Armstrong v. Johnson Motor Lines, Inc.

• Decision Date: 30 July 1971
• Docket Number: No. 465,465
• Parties: Grayphenia ARMSTRONG et al. v. JOHNSON MOTOR LINES, INC., et al.
• Court: Court of Special Appeals of Maryland

Page 492

12 Md.App. 492

280 A.2d 24

Grayphenia ARMSTRONG et al. v. JOHNSON MOTOR LINES, INC., et al.

No. 465.

Court of Special Appeals of Maryland.

July 30, 1971.

David Kimmelman and William O. Goldstein, Baltimore City, with whom was Benson I. Offit, Baltimore City, on brief, for appellants.

Thomas G. Andrew, Baltimore, with Rollins, Smalkin, Weston & Andrew, Baltimore, on brief, for appellees.

Argued before MURPHY, C. J., and MOYLAN and POWERS, JJ.

POWERS, Judge.

Wilbert Calvin Armstrong Sr. met a tragic death shortly before dawn on January 16, 1968 on Route 40, near Joppa Farm Road, in Harford County. A collision had occurred between two passenger vehicles on the highway, leaving one at rest in the grass median strip and the other partially blocking the inside, or southerly, westbound lane. About 10 minutes later, a truck of appellee Johnson Motor Lines, Inc., operated by its employee, appellee Robert Eugene Gregg, approached the scene travelling west in the inside lane. Gregg testified that a bus, without warning, swerved from the right land into the left land in front of the truck, then quickly applied its brakes. He said that he applied his brakes but had insufficient room to stop, and that there was traffic on his right, so he jerked the steering wheel to the left to avoid hitting the bus, and drove into the grass median strip. There, he hi the front part of the disabled car, and after stopping, learned that he had hit the decedent, causing injuries from which death followed.

Gregg testified that it was very dark, there was no moon, and that there were no lights on the disabled car. His version was partially corroborated by the driver of one of the disabled cars. There was no other version.

Grayphenia Armstrong, the widow, and the four children of the decedent, with a count by Mrs. Armstrong as administratrix, filed suit in the Superior Court of Baltimore City against the owner and the driver of the truck, and against the drivers of the two passenger cars.

At the close of the evidence offered by the plaintiffs, Judge J. Harold Grady, presiding, granted motions of the two passenger car drivers for directed verdicts. At the close of all the evidence a motion of the defendants who are appellees here for a directed verdict was reserved, Judge Grady instructed the jury, arguments were made by counsel, and the jury retrurned a verdict for the defendant. From the judgment on this verdict the plaintiffs appealed.

The facts of this fatal accident have been given in very brief form. Greater detail is unnecessary for consideration of the narrow question of law raised by the appeal.

Appellants contend that Judge Grady's sudden emergency instruction should have included an explanation that sudden emergency is an affirmative defense, and that the defendants had the burden to prove it. Intertwined with this contention is the plaintiffs' belief that the doctrine of res ipsa loquitur not only raised in their favor an inference of negligence by the truck driver, but proved such negligence making his invoking of the sudden emergency rule in effect a defense of confession and aoidance.

Judge Grady explained to the jury in considerable detail the principles that should guide them in considering the evidence that the truck driver found himself confronted with a sudden emergency. He summarized as follows:

'The defendant's action must be judged by the circumstances which then existed and not by hindsight or by looking backwards after the events had already transpired. If after the accident some other course of action might appear more judicious, the defendant is not held to that course of conduct if what he did under the circumstances was reasonable.

In determining whether the action taken by the defendant was reasonable, you whould consider all of the matters which you have heard described in the evidence, such as the size and weight of the tractor-trailer he was driving, the speed at which his vehicle and other vehicles on the roadway were travelling, the lighting conditions at or near the location, the traffic counditions upon the analysis that the defendant Gregg was

Therefore, if you find in the final analysis that the defendant Greegg was confronted with an emergency situation, not of his own making but took action which you find that a reasonably prudent person would not have taken under those conditions, then the defendant Gregg was negligent.

On the other hand, if you find that the defendant Gregg was confronted with an emergency not of his own making and did what you would expect a reasonably prudent person to have done under those conditions, then the defendant Gregg was not negligent. Also, if your minds are in a state of even balance on this question, you must decide that the defendant Gregg was not negligent.'

Appellants' counsel excepted as follows:

'The plaintiffs further except to that part of the Court's instruction in which he discusses the emergency situation demonstrated and I believe Your Honor had indicated that it is not the burden of the defendant to prove by a preponderance of the evidence that he was faced with an emergency situation. In view of the fact that this is an affirmative defense as to the happening of this accident that that would shift the burden of proof upon the defendant to prove by a preponderance of the evidence that he was in fact faced with an emergency situation.'

We must first understand clearly just when a plaintiff may rely upon the doctrine of res ipsa loquitur, and next, we must see how much help he gets from the doctrine in a case in which he may and does rely upon it. The inception and the development of the doctrine were carefully examined and discussed by Judge Finan for the Court of Appeals in Blankenship v. Wagner, 261 Md. 37, 273 A.2d 412, and its applicability in modern tort law was clearly defined. Judge Finan said for the Court, at page 42, 273 A.2d at page 415:

'In order to invoke the doctrine of res ipsa loquitur in Maryland certain circumstances must be shown by the evidence. First, it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant's negligence. Williams v. McCrory Stores Corp., 203 Md. 598, 601, 102 A.2d 253 (1954); Cf. Short v. Wells, 249 Md. 491, 496, 240 A.2d 224 (1968). Second, the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant's exclusive control. Smith v. Kelly, 246 Md. 640, 644, 229 A.2d 79 (1967). The third element is that it must appear from the evidence that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury.'

Blankenship goes on to point out that earlier cases held that for the doctrine of res ipsa loquitur to be applicable, it must not appear from the plaintiff's own evidence that something other than the defendant's negligence caused the accident, but notes the logical extension of this concept, and states the present rule as follows, at page 46, 273 A.2d at page 417:

'If the plaintiff has circumstantial evidence which tends to show the defendant's negligence (and which is therefore consistent with the inference relied upon in res ipsa loquitur) he should not as a matter of policy be discouraged from coming forth with it. If, however, the evidence introduced by the plaintiff or the defendant shows that everything relative to the case is known, and that the injury might have been caused by something other than defendant's negligence (thereby negating the inference normally relied upon in res ipsa loquitur), then the plaintiff will not be allowed to avail himself of the doctrine. In such a case, if plaintiff's proof fails to make out a prima facie case of negligence then it is proper to direct a verdict for the defendant. Lee...