdict was against the great weight of the evidence, stated: Without question, appellant was not guilty of any negligence. The collision was not unavoidable and it