Ager v. Baltimore Transit Co.

Decision Date30 May 1957
Docket NumberNo. 161,161
PartiesVirginia AGER v. The BALTIMORE TRANSIT COMPANY et al.
CourtMaryland Court of Appeals

Amos I. Meyers and Robert S. Rody, Baltimore, for appellant.

J. Gilbert Prendergast, Baltimore (Edward O. Clarke, Jr. and Clark, Smith & Prendergast, Baltimore, on the brief), for Alan Fleischer et ux.

Hamilton O'Dunne, Baltimore (Patrick A. O'Doherty, Baltimore, on the brief), for Baltimore Transit.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

PRESCOTT, Judge.

The appellant has appealed from a judgment on a verdict in favor of the appellees in the Superior Court of Baltimore City. The case below was personal injury one, brought by the appellant, Virginia Ager, against the Baltimore Transit Company, Alan Fleischer and his wife, Rosa F. Fleischer. At the conclusion of the trial, the jury rendered a verdict in favor of the defendants, and from a judgment made absolute on the verdict, this appeal has been taken.

On May 11, 1954, about 3:30 in the afternoon, at the intersection of Liberty Heights Avenue and Cedardale Road, there was a collision between an eastbound street-car of the Baltimore Transit Company and an automobile driven by Rosa Fleischer. This automobile prior to the accident had been eastbound, but at the time of the collision it was in the act of attempting to make a lefthand turn to go north on Cedardale Road across the path of the oncoming streetcar. The track at the area in question is T-rail construction, except that at the street intersection of Cedardale Road, there is paving to allow traffic to cross the tracks, which otherwise would be impassable.

The plaintiff, who was employed as a domestic, maintains that she was seated as a passenger on the street-car, and, at the time of the collision, was bending over to recover a magazine that had slipped to the floor. She testified that she heard 'this awful noise' and 'fell' to the floor, striking her breast on the side of the car. She further testified that she felt pains in her body, but alighted from the car at the motor-man's request and boarded a following street-car; that upon being advised to give her name to the operator of the first street-car, she got off the second car to do so, but was prevented from doing so by a policeman; and that she experienced a 'real sharp' pain in her back and neck, and fainted. At least one of the appellees disputes the fact that the appellant was in fact a passenger on the street-car at the time of the accident, and both contend that she sustained no injury, even if she were such a passenger. This gives a brief outline of the facts. Others will be added as they seem pertinent in dealing with the numerous contentions of the appellant. As she has abandoned the first of these, we shall begin with the second and follow in accordance with her numbering.

II.

At the trial below, after the taking of testimony and the Court had delivered its charge, the jury retired to deliberate upon the issues in the case. After deliberating for some time, the jury returned to the jury-box and informed the judge that the members were unable to agree upon a verdict. Whereupon, the judge said, 'Well, then, it is incumbent upon me, and I do discharge you from further consideration of the case.' Immediately thereafter before any juror had left the jury-box, the clerk of the court, evidently having seen or heard some indication from the jury, stated: 'They have changed their minds now.' The Court then directed the jury to return to their chamber and deliberate further, which they did and, thereafter, returned a verdict in favor of the defendants. The appellant contends that as soon as the trial court made the above statement, the jury was rendered functus officio and was without further power or capacity to consider the case.

This Court at an early date, 1827, held that a verdict may be varied from by the jury, at any time before the verdict is recorded, Edelen v. Thompson, 2 Har. and G. 31, 34, Cf. Bronstein v. American Ice Co., 119 Md. 132, 138, 86 A. 131. But, ordinarily a jury should not be permitted to amend its verdict after it has been recorded and the jury dismissed. Harris v. Hipsley, 122 Md. 418, 89 A. 852; Gaither v. Wilmer, 71 Md. 361, 18 A. 590, 5 L.R.A. 756; Williams v. New York, etc., 153 Md. 102, 107, 137 A. 506. Of course, in this case there was no verdict at the time the jury was directed to resume deliberation, and the proposed discharge of the jury was never recorded. It was held in the case of Koontz v. Hammond, 62 Pa. 177, that, although the jury had been ordered discharged, they could still render a verdict as they had not separated or left the court room and their discharge had not been recorded. We think this was a proper ruling. It would seem a vain and futile holding to require the parties to undergo another lengthy trial, with its consequent expense and consumption of time, under the circumstances stated above. Cf. 66 A.L.R. 542. We find no error in the trial court's decision to have the jury consider the case further.

III.

Gordon L. Remlein, a member of the Baltimore City Fire Department, was produced as a witness for the transit company. His duties for about five years involved serving as an attendant on ambulances operated by the Department. He had completed, as a part of his preliminary training, a course in first aid to injured persons and presumably had been assisting such people at the scenes of accidents for five years. He arrived at the scene of the collision, and found the appellant lying on the ground as though she had fainted. He testified that when he looked at appellant, he touched her eyes whereupon she started to 'squint'. Over objection, he said that that indicated to him that she was feigning. He explained further that when he attempted to raise her eyelid she 'squinted' again and he could not open her eyelids at all. This indicated to him that she was resisting his attempts to open her eyes as an incident of his examination, although she appeared to be in a faint. He stated, also, that upon being revived, she walked to the ambulance without complaining of any injuries and later walked from the ambulance inside Provident Hospital.

The appellant argues that this permitted a lay witness, who did not possess the necessary professional qualifications, to render an opinion on a medical question. In the view we take of the matter, it will be unnecessary to consider generally the required qualifications of medical experts, who are persons possessing technical and peculiar knowledge in relation to matters with which the mass of mankind are supposed not to be acquainted. We do not feel that it required the professional skill of a medical doctor to qualify a witness to testify that one, who is supposed to be in a faint and 'squints' her eye when the eyelid is raised, is possibly feigning or resisting an attempt to open her eye. If this be not a matter of general knowledge, it certainly must be known by every ambulance attendant of five years experience, who has taken a course in first-aid to injured persons. There was no error here.

IV.

The appellant argues next that, as Dr. Mostwill a witness called by one of the appellees, on cross-examination stated that in his one examination of the appellant the presence of a disc injury could not be 'ruled out', this was sufficient to submit to the jury the issue of whether the appellant did in fact have a disc condition. The submission of such a question necessarily involved also the question of whether such disc condition, if it were found, was caused by the alleged torts of the appellees, a subject upon which no evidence was offered. It is clear from the evidence that the discovery of a disc injury is not an exact science, and it is unlike the discovery of fractures which usually are easily detected by X-Ray photographs. Thus, it is obvious that there is no basic difference between expressing a disc condition in terms of the 'possibility' of its existence, and stating that its 'presence' could not be ruled out. Unfortunately, it is the lot of all mortals to have it said of them after a physical examination that the presence of various maladies and imperfections 'cannot be ruled out'. However, to submit to the jury on the basis of such testimony, the question of whether such things actually exist and if they do, were they caused by the appellees' alleged torts would be an open invitation to substitute conjecture and speculation for testimony which can form a reasonable basis for a conclusion. In matters of proof, neither the Courts nor juries are justified in inferring from mere possibilities the existence of facts, and they cannot make mere conjecture or speculation the foundation of their verdicts.

Maryland cases, in accord with these well-recognized and established principles are all consistent in rejecting the proposition that the jury may form a judgment or conclusion on the basis of testimony which admits of mere possibilities and have stated in various cases that the test to be applied, whether the question involved is the existence of an injury or its cause, is reasonable probability or reasonable certainty. Baltimore & O. R. Co. v. State, 71 Md. 590, 18 A. 969; United Railways & Electric Co. v. Dean, 117 Md. 686, 84 A. 75; Abend v. Sieber, 161 Md. 645, 158 A. 63; Mount Royal Cab Co. v. Dolan, 166 Md. 581, 171 A. 854; Mangione v. Snead, 173 Md. 33, 195 A. 329; Langenfelder v. Jones, 178 Md. 421, 13 A.2d 623, 15 A.2d 422; Riley v. Naylor, 179 Md. 1, 16 A.2d 857; Finney v. Frevel, 183 Md. 355, 363, 37 A.2d 923; Brehm v. Lorenz, 206 Md. 500, 506, 112 A.2d 475.

The appellant cites the case of Langenfelder v. Thompson, 179 Md. 502, 20 A.2d 491, 136 A.L.R. 960. However, that case is clearly distinguishable from the immediate one. There, the basic question involved was the cause of the retroflexion and retroversion of the plaintiff's uterus. The appeal was taken...

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