Short v. Wells
| Decision Date | 05 April 1968 |
| Docket Number | No. 171,171 |
| Citation | 240 A.2d 224,249 Md. 491 |
| Parties | Myrtle Wells SHORT, Adm'x, etc., v. Vileetus E. WELLS and Earl E. Nibblett, Adm'rs of the Estate of Benjamin Thomas Wells. |
| Court | Maryland Court of Appeals |
Morton J. Owrutsky, Salisbury, (Herman E. Perdue, Salisbury, on the brief) for appellants.
Sanford & Bolte, Berlin, and Porter, Cullen & Clark, Salisbury, for appellees.
Before HAMMOND, C. J., and HORNEY, MARBURY, McWILLIAMS and FINAN, JJ.
The question presented by the appeal in this tort action-arising out of the impact that followed when an automobile skidded across a highway and struck a utility pole-is whether the trial court correctly held that there was insufficient evidence of negligence on the part of the driver to warrant submission of the case to the jury. We think the court erred.
The plaintiff-appellant is Myrtle Wells Short, as administratrix of the estate of Russell William Wells, the surviving widower of Nora Elizabeth Wells, deceased; as next friend of Thomas McFadden Wells and Ida Mae Wells, the minor children of Nora Elizabeth Wells, deceased; and as administratrix d. b. n. of the estate of Nora Elizabeth Wells, deceased. The defendants-appellees are Vileetus E. Wells and Earl E. Nibblett, administrators of the estate of Benjamin Thomas Wells, deceased.
The accident occurred in the early evening of July 5, 1965, on State Route 353, approximately two miles north of Pittsville in Wicomico County. The persons involved in the accident had been to the home of friends near Pittsville and were on their way home on account of an approaching thunderstorm. The automobile was driven by Benjamin Thomas Wells (Benjamin). A friend, Helen Beach Petenbirnk, was riding on the front seat with the driver. Nora Elizabeth Wells (Nora) and Russell William Wells (Russell), her husband and a brother of Benjamin, were riding in the back seat. Benjamin and Nora were killed. Russell was seriously injured. Helen was slightly injured. Whiled taking a curve on the east side of the roadway, the automobile went out of control, ran off the west side of the road, skidded sideways for a distance of 286 feet, struck a utility pole and overturned on the grass strip adjacent to the shoulder of the road. The concrete-surfaced roadway was 15 feet in width, with 4-foot macadam shoulders and 6-foot grass strips on each side.
At the trial, the plaintiff called all of the witnesses, except the two doctors who testified with regard to the intoxication of the persons who were killed, and also introduced in evidence without objection the deposition of Russell taken by the defendants prior to his suicide sometime later.
The investigation officer (Trooper Van B. Muir, Jr.), besides relating the details of his investigation as to where and how the accident happened, testified that it was raining at the time of the accident; that the road was wet; and that the tires on the automobile appeared to have 'little tread' with 'little gripping tendency.' His investigation also disclosed a pint bottle of whiskey in the automobile with approximately two 'shots' missing, some cans of beer lying around the vehicle and an alcoholic odor about the bodies of Benjamin and Nora.
A friend of the parties (Madelyn Donoway) testified that they were at the Donoway home for approximately twenty minutes during which time Russell played the guitar and sang a song with Nora. While they were there no one but the witness had consumed any alcoholic beverage. She broke the seal on a pint of whiskey that Benjamin handed her and consumed a part of its contents. She saw nothing wrong with the condition or driving of Benjamin or any of his passengers.
The passenger in the front seat (Helen Beach Petenbirnk), in testifying as to the operation of the automobile on the date of the accident, stated that she did not see Benjamin have anything to drink either at the Donoways or while driving; that prior to the accident she saw nothing wrong with his driving; that she heard Nora tell Russell to ask Banjamin to slow down; that Nora was 'always afraid' and that 'if you barely just stepped on the gas she would always yell you were rolling too fast'; and that about the time Russell told Benjamin to slow down the automobile went into a spin. On cross examination, she testified that all four of them had a drink before going to the Donoways but had nothing in the automobile or while they were visiting; that, although she had not looked at the speedometer on the return trip, she thought the automobile was operated at a reasonable rate of speed; and that neither Benjamin nor Nora appeared to be under the influence of alcohol.
The pertinent parts of the deposition of Russell, taken at the instance of the defendants, were to the effect that if his brother had been drinking it was not noticeable; that he had not seen him drink anything during the time he was with him; that he was unaware of any whiskey or beer in the automobile; that immediately prior to the accident and before reaching the curve his wife told him to 'tell Ben to slow down'; that in doing so, he looked at the speedometer; that it was registering a speed of 80 m. p. h.; that his brother 'slowed down a little bit' to what he estimated was a speed of 70 m. p. h. just prior to the accident; that the vehicle went out of control and into a skid; that it had been goind 'swift' before the complaint of his wife but had been driven all right prior to that time; and that if his brother had been speeding generally that day he would not have ridden with him.
The defendants called two witnesses (Dr. Philip A. Insley, a substitute medical examiner for the county, and Dr. Henry C. Freimuth, a toxicologist in the office of the chief medical examiner for the state). Dr. Insley testified that as a part of his official duties, he submitted specimens of spinal fluid taken from the bodies of Nora and Benjamin to the state medical department and that the specimens indicated that both were intoxicated. Dr. Freimuth stated that he had run tests on the specimens submitted by the county medical department and found that they contained .28% and .25% alcohol, respectively, and that in his opinion one whose spinal fluid showed that amount of alcohol was under the influence and probably drunk.
The other evidence produced by the plaintiff as to the work habits of Russell and Nora and as to the change in the mental state of Russell following the accident is not relevant to the question presented by the appeal.
At the close of all the evidence, the trial court, on the theory that there was insufficient evidence of negligence, granted the motion of the defendants for a directed verdict.
The record indicates that the court was of the opinion that there was such conflict in the testimony of the witnesses the plaintiff had called-the showing of negligence on the one hand and the showing of nonnegligence on the other-as to come within the rule of Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 195 A.2d 717 (1963), to the effect that the burden of the plaintiff to prove the negligence of the defendant and that it was...
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