Cluster v. Cole

• Decision Date: 20 May 1974
• Docket Number: No. 505,505
• Citation: 21 Md.App. 242,319 A.2d 320
• Parties: William C. CLUSTER and Phyllis I. Cluster, etc., et al. v. Edith Mae COLE.
• Court: Court of Special Appeals of Maryland

Page 242

21 Md.App. 242

319 A.2d 320

William C. CLUSTER and Phyllis I. Cluster, etc., et al. v. Edith Mae COLE.

No. 505.

Court of Special Appeals of Maryland.

May 20, 1974.

Samuel Blibaum, Baltimore, with whom was Gerald N. Klauber, Baltimore, on the brief, for appellants.

James K. Carmody, Annapolis, with whom were Serio, Hopper & Carmody, Annapolis, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and GILBERT, JJ.

MORTON, Judge.

This is an appeal from a judgment n. o. v. granted by the presiding judge in the Circuit Court for Anne Arundel County after the jury was unable to reach a verdict. Appellants contend that the trial court erred in admitting into evidence a so-called res gestae statement of an unidentified witness and in finding that their deceased daughter was guilty of contributory negligence.

This suit for damages due to negligence arose from an accident which occurred at approximately 8 p. m. on August 29, 1970, causing the death one week later of appellants' twelve-year old daughter, Terri Lee Cluster. It is admitted that the driver of the car which struck Terri was Edith Cole. Mrs. Cole was the mother of the car's owner, Shirley Semon.

As a result of the accident, William and Phyllis Cluster, as the surviving parents of Terri, and William Cluster as administrator of her estate, filed suit against Edith cole and Shirley Semon.

After receiving all the evidence, the court granted a directed verdict in favor of Shirley Semon as the testimony adduced at trial indicated that Mrs. Cole was operating the car on her own business and not her daughter's. Appellants did not object to the directed verdict in favor of Shirley Semon. Accordingly, its propriety is not before us on appeal. Appellants, however, earnestly contend here that the grant of a judgment n. o. v. for Edith Cole was clearly erroneous in light of all the competent evidence before the trial judge.

Shelly Wolfe, a fifteen-year old friend of the deceased, testified that she left the Clusters' home with Terri at about 7:30 p. m. on the evening of August 29. Both girls were riding bicycles and they left in order to get Terri's tire repaired at a neighborhood gas station. The station was located on the other side of Crain Highway. Shelly did not cross the road but instead waited for her friend on top of a nearby embankment. From her vantage point she had a good view of the traffic below going in both directions.

She saw Terri go over to the station and then observed Terri begin her return across the road, pushing her bicycle and walking. The witness remembered Terri looking up and down the road as she came out of the station and before beginning to cross. She further testified that the deceased made it halfway over, reaching the center line, without incident. Part way across the remainder of the highway, Terri was hit by a two-door Plymouth sedan driven by Mrs. Cole. Terri was immediately removed by ambulance to North Arundel Hospital and subsequently transferred to University Hospital suffering extensive head and body injuries. She died a week later without regaining conciousness.

Throughout her testimony Shelly maintained that the headlights of the car which struck the deceased were not on. At the time she and Terri left the Clusters' home, approximately a half-hour before the accident, she stated that 'it wasn't dark yet but it was just starting to turn dark a little bit.' When asked on cross examination about the need for headlights at the time of the accident, she replied: 'Well, it wasn't dark enough to have them on really.' Shelly was unable to recollect whether or not Terri had walked across the first, or westbound, lane of traffic from between two cars.

William Cluster, Terri's father, testified that he first heard of the accident from Shelly when she raced to his home immediately afterwards. He ran to the accident site, arriving five to ten minutes after the occurrence. Questioned as to the lighting at the time he arrived there, Mr. Cluster responded that 'it was starting to get dark then I believe * * * it was just like Shelly said it wasn't dark enough at the time to really have headlights on * * * I didn't see any with headlights on.'

As the investigating officer had apparently terminated his employment with the police force at the time of trial, the parties stipulated the admission of the police report and an appended diagram. The point of impact was placed ten feet from the center line in the eastbound lane outside of any intersection or crosswalk and a hundred feet east of Furnace Branch Road. The report noted the lighting conditions as 'dusk, poor illumination.' The police officer also made a statement, apparently contained in the police report, of the accident: 'Operator one (Mrs. Cole) was proceeding east on Crain Highway when she observed the bicyclist directly in the path of her vehicle and was unable to stop in time to avoid striking the same.'

Mrs. Cole testified that she was proceeding eastbound on Crain Highway returning to her daughter's residence in Glen Burnie after visiting her own home in Baltimore. In her direct testimony she maintained that something hit her car just after she passed under the automatic signal light at the intersection of Crain Highway and Furnace Branch Road. When initially called by the plaintiffs as an adverse witness, Mrs. Cole had said that the impact occurred 'approximately before we went under the light' at the same intersection. She repeatedly testified that her headlights were on at the time of the accident, noting that those of other cars in traffic were also on. Mrs. Cole denied driving faster than the applicable speed limit of 30 m. p. h., asserting that traffic was heavy. Visibility at the time of the accident was good, according to her. Mrs. Cole acknowledged that Crain Highway is a straight road after passing the intersection and that there is nothing to obstruct the view. Mrs. Cole maintained that from the intersection up to the time of impact, she was attentively looking straight ahead. She denied having seen Terri, or any other person, in the roadway ahead of her prior to the accident.

After impact, Mrs. Cole stopped abruptly in the middle of the lane and ran out of the car to the back where she observed the body of Terri lying nearby. On cross examination she was unable to explain her precipitous reaction on hearing the unexpected noise in the front of the car beyond stating that 'it was something hit the car * * * you can tell * * * in the driving.'

Mrs. Cole said that on discovering the child lying in the roadway, she started to scream hysterically and knelt over the body. She testified that while so kneeling, a 'colored man' came up to her and 'He said lady, please, don't touch the little girl. He said it wasn't your fault. He said she run between the cars.' Neither Mrs. Cole nor anyone else obtained the 'colored man's' name. Mrs. Cole's recollection of the unidentified 'colored man's' statement was admitted into evidence by the trial judge over appellants' strenuous objections.

In permitting Mrs. Cole to state to the jury what the unidentified witness had allegedly told her just after the accident, the trial judge announced that he was doing so under the doctrine of res gestae. While the term res gestae has been roundly criticized by respected authorities, ¹ the use of the term is firmly imbedded in the case law of this State. Estep v. State, 14 Md.App. 53, 67, 286 A.2d 187 (see cases cited therein), Honick v. Walden, 10 Md.App. 714, 272 A.2d 406, Harnish v. State, 9 Md.App. 546, 266 A.2d 364. The formula governing res gestae has been enunciated by the Court of Appeals and this Court many times. After discussing prior decisions of the Court of Appeals, this Court, in Reckard v. State, 2 Md.App. 312, 316-317, 234 A.2d 630, announced:

'As otherwise expressed, whether a declaration is a part of the res gestae depends upon whether the declaration represented the facts talking through the party or whether the party was talking about the facts, since res gestae comprehends a situation which presents an occurrence sufficient to produce a spontaneous and instinctive reaction under such circumstances as to show a lack of forethought or deliberate design on the part of the declarant.

To constitute res gestae an utterance need not in all strictness be contemporaneous, in the sense of simultaneous, with the principal act; it may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated by meditation.

The point is not so much the lapse of time or change of place as the continuance of a situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an...