Brock v. Sorrell

• Decision Date: 23 March 1972
• Docket Number: No. 560,560
• Citation: 15 Md.App. 1,288 A.2d 640
• Parties: William Clifford BROCK v. James Edward SORRELL et al.
• Court: Court of Special Appeals of Maryland

Page 1

15 Md.App. 1

288 A.2d 640

William Clifford BROCK v. James Edward SORRELL et al.

No. 560.

Court of Special Appeals of Maryland.

March 23, 1972.

Bernard Brager, Baltimore, for appellant.

Ernest M. Thompson, Easton, for appellees.

Argued Before ORTH, MOYLAN, and GILBERT, II.

GILBERT, Judge.

William Clifford Brock, appellant, brought suit against James Edward Sorrell, appellee, and Norman McDaniel, appellee, ¹ seeking recompense for personal injuries sustained by appellant when the motor vehicle driven by Sorrell overturned following a blowout.

At the conclusion of the plaintiff-appellant's case, Judge James A. Wise, presiding in the Circuit Court for Caroline County, granted a motion for a directed verdict filed on behalf of both defendants-appellees.

Appellant here argues that he had established a prima facie showing of negligence and that the trial judge erroneously granted the appellees' motion.

The crux of the appellant's case is set forth in the testimony of the appellant himself. That testimony can be summarized as follows: appellant and the appellees worked for the same employer as oyster tongers. On October 9, 1970, the appellant was a passenger riding in the center front seat of a one-half ton Ford pickup truck. The truck had been converted from a passenger motor vehicle. While traveling on U.S. Rt. 50, approximately one-half mile from Maryland Rt. 456 in Queen Anne's County, the pickup, driven by the appellee Sorrell, attempted to pass another vehicle and while in the course of doing so the left front tire of the pickup blew out. Sorrell 'hit his brakes' and the truck left the paved portion of the road and completely overturned. Appellant was partially thrown out of the truck. He injured his right arm, head and lower back. Appellant stated that approximately 50 miles prior to the scene where the accident occurred, appellee Sorrell had remarked that the vehicle 'wasn't handling right or something.' ² No further elaboration was made on the point. Three days after the accident appellant examined the wrecked pickup truck and ascertained that the left front tire 'looked like it was worn a little bit.' Appellant was unable to state how much weight the truck was carrying at the time the tire blew out except that, 'It had a lot of tools in it, and a plate * * * a steel plate.'

Following the introduction of the medical reports, not here germane, the appellees submitted their written motion for a directed verdict to Judge Wise. The jury was excluded and after argument Judge Wise granted the motion with respect to both appellees.

We said in Little v. Duncan, 14 Md.App. 8, 16, 284 A.2d 641, 645 (1971), that:

'It is axiomatic that the mere happening of an accident does not give rise to a presumption of negligence, Finney v. Frevel, 183 Md. 355, 362, 37 A.2d 923 (1944); Bohlen v. Glenn L. Martin Co., 193 Md. 454, 463, 67 A.2d 251 (1949); Schaub v. Community Cab, Inc., 198 Md. 216, 225, 81 A.2d 597 (1951), and that the burden of proof rests upon the plaintiff to demonstrate that a defendant or defendants were guilty of negligence directly contributing to the happening of the accident. Finney, supra; Larsen v. Romeo, 254 Md. 220, 225, A.2d 387 (1969); meo, 254 Md. 220, 225, 225 A.2d 387 (1969); Mazer v. Stedding, 10 Md.App. 505, 506-507, 271 A.2d 381 (1970); Armstrong v. Johnson Motor Lines, 12 Md.App. 492, 500, 280 A.2d 24 (1971).'

Appellant earnestly argues that when the evidence present in this case is viewed in the light most favorable to him (the non-moving party), the truth of all the credible evidence tending to sustain his claim of negligence is assumed, and all favorable inferences of fact fairly deducible therefrom tending to establish negligence are postulated to his benefit, the matter should have been submitted to the jury. Rule 552; Pratt v. Coleman, 14 Md.App. 76, 286 A.2d 209 (1972); Herbert v. Klisenbauer, 12 Md.App. 135, 277 A.2d 625 (1971); Mazer v. Stedding, supra. He says, in effect, that the high rate of speed of the truck (55 miles per hour), 'loaded as heavily as this one' and the testimony that the vehicle was not 'handling' properly, joined with the allegation that the left front tire was 'worn a little bit,' all established sufficient bases for the jury to determine the question of negligence. In support of his position, appellant relies upon Lund v. Connolly, 275 Minn. 127, 145 N.W.2d 422 (1966), and Grant v. Matson, 68 S.D. 402, 3 N.W.2d 118 (1942). We think, however, that both of those cases are factually inapposite. In Lund, the driver of the vehicle turned his head so as to face the passengers in the rear seat and at that time the right front wheel left the road. At about the same instant, the right rear tire 'went flat.' The right side of the car had gone over 'onto the shoulder' and hit the gravel, and when the driver attempted to turn to the left the vehicle 'fishtailed.' The plaintiff testified that the blowout occurred at or aobut the same time as the vehicle went upon the shoulder. The act of negligence in Lund relied upon to submit the case to the jury, i. e., turning one's head during the course of driving, occurred before the blowout. In short, the negligence occurred before the blowout.

In the instant case, the blowout occurred while the vehicle was apparently being operated within the prescribed speed limit, and while attempting to pass another vehicle. There was no evidence that the vehicle left the road before the blowout. Grant dealt with a set of facts wherein the driver was operating at an unlawful rate of speed on a 'very rough' road. Here, appellant did not show any evidence of unlawful speed or that the road was in such poor condition that a person operating a motor vehicle at the rate of 55 miles an hour thereon would have been driving at an improper speed under the circumstances so as to give rise to an act of negligence.

We note that no testimony was offered to establish the weight of the 'load' in the truck, or that such weight constituted an overload, thereby placing excess strain upon the tires. No guidelines were offered to establish what the appellant meant when he said the tire was 'worn a little bit'. The jury could not be allowed to speculate upon the condition of the tire at the time of the blowout. More explicit evidence was needed than was presented by the appellant. The mere fact that a tire blows out, standing alone, does not, of itself, render the owner or operator of the motor vehicle liable to an injured passenger. Glazer v. Grob, 136 Me. 123, 3 A.2d 895 (1939). It is incumbent upon a plaintiff to establish that the tire was in some manner defective, and that the operator or the owner, as the case may be, knew, or should have known, by the exercise of reasonable care, of the defect. See Delair v. McAdoo, 324 Pa. 392, 188 A. 181 (1936); Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 (1939); Glazer v. Grob,supra. Where the driver has no such knowledge, actual or constructive, of the unsafe condition of the tire, he is not liable to a passenger injured in an accident resulting from a blowout. Dostie v. Lewiston Crushed Stone Co.,supra; Glazer v. Grob, supra.

We do not believe that the statement attributed to the appellee Sorrell, and allegedly made sometime before, and approximately 50 miles distant from the place of the blowout, that 'the vehicle wasn't handling right or something' constitutes knowledge of a defect in the tire. This is particularly so in view of the plaintiff's testimony that after the remark was made they continued on '* * * just normally. You...