Aronstamn v. Coffey

• Decision Date: 10 July 1970
• Docket Number: No. 416,416
• Citation: 267 A.2d 741,259 Md. 47
• Parties: Joseph H. ARONSTAMN, Infant, et al. v. Ivan Moore COFFEY.
• Court: Maryland Court of Appeals

Page 47

259 Md. 47

267 A.2d 741

Joseph H. ARONSTAMN, Infant, et al. v. Ivan Moore COFFEY.

No. 416.

Court of Appeals of Maryland.

July 10, 1970.

Joseph F. Lentz, Jr., Baltimore (Monfred, Lentz & Hooper, Baltimore, on the brief), for appellants.

A. Owen Hennegan, Towson, for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

PER CURIAM.

This is yet another case in which there was a collision between a child and an automobile in a public street. The appellants, Joseph Henry Aronstamn (five years and eleven months old at the time of the accident) and his father, were plaintiffs in the trial court. They here appeal in adverse verdict, complaining relative to the court's instructions. For procedural reasons, the appeal will be dismissed.

The accident in question took place on December 7, 1965, when a pickup truck operated by the appellee, Ivan Moore Coffey, was proceeding in a southerly direction on Hillsway Avenue in Baltimore County. The accident took place a short distance north of Mantle Street in an area where the speed limit is 25 miles per hour.

After a jury returned a verdict in favor of the defendant, plaintiff made a motion for a new trial. The motion was overruled. An appeal to this Court was entered a number of days later. As of the time of appeal no final judgment had been entered, although the clerk should have entered judgment. Therefore, the appeal must be dismissed, since the appeal was from a judgment nisi. Hawkins v. GMAC, 250 Md. 146, 148, 242 A.2d 120 (1968); Merlands Club v. Messall, 238 Md. 359, 208 A.2d 687 (1965); and Md., Del. & Va. Rwy. Co. v. Johnson, 129 Md. 412, 99 A. 600 (1916). To avoid the expense and dealy of another appeal, however, we shall indicate our views pursuant to the authority of Maryland Rule 885.

The trial judge (Raine, J.) gave a fair, full and comprehensive instruction to the jury. The plaintiffs requested numerous detailed instructions. On appeal it is urged that the trial judge erred in failing to grant approximately a dozen of those instructions.

Much of what Chief Judge Brune said for the Court in Lemons v. Chicken Processors, 223 Md. 362, 164 A.2d 703 (1960), is here relevant:

'This brings us back to the basic question-whether the plaintiff was entitled to a specific instruction based upon the size, weight and unwieldiness of the tractor-trailer. If the trial court had undertaken to discuss the facts in detail in the charge to the jury, we may assume that an instruction along the lines requested, not over-emphasizing any one factor or carrying the implication of any higher degree of care being required, would have been proper and, indeed, should have been given. But in the instant case, the trial judge did not give a charge reviewing the facts in detail, and we do not think that he was bound to do so. Sometimes a charge embodying a particular rule of law may be necessary in order to prevent an abstract, general charge which is granted, and which may in itself be a correct charge, from being misleading. State, Use of Taylor v. Barlly, 216 Md. 94, 99, 140 A.2d 173. In the present case, however, we find no such situation. The type of charge to be given-whether detailed or general-was within the discretion of the trial judge, and he was not required to include the requested instruction in it. Ager v. Baltimore Transit Co., (213 Md. 414, 132 A.2d 469 (1957)). In that case we said (213 Md. at 425-426, 132 A.2d at page 475): 'The appellant * * * contends that she was entitled as a matter of right to have the jury instructed as to every detail of the duties of the operator of the motor-car such as his duty to keep a proper lookout, to have the car under proper control and to regulate the speed of his car according to what is reasonably and proper in view of the circumstances, etc. While there is no objection to the trial court's pointing out any and all of the reciprocal duties and obligations of the respective parties in minute detail, there is no obligation that it do so, provided the subject is fully and comprehensively covered in the charge to the jury. * * * (Maryland Rules, Rule) 554...