Waltzinger v. Birsner

Collins, J., delivered the opinion of the Court. Here are appeals from judgments entered in favor of the appellees, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle, and against the appellants, August F. Waltzinger and Helen M. Waltzinger, in a trial before the court and a jury, for injuries sustained in an accident caused by the al ¹¹¹ leged negligence of the appellants in the operation, management, and control of their automobile. Loma W. Tuttle, 81 years of age, one of the appellees and the mother of one of the appellants, August F. Waltzinger, on July 15, 1954, was living at a nursing home known as College Manor. She had been living for about ten months each year with her daughter in New York and spent about two months each year with the appellants.

She came to visit the appellants in March, 1954. After she had been there about six weeks it was necessary for the appellants to take a business trip so they put Mrs. Tuttle in that nursing home. Mr. Waltzinger testified that prior to July 15, 1954, he had been sending his mother, at first $70.00, then $80.00, and finally $100.00 per month for her support. However, she was “very much in charge of her own affairs”.

After the accident she received some money from her husband, from whom she was apparently separated. Mr. Waltzinger also had helped Mrs. Connor “out with money” at various times before the accident. Testimony was offered that, prior to the accident, Mrs. Tuttle was admitted to Mercy Hospital in October, 1953. On October 25th she seemed confused and on November 7, 1953, from time to time she presented signs of senility.

She was a charming old lady, moderately forgetful, on the whole remarkably well preserved, oriented as to time and place, exceedingly well groomed, and cooperative and interested in several things, including boxing. The appellants owned a 1954 Cadillac sedan and on July 15, 1954, accompanied by the appellees, Lidie C. Birsner and Margaret H. Connor, sister and mother of the appellant Helen M. Waltzinger and visiting her at the time, went to a restaurant for dinner. After dinner at the restaurant those four drove out to see Mrs. Tuttle at the nursing home and drove into the driveway of the College Manor property. Mrs. Tuttle at that time was on the lawn and Mr. Waltzinger stopped the car on the left side of the driveway, which had a one percent down grade, thirty or forty feet from the office of the nursing home, located to the right of the car.

Mrs. Waltzinger had been seated on the right front seat of the car. When Mr. Waltzinger brought his mother to the car, Mrs. Waltz ¹¹² inger got out and helped Mrs. Tuttle into the right front seat and then closed the door and got into the right rear seat. At that time Mr. Waltzinger walked to the office in order to report that he was taking his mother for a ride. As he was returning to the car he saw a Miss Wilson, whom he had taken for rides on previous occasions, looking with “longing •eyes” at the car.

He asked her if she would like to take a ride. When she agreed Mr. Waltzinger told her to get into the front seat. Whether Mr. Waltzinger was then in the car when he invited Miss Wilson to get in and then got out is very doubtful. However, there was testimony that he was ■on the ground to the left of the car when Miss Wilson got in the left front seat.

He then went to the office to report that he was also taking Miss Wilson with him. At that time Mrs. Tuttle was seated on the right front seat, Miss Wilson on the left front seat behind the steering wheel, Mrs. Waltzinger on the right back seat, Mrs. Connor in the center ■of the rear seat, and Mrs. Birsner on the left rear seat. Mrs. Waltzinger testified that she believed she said to Miss Wilson: “Move over and make room for Mr. Waltzinger.” While Mr. Waltzinger was in the building the car started to “creep” and went slowly down the driveway. Mrs. Waltzinger opened the right back door in order to get in the driver’s seat and pull up the brake, as she could not climb over the back seat with the two passengers in front.

As she put one foot down, ready to step out, the automobile started “real fast” and Mrs. Waltzinger was dropped on the ground. Mr. Waltzinger, in the office, heard screams and rushed out. The car then “flashed” down the slight grade with his wife “either running behind it ■or somewhere in the vicinity”. The car struck posts on the left side of the driveway and stopped in a depression against .a tree 75 to 100 feet from the place it started.

The automobile was “pretty much wrecked”. As a result injuries were sustained by the appellees. From judgments entered for them, the appellants appeal. It is contended that there was no legally sufficient evidence showing that the proximate cause of the accident was attributable to any negligence on the part of the appellants, or either of them, and that their demurrer prayer should have been granted. ¹¹³ The appellants also specifically objected to the following part of Instruction No. 3 given to the jury, on the ground that there was no legally sufficient evidence that such were the facts: “The Court instructs the jury that if it finds from the evidence that on July 15, 1954, the plaintiffs as invited guests of the defendants, August F. Waltzinger and Helen M. Waltzinger, were seated in their automobile which was standing on a one per cent down grade upon a driveway of the College Manor Home in Lutherville, Baltimore County; and if the jury further finds that the defendant, August F. Waltzinger, without stopping the engine of the automobile or moving the selector lever from its position for forward movement, permitted another person whom he had invited to ride in the automobile to enter it through said door, and that the defendant, August F. Waltzinger, left the automobile with no one in control of it; and if the jury further finds that, while he was away from the automobile, it was caused, without any act or intervention on the part of the plaintiffs, to move forward upon the driveway with increasing speed and to strike guard posts along the roadway and finally to leave the roadway and collide with a tree, and that the plaintiffs thereby sustained injuries, without any want of ordinary care and prudence on the part of the plaintiffs directly contributing to produce their injuries, then the verdicts of the jury must be for the plaintiffs, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle.” Of course, in deciding whether the demurrer prayer should have been granted, this Court should resolve all conflicts in the evidence in favor of the appellees, and should assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom, which tend to support the appellees’ right to recover.

Baer Bros., Inc. v. Keller, 208 Md. 556, 558 , 119 A. 2d 410 . We will therefore recite the evidence in a light most favorable to the appellees. ¹¹⁴ Mrs. Tuttle and Miss Wilson were not able to testify in the case. There was testimony that the automobile had hydra-matic transmission, which was controlled by a gear selector lever located directly under the steering wheel. This lever had the positions of neutral, reverse, low, and for forward motion, two drive positions.

It was moved by reaching under the wheel, picking the lever up and pulling it into the new position. The accelerator to feed the gas was on the floor and Mr. Waltzinger admitted that it was quite easy in moving over to hit it. The Cadillac owner’s manual, offered in evidence, provided in part: “Your Cadillac Hydra-Matic drive will provide safe parking on hills or steep inclines. Simply turn the ignition key ‘Off’ when the selector lever is in ‘Dr’ or ‘Lo’.

Then raise and move the selector lever to ‘R’. As an additional safety measure, apply the hand brake and toe in the front wheels to the curb. * * * To prevent a parked car from rolling on slight grades it is well to form the habit of setting the hand brake which is conveniently located to the left of the steering column. To apply this brake, merely step on the brake pedal and pull the hand brake handle straight back. It locks automatically.

A ‘tell-tale’ light lights up when the hand brake and the ignition are on. To release the brake, rotate the handle left, and it will return to its normal position. When the handle pulls out more than five inches it should be adjusted by your Cadillac Dealer. When parking on hills, turn the wheels toward the curb, place the Hydramatic selector lever in ‘R’ Reverse, which locks the transmission, and apply the hand brake.” Mr. Waltzinger testified that he did . not' know, when he left the passengers in the automobile, whether he had the automobile brake on or in what position the gear selector was.

He also admitted that it would be highly unlikely that Miss Wilson could have started the engine just in the act of moving over on the seat. He made the following answers to the following questions. “Q. Well, isn’t this what probably hap ¹¹⁵ pened, that you left your selector gear lever in drive position with the engine running and the brake not set, and, as Miss Wilson moved over, she touched the accelerator which caused the car to lurch forward? A. Well, certainly that set of events must have been there because otherwise the car wouldn’t have gone flying by me the way it did. Q. So that is probably what happened in your opinion, is that correct, what I suggested in the previous question?

A. Probably.” He admitted that, if the automobile was left in gear without the brake on, and someone touched the accelerator, the car would move. He also admitted that he did not take the keys out of the car. A Baltimore County Police officer testified that, when he arrived at the scene, he talked to Mr. Waltzinger and wrote down what he told him. He said the information in his official report came from Mr. Waltzinger.

That report offered in evidence, without objection, states in part that Mr. Waltzinger “had parked his car with the motor running and in drive on College Manor property with four women seated in the car and a Miss Virginia Appleton Wilson F/W, 72, of College Manor Home for the Aged, was getting in the car from the driver’s side and was sliding over to the middle of the car and apparently hit the gas pedal of the auto and sending it about 100 feet up the driveway and going down a slight embankment taking about four poles and then coming to a stop against a tree. Mr. Waltzinger was inside the building at the time the car started moving.” Code, 1951, Article 66)4, Section 212, provides: “(Unattended Motor Vehicle.) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway.” Appellants contend that the automobile was not unattended when Mr. Waltzinger went into the office. This Court, in interpreting the above Section, said in Lustbader v. Traders Delivery Co., 193 Md. 433, 439 , 67 A. 2d 237 : “The statute does not define ‘unattended’, but a reasonable interpretation is that it ¹¹⁶ means without any one present who is competent to prevent any of the probable dangers to the public. These dangers are different under different circumstances.” It could hardly be contended that either Miss Wilson or Mrs. Tuttle, who were seated on the front seat, were competent to stop the automobile.

It is evident that no one on the back seat was able to stop the car because Mrs. Waltzinger attempted to do so, but failed. According to Mr. Waltzinger’s statement to the police, he did not comply with the standard set by Section 212, supra. Though it may be questioned whether this statute is applicable to a private roadway, we think that it states correctly the standard of due care which should be adhered to in a case such as this involving a roadway which visitors to a large convalescent home or home for the aged are invited to use. Appellants rely on the following quotation from Shafer v. State, 171 Md. 506, 514, 516 , 189 A. 273 , where Judge Bond said: “And ‘in matters of proof we are not justified in inferring from mere possibilities the existence of facts.’ Balto. & O. R. Co. v. State, use of Savington, 71 Md. 590, 599 , 18 A. 969, 971 ; Culler v. Standard Oil Co., 127 Md. 405, 411 , 96 A. 558 .

Proof directs a selection from among possibilities. Regent Realty Co. v. Ford, 157 Md. 514, 521 , 146 A. 457 ; Realty & Mtge. Co. v. Ulrich, 164 Md. 666, 670 , 165 A. 708 . * * * ‘There must be proof of the essential facts to fix liability upon a party charged with the commission of a wrongful act; and even a scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendant will not justify the court in submitting the case to the jury. There must be, in a case like the present, some reasonable evidence of well defined acts of negligence, as the cause of the injury complained of.’ ” Mr. Waltzinger’s statement to the police, which was admitted into evidence without objection, (Chesapeake Co. v. Goldberg, 107 Md. 485, 489 , 69 A. 37 ), amounts to much more than a scintilla of evidence or a mere surmise of the facts set forth in the trial court’s Instruction No. 3, supra.

Acme Poultry Corp. v. Melville, 188 Md. 365, 372 , 53 A. 2d 1 ; Shelton v. State, 198 Md. 405, 411, 412 , 84 A. 2d 76 . It was said in American ¹¹⁷ Express Co. v. Terry, 126 Md. 254, 261 , 94 A. 1026 : “It is not per se negligence to leave an auto truck unattended in a public street. It is the duty of one who leaves a machine unattended in the public street to exercise such care as a person of ordinary prudence would exercise under the circumstances.” In reference to Code, 1951, Article 66½, Section 212, supra, it was said in Hochschild, Kohn & Co. v. Canoles, 193 Md. 276, 283 , 66 A. 2d 780 : “The driver of the appellant, who was in charge of the truck, permitted it to stand without stopping the motor, locking the ignition, and removing the key, and while his truck was upon a perceptible grade, he not only did not effectively set the brake, but there is considerable doubt whether his statement, that he turned the front wheels slightly to the curb, showed a sufficient compliance with the statute. The purpose of Section 192 [now Section 212] was either to prevent some unauthorized person from starting a car or to prevent the start of a car by gravity.

In either case the object was the protection of the public. The result was to be accomplished not only by turning off the motor and locking the ignition and taking the key away, which would make it difficult for anyone except a mechanic to start the car, but also by the provision that the brakes must be set and the wheels turned to the curb, so that if the car, for any reason, should start of its own accord, it would strike the curb and this would operate as a brake or means of preventing any further motion.” Here, although apparently there was no curb along this driveway, there were posts set at close intervals against which the car could have been parked. See Storey v. Parker (Ct. of App. of La., 1st Cir.), 13 So. 2d 88 , where it was held that the direct and proximate cause of injury to a pedestrian, who was run over by an unoccupied automobile equipped with hydro-matic drive, was the action of the motorist in leaving it at a service station without setting the brake, and with the motor running, and the control lever in high. See 16 A. L. R. 2d 983 for cases holding that one leaving a parked, unattended automobile has the duty of securing it so that it will not move except by the intervention of some external cause not to be anticipated and guarded against.

See also 16 A. L. R. 2d 1010, ¹¹⁸ et seq., for liability of a defendant in leaving his automobile parked unattended with the motor running, which discusses the cases of American Express Co. v. Terry, supra, and Hochschild, Kohn & Co. v. Canoles, supra, among others. The appellants further except to Instruction No. 3, supra, on the ground that the testimony ignored the fact that the automobile was caused to be started by an intervening agency, and only excepts the plaintiffs themselves, and that there was nothing in the instruction as to the fact that the automobile was started by an intervening agency and not by either of the defendants. For the same reason, they objected to Instruction No. 4, which follows: “The Court instructs the jury that if it finds from the evidence that the plaintiffs, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle were injured by reason of the concurrent or successive negligence on the part of the defendants, August F. Waltzinger and Helen M. Waltzinger, and on the part of Miss Virginia A. AVilson, another invited guest in the automobile of the defendants, and that the negligence of each of these persons was a contributing proximate cause of the injuries to the plaintiffs, then all of such negligent persons, Mr. and Mrs. Waltzinger and Miss Wilson, are jointly and separately liable for any injuries proximately resulting from their joint negligence. It is no defense for one or more of such negligent persons to show that another of them was also negligent, that is to say, for the Waltzingers to show that Miss Wilson was also negligent.

The degree or proportion of negligence which may b'e attributed to each of such persons guilty of negligence is not to be considered by the jury in arriving at its verdict.” Of course, the court’s charge to the jury must be considered as a whole. West v. Belle Isle