Fagiolo v. Mencarini, 381

• Decision Date: 10 November 1964
• Docket Number: No. 381,381
• Citation: 236 Md. 437,204 A.2d 560
• Parties: Romeo E. FAGIOLO et ux. v. Mario MENCARINI.
• Court: Maryland Court of Appeals

Page 437

236 Md. 437

204 A.2d 560

Romeo E. FAGIOLO et ux. v. Mario MENCARINI.

No. 381

Court of Appeals of Maryland.

Nov. 10, 1964.

Foster Wood, Washington, D. C. (Robert S. Bains, Silver Spring, on the brief), for appellants.

Hal C. B. Clagett, Upper Marlboro (Sasscer, Clagett & Powers, Upper Marlboro, on the brief), for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

PRESCOTT, Judge.

On this appeal, present counsel, who were not counsel below, have made an earnest and sincere effort, with a record which leaves them no chance of success, to change the defeat of their clients' claims below into victory here. (No reflection on trial counsel is intended. Lawyers cannot manufacture evidence.)

In the trial below, the court held that the Ohio Guest Statute, Ohio Revised Code § 4515.02, which requires a successful plaintiff-guest to establish, on the part of his host-operator, a higher degree of negligence than a failure to exercise ordinary care and caution under the circumstances, was applicable. Considerable space is consumed in the statements of fact in the briefs to show, on the one hand that appellants were, and on the other hand that they were not, guests of the appellee at the time of the injuries complained of. However, in the view that we take of the case, this contention of the appellants becomes purely academic; for we think the record fails to establish a prima facie case of primary negligence on the part of the appellee, even though the 'ordinary care and caution' test be applied.

After the conclusion of the plaintiffs' case below, the court granted a defense motion for a directed verdict; the propriety of this ruling and a subsidiary one on the admissibility, vel non, of certain evidence are the only questions presented for our determination.

The facts are few, and may be very briefly stated. The appellants and the appellee are of foreign extraction and friends of long standing. They, together with appellee's wife, took a motor trip to Chicago in an automobile owned by the appellee. On the return trip on August 26, 1961, while appellee was driving on the Ohio Turnpike at about the speed limit (which one witness thought was 65 miles per hour), the car suddenly went out of control, ran off the road, and overturned.

The only testimony produced which appertained in any manner of possible negligence on appellee's part follows: Romeo E. Fagiolo, one of the appellants, was riding on the front seat beside the operator. He was 'looking at the map because we were getting ready to stop. And suddenly I heard a loud noise and the car went out--the car lost control [sic], and after that I don't remember anything.' After hearing the noise, he 'saw the hood up in the air and that is all' he remembered. He later had a conversation with appellee, who told him that after appellee came back home appellee went to see a 'service man' in a gas station, and while appellee was telling the service man 'about the tire,' the service man 'threw his hands up in the air.' The witness had not heard any peculiar noises about the car before the 'loud noise,' and he had not made any objections to the appellee as to the manner in which he was driving.

Rosina S. Fagiolo, the other appellant, stated: 'Well, the accident was, I was riding in the car and all at once I heard a blast and I felt it go up in the air and I don't remember nothing more.'

Romeo J. Fagiolo, appellants' son, testified that after the accident the appellee related to him the events that led up to it. Appellee explained to the witness that 'he had been hearing a whistle, and that on several occasions he had even moved his head closer to the window to determine the origin of the noise.' Thereafter, appellee 'heard this noise, or an explosion, in which the car had a tendency in the front end to rise or have a lift, and at that point on there was no control [over the car].' In another conversation, appellee 'made the notation that perhaps he should have looked into this noise more closely, or that he--that the noise could have avoided the accident [sic].' This is all of the evidence offered to establish primary negligence.

In the trial court's statement to the jury in ruling on the motion for a directed verdict, the judge said the right rear tire had apparently blown out, but there is no evidence included in the record extract, except the casual remark of one witness that appellee had told someone about 'the blow out that he had on this tire, relative thereto.'

This is about as 'thin' an attempt to show primary negligence as we have ever had presented to us, or of which we have heard. There isn't the slightest proof as to what, in fact, caused the car to go out of control, or that the appellee had any prior knowledge of any defect in his automobile. Nor is this a case where a driver, without any explanation, suddenly runs his motor vehicle off the road, causing injury to a...