Alston v. Forsythe

• Decision Date: 07 July 1961
• Docket Number: No. 310,310
• Citation: 226 Md. 121,172 A.2d 474
• Parties: Alex ALSTON v. Barthony FORSYTHE.
• Court: Maryland Court of Appeals

Page 121

226 Md. 121

172 A.2d 474

Alex ALSTON v. Barthony FORSYTHE.

No. 310.

Court of Appeals of Maryland.

July 7, 1961.

Herbert J. Hirsch, Baltimore (Manuel E. Lefko, Baltimore, on the brief), for appellant.

Frederick J. Green, Jr., Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellee.

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

BRUNE, Chief Judge.

The plaintiff-appellant, Alston, appeals from a judgment, entered upon the verdict of a jury, in favor of the defendant-appellee, Forsythe, in a suit for personal injuries sustained by Alston in an accident in which Alston, a pedestrian, was struck by an automobile owned and operated by Forsythe.

The accident happened after dark, but under lighting conditions described as good, at about 7:25 P. M. on November 8, 1958. The defendant was driving his car south on Broadway, in Baltimore, between Hoffman and Ellsworth Streets. Between these streets a railroad crosses Broadway at right angles by two parallel overhead bridges. Broadway is a divided highway--a boulevard street--with sidewalks along its eastern and western sides, and with north and southbound traffic lanes each 25 feet wide. These are separated north and south of the railroad bridges by grass plots 45 feet in width, having curbs on each side, and under the bridges by large stanchions, six to a side, so placed that one row forms a continuation of the east, and the other of the west, curb line of the median grass plots. The space under these bridges and between the stanchions is paved. Just before the accident the defendant was driving in the left of the southbound lane, about two feet from the line formed by the western grass plot curbs and the western row of stanchions.

There was evidence to show that another car was proceeding south on Broadway in the right hand lane ten to twenty feet ahead of the defendant, that the plaintiff was crossing Broadway from west to east; that the car ahead of the defendant avoided hitting the plaintiff when the driver applied his brakes hard; that the plaintiff continued to cross, and that as he passed in front of the other car he emerged into the view of the defendant not more than about forty-five feet in front of his car; that the plaintiff was struck by the defendant's car when he had almost reached the east side of the southbound lane; that the defendant applied his brakes and laid down skid or tire marks for a net distance of forty-two feet (after allowing for the ten-foot wheelbase of the car); that the skid marks stopped just south of the southern railroad bridge; that the plaintiff fell at a point alongside the southernmost of the western row of stanchions supporting the railroad bridges; and that the plaintiff was picked up from this point by an ambulance crew and taken to a hospital. The plaintiff claimed that he fell on a grassplot, but even he testified, as did other witnesses, that he had not been moved after the accident until the ambulance arrived, and the testimony of every other witness on this subject, including that of the police officer who saw him being removed, was that he was lying by the stanchion. As is shown by a surveyor's plat this stanchion is 130 feet north of Ellsworth Street [where the plaintiff says the accident happened], and is almost as far south of Hoffman, and it is about 25 feet from the nearest grassplot.

Within a few minutes after the accident the defendant gave a statement to an investigating police officer in which he stated that his speed had been about 35 miles an hour, that he had first seen the plaintiff when he (the defendant) was about at the second post of the bridge [presumably the middle stanchion under the first or northerly bridge], that 'I tried to hit my brakes when I saw him,' that when the defendant first saw the plaintiff the latter appeared to be going east across Broadway, but that 'it seemed like he didn't want to move when I hit the brakes,' and that his left front fender struck the plaintiff and threw him against one of the bridge stanchions. The defendant also stated that he 'had a couple of beers that is all.' The officer's report noted that 'he smelled slightly of beer or whiskey.' At the trial the defendant claimed that his speed had been about 25 miles an hour and that his statement to the officer as to speed had been due to his being excited. He confirmed his statement about having had two glasses of beer, and no more, and stated that he had drunk them between about 5 and 6 P. M., which would be between about an hour and a half and two hours and a half before the accident.

The investigating officer also visited the plaintiff at the hospital that evening and noted in his report that the plaintiff then 'smelled strongly of beer or whiskey,' though he denied having been drinking.

There was no evidence that the defendant showed visible signs of his faculties being in any way impaired immediately after the accident, and there seems to be no question about his car having proper lights on.

The speed limit on Broadway in the vicinity of the accident was stipulated to have been 30 miles an hour. 'Stopping distances' (allowing for reaction time and braking) were stipulated for speeds of 25, 30, 35, and 40 miles an hour as 61, 83, 109, and 137 feet, respectively.

The principal controversy with regard to the facts was whether the accident happened at the intersection of Ellsworth Street and Broadway, as the plaintiff contended, or between intersections, ¹ under the railroad bridge, as the defendant contended. That question was squarely and, we think, fairly presented to the jury.

The appellant's first contention is that the trial court's summary of the evidence was biased against him. He claims that the court ignored testimony favorable to him and stressed testimony favorable to the defendant. The exceptions to the charge on the ground of bias were rather general, and as to one matter (pointed out below) rather clearly insufficient. Cf. Maszczenski v. Myers, 212 Md. 346, 356, 129 A.2d 109. However, even if we treat them as sufficient, we are satisfied from a review of the evidence and of the court's entire charge that these claims are without any substantial foundation or merit.

With regard to the place where the accident happened, there was little, if indeed any, evidence favorable to the plaintiff other than his own testimony, either to emphasize or ignore. His own testimony was called to the jury's attention, as was other evidence to the contrary. The question was directly and, we think, properly submitted to the jury for determination. It seems to us incredible that the plaintiff could have been struck by a southbound car and could have been thrown to a point 130 feet north of the place at which he said he was struck; yet the trial court did not overemphasize the high improbability of the plaintiff's claim as to where the accident happened. The court certainly had no obligation to try to conceal it or to cover it up by omitting all reference to testimony contrary to the plaintiff's unsupported assertion.

Other matters complained of as to bias scarcely merit comment. Weaknesses or inconsistencies in the testimony of a passerby eyewitness were adequately brought to the jury's attention. The defendant's inconsistent statements as to speed were pointed out, and the court also referred to the defendant's effort to explain his statement to the police made just after the accident. With regard to alleged inconsistency in the defendant's statements about applying his brakes, we do not find any, and think the court's summary dealing with that matter was quite in order. As regards skidmarks we find no adequate exception on this point. Even if there had been one, we should see nothing to cast doubt upon testimony that the skidmarks ending near the stanchion where the plaintiff lay after the accident were made by the defendant's car. As to this matter, the court seems merely to have assumed the truth of uncontradicted evidence, which was in no way improbable. The omission of any reference to the fact that the defendant stated that he had drunk two glasses of beer between an hour and a half and two and a half hours before the accident or to the fact that the police officer noted that the defendant smelled slightly of beer or whiskey, insofar as bias is concerned, is fully offset by the absence of any reference to the same police officer's report that the plaintiff smelled strongly of beer or whiskey.

The court's references to the facts were, we think, within the established rule that the trial judge 'may draw the attention of the jury to the parts of * * * [the evidence] which he thinks important and he may express his opinion upon the facts, provided that he makes it clear to the jury that all matters of fact are submitted to their determination.' Snyder v. Cearfoss, 190 Md. 151, 161, 57 A.2d 786, 791, substantially quoted in Reindollar v. Kaiser, 195 Md. 314, 319, 73 A.2d 493; Md.Rule 554 b 2. Here the requisite instructions stated in the rule and in the proviso just quoted were given. Mezzanotte Construction Co. v. Gibons, 219 Md. 178, 148 A.2d 399. And see Coby v. State, 225 Md. 293, 297, 170 A.2d 199, a criminal case in which it was held unnecessary for the court to comment on all of the evidence. Whether or not there was any need to give any instructions based upon alleged driving while under the influence of intoxicating liquor is considered below.

In addition to making a general charge of bias, the appellant also complains of the court's charge in certain other respects.

First, he sought a binding instruction (Prayer A) that the defendant was guilty of negligence and that the only question for the jury to determine was whether or not the plaintiff was guilty of contributory negligence. He also sought a somewhat more specific instruction (Prayer B) that the defendant was guilty of negligence as a matter of law because of the 'uncontradicte...