McLhinney v. Lansdell Corp. of Md.

• Decision Date: 02 June 1969
• Docket Number: No. 274,274
• Citation: 254 A.2d 177,254 Md. 7
• Parties: James C. McLHINNEY et ux. v. LANSDELL CORPORATION OF MARYLAND et al.
• Court: Maryland Court of Appeals

Page 7

254 Md. 7

254 A.2d 177

James C. McLHINNEY et ux. v. LANSDELL CORPORATION OF MARYLAND et al.

No. 274.

Court of Appeals of Maryland.

June 2, 1969.

Marvin Ellin, Baltimore (Leonard Passano Baker, Jr., Baltimore, on the brief), for appellants.

Jeffrey B. Smith, Baltimore (Theodore B. Cornblatt and Smith, Somerville & Case, Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

MARBURY, Judge.

The appellants, James C. McLhinney and his wife Shirley J. McLhinney, brought suit on July 27, 1967, in the Circuit Court for Howard County against John C. Hafner, Sr. and the Lansdell Corporation of Maryland (Lansdell) for alleged personal injuries and loss of consortium sustained as the result of a collision between a tractor trailer and a fire engine on which appellant James C. McLhinney was riding. At the conclusion of the plaintiffs' case, the lower court granted the defendants' motion for a directed verdict on the grounds that the plaintiffs had failed to establish a prima facie case of negligence and further, they had failed to connect either Lansdell or Hafner with the accident. After the lower court denied a motion for a new trial and entered judgment against the plaintiffs for costs, this appeal was taken.

Shortly before 5:00 a.m. on April 20, 1967, the plaintiff James McLhinney, a fireman, was aboard a fire engine traveling south on Gay Street in Baltimore City responding to a fire alarm. The appellants' evidence indicated that the engine was proceeding at speed of approximately 25 miles per hour and that its siren, lights, and bell were in full operation. The driver of the engine, Charney L. Harris, testified that at approximately 5:00 a.m. at the intersection of Lombard and Gay Streets he collided with a tractor trailer traveling east on Lombard Street. He stated that as he approached the intersection he slowed to approximately 18-20 miles per hour because he knew he might have to make a turn onto Lombard Street or avoid other fire fighting apparatus coming from that street. Although the intersection where the accident occurred was controlled by automatic traffic signals, Mr. Harris was unable to state whether at the time he entered the intersection the light was then green for traffic approaching from his direction. He had last looked at the light when his vehicle was some 200 feet from the intersection, and at that time the light was green for traffic traveling on Gay Street.

The appellants produced no testimony that the appellees or either of them, owned or operated the tractor trailer which collided with the fire engine. Further, the appellants produced no testimony at all regarding the existence of any agency relationship between the appellees. However, at the trial, counsel for the appellees admitted in his opening statement the following: (1) Hafner's operation of the tractor trailer, and his involvement in the accident; (2) Hafner's employment by the Lansdell Corporation at the time of the accident; and (3) the fact that when the accident occurred, Hafner was en route to pick up a load of 'tar or some type of oil.'

At the conclusion of the appellants' case the appellees' attorney moved for a directed verdict on the ground that 'there is no legally sufficient evidence to show a violation of any duty which might have been owing from the Defendants to the Plaintiffs,' and also that 'the Plaintiff has not established whose vehicle it was with which the fire truck collided * * *.' Appellants' attorney asked the trial court to allow him to supply the additional testimony, but permission was denied and the court directed a verdict in the appellees' favor. From the unfavorable judgment the McLhinneys appealed to this Court.

On appeal, two questions are presented: (1) may a plaintiff rely on a defendant's failure to deny in the pleadings plaintiff's allegation of the ownership of the motor vehicle and upon the admissions of the defendant's counsel in his opening statement that the individual defendant was the driver of the corporate defendant's vehicle; and (2) did the appellants produce evidence of the appellees' negligence sufficient to warrant submitting the case to the jury. We conclude that both questions must be answered in the affirmative and reverse the decision of the lower court and remand the case for a new trial.

Prior the presentation of evidence by the plaintiffs and after the plaintiffs' counsel had made an opening statement, the defendants' counsel exercised his privilege of making an opening statement. Pertinent parts of his remarks were as follows:

'Mr. Hafner is fifty-four years of age; he has been driving trucks since 1936; he has driven all sorts of rigs. He is a married man and as I say, his wife is seated in the Court. He has two children, grown children. He lives in Howard County and he has for several years; before that he lived in Anne Arundel County and before that in Baltimore County. He no longer works for Lansdell Corporation; he worked for them for six years; he worked for them for a period of time after this accident and he left only to obtain a better position and he left with a very good letter of recommendation as he will testify. Mr. Hafner, I believe you will have an opportunity to observe him on the stand, is not a hot-rod kid; he's not a joy rider; he's not a man that runs traffic signals.

'This happened, Members of the Jury, at four-forty-five or approximately four-forty-five A. M. while it was still dark on the morning of April the 26th, 1967. Mr. Hafner had picked up his rig which for your information was a tractor-trailer, a tanker, it's a tank trailer, and he was going to Humble Oil and Refining Company to pick up a load of tar or some type of oil, i'm not familiar with the process too much. He was traveling east on Lombard Street which as has been stated is a one-way street with four lanes. He was traveling in the second lane to the right or from the south. He approached the intersection; he was approximately a half block away and as is normal with any conscientious professional driver he noted the traffic signal and at that time it was green. And that light remained green until he went into the intersection, and when he last saw it and last could visibly see it as he went under the light, it was green.

'And, Members of the Jury, the point of impact between these two vehicles was just ahead of the rear and wheels on this trailer and the accident happened almost directly in the center of the intersection so that the large portion of the rig was out of the intersection or just about out of it when this happened. His windows were up; it was a chilly morning; we have the weather report which we will offer in evidence. He had a radio on, a radio in the truck, but it was not on, and this was an empty tractor trailer tanker and it does make a certain amount of noise.'

The appellants urge that in light of these remarks the trial court should not have directed a verdict against them on the basis that they had failed to establish Hafner's involvement in the accident and Lansdell's ownership of the vehicle. We agree that appellees' counsel had removed...