Zeller v. Mayson

Mitchell, J., delivered the opinion of the Court. This case embraces two appeals in one record from the Court of Common Pleas of Baltimore City. On the 23rd day of February, 1934, Sylvia Mayson, who at that time was employed as an entertainer at the Oasis Cabaret, a public resort located at Frederick and Baltimore Streets, in the City of Baltimore, having completed her duties for the night’s entertainment, at about two A. M. left the cabaret in company with Patricia Lamonte, who was a coemployee, and a Mr. Shipley, a guest of the cabaret. In front of the establishment the party hailed a taxicab driven by the defendant Rubenstein, trading as the Peerless Cab, Inc.; and the driver was instructed first to take the party to 1912 North Castle Street, which was the home of the plaintiff.

Upon reaching this point, however, ⁶⁶⁶ and without leaving the taxicab, they continued their journey to the Midway Tavern, another public resort, located in the southwest section of the city. On the journey between the two resorts, Mr. Shipley and the two other passengers occupied the rear seat; the driver being alone on the front seat. Arriving at the Midway Tavern, they remained for a short while, leaving the latter resort around 3.30 A. M.; and upon their return, Miss Lamonte occupied the front seat of the cab, the other two passengers continuing to occupy the rear seat. The course of the return trip took them to Baltimore Street and then eastwardly on Baltimore Street; and when reaching the intersection of Liberty and Baltimore Streets, the cab collided with a dairy truck belonging to the Western Maryland Dairy Corporation, also known as the FairfieldWestern Maryland Dairy, approaching from the north and driven by Gustav B. Zeller, its employee.

The evidence adduced by the respective parties as to the speed at which they were driving at the time of the accident, as well as to the distance from the point of intersection at which each observed the other approaching the intersection, is, as usual in such cases, conflicting; but the physical facts adduced by the testimony of the two drivers located the point of collision at approximately the center of the intersection of the two streets, although it is impossible, from the evidence, to determine which motor vehicle first reached and entered the street intersection. Both the taxicab and truck were considerably damaged, and both vehicles came to a stop at or near the southeast corner of the intersection of the two streets. As a result of the collision, the plaintiff received extensive lacerations over the forehead, numerous other lacerations over her entire face and jaw, injury to her teeth, bruises on the left side of the neck, and serious bruises about her body, especially her right hand, knees, and ankles. By virtue of these injuries she was confined in Mercy Hospital for nearly a week, and at other places for nearly three and a half months.

She also suffered from in ⁶⁶⁷ somnia, and was under the care of her physician for five and a half months. Miss Lamonte was also injured. The record contains fourteen exceptions, thirteen of which deal with rulings on evidence, and the fourteenth with the ruling of the trial court on the prayer. All of the exceptions as to rulings on evidence were abandoned in this court except Nos. 1 and 11; and these will be dealt with in their order.

At the conclusion of the plaintiff’s testimony, and after she had exhibited scars on her face, neck, and forehead, her counsel offered to exhibit to the jury the injuries to her knees, to which formal objection was made by the defendants Zeller and the Dairy Corporation. Counsel for plaintiff stated that the reason for his desire to have his client exhibit her knees was because of her occupation, she having tesified that her vocation was that of an entertainer, dancer, and singer, and the disfiguration of her knees vitally affecting her in this respect; and the court stated, in explanation of its ruling, that while ordinarily such scars upon the knees of a plaintiff would not be an element of significance, in view of the plaintiff’s occupation the objection was overruled. Thereupon the plaintiff was permitted to exhibit her knees to the jury. The admission of this form of evidence, it must be conceded, was entirely in the discretion of the trial court, and we can see no impropriety or error in its ruling.

The plaintiff had testified that she had two brush burn wounds on her knees, the scars of which remained. The exhibition of her knees merely corroborated her oral testimony in this respect, and, if anything, was additional evidence incumbent upon her to meet the burden of proof. In Chicago & A. R. Co. v. Clausen, 173 Ill. 100 , 50 N. E. 680, 682 , the plaintiff was injured by the sudden starting of a railroad train on which he was a passenger, while he was attempting to alight therefrom. At the trial, over objection, he was permitted to exhibit to the jury the rupture alleged to have been a consequence of the accident.

Upon appeal, the Supreme Court of Illinois, in affirming the action of the lower court, said: “It is primarily within ⁶⁶⁸ the discretion of the trial court to permit an injury to be shown to the jury for any legitimate and proper purpose that will aid in the determination of the issue, and this is conceded by counsel; but it is contended that in this case there was an abuse of discretion, because the existence of the rupture, and the nature and extent of it, were not controverted by' the defendant; and this was stated to the court when it was proposed to make the exhibition. It is questionable whether the exhibition was proper under the circumstances, and whether its only effect would not be to excite feeling, rather than to aid in settling any disputed question; but we do not feel prepared to say that such was the case, or that there was a clear abuse of the discretion confided to the . trial court.” And in Wagner v. Chicago, R. I. & P. Ry Co., 277 Ill. 114, 115 , N. E. 201, 203, the same court said: “Whether one who is injured may exhibit an injured member to the jury is primarily in the discretion of the trial court, and it is properly exercised in any case where the personal view will aid the jury in understanding the evidence.” See, also, 52 A. L. R. 1396. The general principle laid down in Abbott’s Civil Trials, p. 393, is concisely stated as follows: “The Court may allow a witness testifying in his own behalf respecting injuries to his person, to exhibit the injured part to the jury. * * * The propriety of the practice cannot be questioned on the ground that the exhibition would tend to unduly excite the sympathy of the jury by reason of the youth and comeliness of the witness, who is a female. Omaha St. Ry.

Co. v. Emminger, 57 Neb. 240 , 77 N. W. 675 .” And this principle is approved in 1 Greenleaf on Evidence (16th Ed.) p. 31, secs. 13 (f) and 13 (g); and 2 Wigmore on Evidence, secs. 1158, .1159. The eleventh exception raises the question as to the admissibility of evidence showing the prior conviction of Zeller, the driver of the dairy truck, in the Traffic Court of Baltimore City, for failing to give the right of way upon the occasion of the accident which forms the basis of the instant case. The witness Zeller having testified that he had given evidence in the traffic court in regard to ⁶⁶⁹ this same accident, his entire testimony in that court was read to him, and he corrected one statement in it relating to the distance that he first saw the cab coming down Baltimore Street. He was then asked what disposition was made of the case in the traffic court, which was objected to, and the court said: “In so far as this witness alone is concerned, the objection is overruled.” The witness thereupon answered that he was fined twenty-five dollars and costs for failing to give the right of way.

In the trial of a civil suit for damages arising from an accident, it is within the discretion of the court to permit testimony to be given by a party to the case as to the disposition of criminal charges against him growing out of the same accident; and its action will not be disturbed unless it clearly appears to have been an abuse of such discretion. Nelson v. Seiler, 154 Md. 63 , 139 A. 564 ; General Exchange Ins. Corporation v. Sherby, 165 Md. 1 , 165 A. 809 . Such testimony has been held to be admissible under some circumstances, not in order that the civil jury may adopt the judgment of a criminal tribunal in lieu of their own proper determination of the controverted facts, but as tending to impair the credibility of the evidence given by the witness individually with respect to a matter germane to the question at issue, which was also in issue at the hearing on the criminal charge.

The jury should be made aware of the relative importance to be attached to such evidence; and in this case the court’s qualified admission of the testimony was followed up by the submission and granting of a prayer, on behalf of the defendants Zeller and Dairy Corporation, who alone might have been injured by such evidence, in which the jury were instructed that the conviction of Zeller in the traffic court was not controlling in the civil case on trial. They therefore received this evidence properly safeguarded, and were at liberty to consider it for the limited purpose for which it was admitted. In Mattingly v. Montgomery, 106 Md. 461 , 68 A.