Abraham v. Moler

• Decision Date: 10 April 1969
• Docket Number: No. 166,166
• Citation: 252 A.2d 68,253 Md. 215
• Parties: Sidney ABRAHAM et al. v. Lucretia C. MOLER.
• Court: Maryland Court of Appeals

Page 215

253 Md. 215

252 A.2d 68

Sidney ABRAHAM et al. v. Lucretia C. MOLER.

No. 166.

Court of Appeals of Maryland.

April 10, 1969.

Robert C. Heeney, Rockville, (Heeney, McAuliffe & McAuliffe, Rockville, on the brief) for appellants.

Jack S. May, Rockville, (Edward C. Donahue, William. A. Ehrmantraut and James P. Gleason, Rockville, on the brief) for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.

PER CURIAM.

Appellants seek the overthrow of a $100,000 judgment against them claiming it is excessive. They present also five additional questions. They contend the appellee (Mrs. Moler) failed to produce any affirmative evidence negating contributory negligence; they claim 'the verdict is contrary to the evidence;' a verdict in their favor should have been directed, they say, at the close of the evidence; they question the admissibility of the testimony of a medical witness; they say it was error to exclude the testimony of another of their witnesses. We incline to the belief, however, that the appeal reflects more the traumatic effect of the amount of the judgment upon them than any confidence they might have in the contentions they have advanced.

We think Judge Moorman, before whom, without a jury, the case was tried, had before him evidence which enabled him to find that on 25 February 1960, Mrs. Moler was a tenant of the appellants, who owned and operated the Barclay Apartments, ¹ where she resided, that, on 24 February, six and one-half inches of snow fell in the Bethesda-Chevy Chase area, that early on 25 February the snow piles on either side of the driveway in front of the entrance to the apartment house were from two to two and one-half feet high, that much of it melted during the day and drained across the driveway, that by 10:45 p. m. (25 February) the air temperature at ground level was from one to two degree below freezing, that Mrs. Moler had been brought home from a bingo game by friends at about 11:00 p. m., that entrance to the driveway, at that time, was denied her friends by improperly parked automobiles and what was left of the snow piles, making it necessary for her to walk from the street across the driveway to reach the front door of the apartment house, that in so doing she slipped on a patch of ice which she neither saw nor the presence of which she could reasonably have foreseen, that she was injured severely and that she is permanently disabled. He could have found also from the evidence that appellants knew, should have known or should have anticipated the dangerous condition and that they negligently failed to make the driveway safe by the application of salt, sand or some similar material.

In our consideration of this appeal we shall keep in mind Maryland Rule 886 a which enjoins us, when an action is tried without a jury, not to set aside the judgment of the trial judge on the evidence unless it is clearly erroneous, giving due regard to his opportunity to judge the credibility of the witnesses. Hamilton v. Smith, 242 Md. 599, 604-605, 219 A.2d 783 (1966). The weight of the evidence, of course, is for the trial judge to determine. Hall v. Morris, 213 Md. 396, 132 A.2d 113 (1957).

In respect of appellants' first contention we do not understand it to be the law that Mrs. Moler was obliged to introduce evidence specifically negating contributory negligence on her part. Contributory negligence is an affirmative defense which was available to appellants and they had the burden of proving not only that a reasonably prudent person would, in the circumstances, have taken certain precautions but also that Mrs. Moler failed to take those...