Todd v. Ferrell

Brune, C. J., delivered the opinion of the Court. This case grows out of a collision involving three motor vehicles, all of which were proceeding in the same direction in a line of traffic which was halted by a traffic light about 250 feet ahead of the leading one of these three vehicles. The first of them was a combination tractor-trailer belonging to the appellant, The Guardian Moving and Storage Company (“Guardian”) and driven by Guardian’s employee Paul R. Todd, the other appellant (the two appellants being collectively referred to below as “Todd”, unless the context indicates that the individual appellant only is being spoken of). The second vehicle was a passenger car driven by one of the appellees, James G. Ferrell.

The other appellee, Ferrell’s wife, was a passenger in that car. A third adult passenger was a Mrs. Pepe, a sister of Mrs. Ferrell. These three were the plaintiffs in three separate suits against Todd and against one Baugh, who was the owner and driver of the third vehicle, a ¿4,-ton Chevrolet panel truck. James G. Ferrell was ⁵⁷⁸ also a defendant in Mrs. Pepe’s suit.

That suit resulted in a verdict against Guardian, Todd and Baugh and in favor of Ferrell. It has been settled and is not before us. Verdicts and judgments thereon were rendered in favor of Ferrell and Mrs. Ferrell against Guardian, Todd and Baugh. Guardian and Todd had moved for a directed verdict at the close of the testimony, but their motion was overruled.

They also moved for judgment N.O.V., and that motion also was overruled. After judgment was entered, Guardian and Todd appealed; Baugh did not. Todd (using the name in the collective sense stated) reserved no exceptions to the charge of the trial judge. The appeal is based upon the denial of the motion for a directed verdict.

They assert lack of proof of primary negligence on their part, and they seek to exclude from consideration the testimony of Baugh on the ground that it contradicts that of the plaintiffs. The evidence is clear as to these facts: (1) All three vehicles were going south on Hanover Street in the City of Baltimore at about 9:30 or 9:45 A. M. on August 24, 1954, at which time the weather was clear and the roadway dry. (2) There was a considerable line of traffic in which these vehicles were moving and all the parties were aware of that fact. (3) They were all using the same lane, which was the easterly of the two southbound lanes and was next to the center line of the street.

(There was testimony of Baugh, referred to later, that Todd swung over into the northbound lane and then cut back into the southbound lane of traffic just before stopping.) (4) The collision occurred after Todd stopped, and all three were jammed together when it was over. (5) The effect of the collision was a somewhat accordion-like squeezing of the Ferrell car, with injuries to the occupants and damage to the car. What is less clear is the speed of the three vehicles, but it seems to have been about 20 to 25 miles per hour. The distance between vehicles is also (and almost unavoidably) not precisely shown.

Todd was following a blue car at a distance which the helper on Todd’s tractor (one Raugh) estimated at the time when Todd applied his foot brake at six ⁵⁷⁹ feet. Ferrell was following about twenty-ñve feet behind the Todd trailer (a thirty-two foot “flat-bed” trailer not carrying any load), and Baugh’s truck was about twenty-five feet behind Ferrell’s car. When traffic stopped because of the adverse traffic light ahead, Todd stopped without striking the car ahead, still at a distance estimated by Raugh as six feet. According to both of the Ferrells and Mrs. Pepe, the Ferrell car stopped short of the Todd trailer by a sufficient distance to enable them, as occupants of the front seat, to see a portion of the street between the trailer and the car.

Baugh did not stop until after ramming the Ferrell car, and his testimony indicates that he had slowed his truck down somewhat but did not apply his brakes hard until just about the moment of impact. He claimed that he could have stopped in three or four feet. There is the testimony which is usual in such cases about “sudden” stops. The term was used by all three drivers and by Mrs. Ferrell and Mrs. Pepe.

Its exact significance is a little elusive, and it requires little citation of authority to show that adjectives alone are not enough to take a case to the jury. Sonnenburg v. Monumental Motor Tours, 198 Md. 227, 237 , 81 A. 2d 617, 621 ; Jones v. Baltimore Transit Co., 211 Md. 423, 428 , 127 A. 2d 649, 652 . The testimony of the Ferrells and Mrs. Pepe shows that the stop of the Todd tractor-trailer was not so sudden that the Ferrell car could not avoid hitting it and the Ferrell car did not stop with such suddenness as to throw them off the seat. Baugh claimed that the Todd tractor-trailer swung left over the center line of Hanover Street to pass the car in front of it, that Todd found the traffic light against him and then cut back into the southbound lane ahead of Ferrell and stopped so suddenly that Ferrell ran into the trailer before Baugh hit him and that it all happened so quickly that Baugh could not stop before hitting Ferrell.

An officer of the accident investigation and prevention bureau of the Baltimore City Police Department arrived on the scene about ten minutes after the collision and before any of the vehicles had been moved. He found tire marks behind ⁵⁸⁰ the Todd and Ferrell vehicles, but could not identify them positively with those vehicles. There were none behind the Baugh truck. From an examination of broken glass and debris he placed the points of impact “within a foot either way” of the points where the vehicles were in contact with each other when he arrived on the scene.

This lends some support to Baugh’s claim that the Ferrell car hit the Todd trailer before Baugh hit Ferrell’s car. Todd claims that because of a conflict between Baugh’s testimony and that of the plaintiffs, the latter cannot rely upon it. Todd’s theory is that the plaintiffs are bound by their own testimony as judicial admissions. McCormick on Evidence, § 243, pp. 513-516, sets forth three different theories which are to be found in the cases dealing with this question and expresses a preference for the theory which is most liberal to the party seeking to make use of evidence-at variance with his own.

We do not think that Todd’s objection was seasonably raised and therefore does not call for decision on its merit or for choice between the three theories. It is true that Baugh, who was called by the Ferrells as an adverse witness, testified before any of the plaintiffs had taken the stand, so that there was no basis at that time to object to his testimony as being at variance with that of the plaintiffs. However, after the plaintiffs had testified, there was no motion to strike, nor was there any request for instructions to disregard his testimony because of the alleged conflict, nor was there any exception to the charge of the trial court which left the determination of all the facts relating to negligence to the jury. Evidence which may be open to objection, but which comes in without objection has the force and effect of proper evidence.

J. A. Laporte Corporation v. Penn.-Dixie Cement Corporation, 164 Md. 642 , 165 A. 195 , 168 A. 844 ; E. F. Enoch Co. v. Johnson, 183 Md. 326 , 37 A. 2d 901 ; Chesapeake Brewing Co. v. Goldberg, 107 Md. 485 , 69 A. 37 . Since no point was raised with regard to the admissibility of this evidence or to its being entitled to consideration in the trial court, the point cannot be raised for the first time on appeal to this Court. See Rule 9 of our former Appeals Rules in force when this case was tried and the appeal taken and Rule ⁵⁸¹ 885 of our present Maryland Rules, which is somewhat more liberal in terms than our former Rule 9. An analysis of Baugh’s testimony will show, however, that it is of very slight probative value.

It is so self-contradictory as to be worthless as to how the accident happened. His claim that Todd swung out into the northbound lane amounts to no more than that a part of the Todd rig had gone over the center line and does not show that the tractor-trailer had vacated the lane ahead of