Coastal Tank Lines v. Carroll

• Decision Date: 25 June 1954
• Docket Number: No. 162,162
• Citation: 106 A.2d 98,205 Md. 137
• Parties: COASTAL TANK LINES, Inc. v. CARROLL (two cases).
• Court: Maryland Court of Appeals

Page 137

205 Md. 137

106 A.2d 98

COASTAL TANK LINES, Inc. v. CARROLL (two cases).

No. 162.

Court of Appeals of Maryland.

June 25, 1954.

Jesse Slingluff, Jr., Baltimore (Michael P. Crocker and Piper & Marbury, Baltimore, on the brief), for appellant.

Eugene A. Alexander, III, Baltimore, for Gertrude Carroll.

J. B. Randol Carroll, Baltimore (Charles Markell, Jr., Baltimore, on the brief), for Richard M. Carroll.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

A tractor-trailer, owned by Coastal Tank Lines, Inc., the appellant, ran off the Governor Ritchie Highway near the intersection of Ordnance Road, striking a house owned by Richard M. Carroll and insured by the Home Insurance Company. Gertrude Carroll, another appellee, was sitting in the house. The accident followed the sudden entry into the boulevard of a car, a convertible, which collided with a stake body truck proceeding down the Highway just ahead of the tractor-trailer. In one suit, the owner of the damaged house and his insurance company sued Coastal to recover the cost of repairs, and in another suit, Gertrude Carroll sued it to recover for the injuries which she suffered as a result of the accident. The cases were consolidated and tried together, and on a jury's answer to issues, finding Coastal negligent, judgments were entered which are appealed from here. The real contention of the appellant is that there was no evidence legally sufficient to establish that it was guilty of negligence and that the court should have directed a verdict on its timely motion, or should have entered a judgment notwithstanding the verdict.

The plaintiffs below first sued Coastal only. Coastal brought in, as third party defendants, the owner and driver of the automobile which came into the boulevard and the owner and driver of the stake body truck. Thereafter, the plaintiffs amended the declarations and joined these third parties as defendants. At the trial, plaintiffs produced a witness who had been a policeman on the Anne Arundel County force at the time of the accident, and in an effort to bring their case within the doctrine of res ipsa loquitur, attempted to limit his testimony to a description of the course the tractor-trailer had taken in leaving the road, as it knocked down a telephone pole and struck the house, and where it came to rest. He was not questioned as to the other two vehicles involved, although he did say in direct examination that: '* * * I can't exactly remember how I found Mr. Sesker's truck but the other gentleman was driving a car, I found it farther up the road, sitting in the middle of the road. I had all the people involved in the case together, * * *.' Richard Carroll told of the damage to his house and the payment of the cost of repairs by the insurance company. It was agreed that if the jury found a verdict for Gertrude Carroll, the court should assess the damages and her testimony was limited to her injuries.

The court refused a motion for a directed verdict at the close of the plaintiffs' case, and Coastal put on its case. The driver of another Coastal tractor-trailer coming north, as the one involved in the accident was coming south, said that the convertible bound west on Ordnance Road stopped at the stop sign, and then suddenly came into the boulevard just as the stake body truck approached the intersection. His description was this: '* * * I seen this Gembecki car stopped for the stop sign, and it come right off, didn't wait for any traffic, and he cuts out across the Coastal Tank Lines truck which was driven by this fellow named Grymes south, cuts the stake body truck off, the stake body truck sideswiped the car and the Coastal Tank Lines driver cut to the right, and when he cuts to the right it is about a sixth or eighth inch curb there, the curb throwed him into the pole, he snapped the pole base off and ran into the corner of the house.' The stake body truck, he said, was in the left or fast lane, some seventy-five feet ahead of the Coastal truck, which was in the right-hand or slow lane. The stake body truck, in an effort to avoid the convertible, swung to the right in front of the Coastal truck. The convertible made an effort to cut in front of the stake body truck and get into the slow lane ahead of the Coastal truck. It got about two and a half feet over the middle line when it was struck on the right front fender by the stake body truck. The witness said the stake body truck: * * * managed to get 25 or 50 feet ahead of the Coastal Tank Lines truck before this accident occurred.' The convertible: '* * * stopped right at the point of impact.' The witness said further that the stake body truck was going about thirty-five miles an hour. There was no room to pass the convertible in the left-hand lane, and the witnesses thought there was 'good reasonable passing' to the right because the ditch on that side was asphalt paved for three or four feet.

The driver of the Coastal truck said that he attempted to go over the curb because there was not room left in the road proper to pass the convertible. He added that by hitting the curb at an angle, it: '* * * made me lose control of it by bouncing back and forth and hitting up against the telegraph pole.' The driver of the stake body truck was also offered as a witness by Coastal. He said that he was going down the road ahead of the tractor-trailer at between thirty-five and forty miles an hour, and as he got near Ordnance Road, the convertible pulled in front of him and began to make his turn, and got just about halfway when, despite simultaneous efforts to stop and swing to the right, the left front of the stake body truck hit the right side--first the front and then the back--of the convertible. He added: '* * * I just hit his car and kind of slewed it off a little bit and I went on by.' He said the impact occurred: '* * * About exactly opposite Ordnance Road.' He pulled on down the road several hundred feet and stopped.

At the conclusion of the defendant's case, Richard Carroll was recalled in his own behalf and testified that it is two hundred feet from Ordnance Road to his house, that the telephone pole is thirty feet from his house, or one hundred seventy feet from Ordnance Road. There are two houses between Ordnance Road and his house.

The appellees argue that the doctrine of res ipsa loquitur applies, relying on the language of Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241, 245, that: 'When a vehicle leaves a highway and crashes into a building, * * * the injured party may show the happening of the event and rest. In lieu of direct proof of negligence he may rely on the inference of negligence to be deduced from all the circumstances.' The statement was dictum in that case. In Shirks Motor Express v. Oxenham, Md., 106 A.2d 72, we held the quoted language applicable, since the deviation of the vehicle from normal conduct constituted all of the attendant circumstances.

The statement is not applicable to the case before us for the reason that all of the facts which led up to and caused the injuries were known and testified to at the trial--all of the facts which either did or did not amount to negligence--so that the need for an inference vanished. It is not necessary to decide whether the plaintiffs' testimony went far enough (when the expoliceman testified as to 'Mr. Sesker's truck' and the car of 'the other gentleman' and the fact that he had 'all the people involved in the case together') to show that: '* * * the injury complained of might have been caused either by the defendant's negligence or by the act of another for which the defendant was not responsible * * *', State, to Use of Boznango, v. Blumenthal-Kahn Electric Co., 162 Md. 84, 91, 159 A. 106, 109, so that the doctrine of res ipsa loquitur would not operate. It has been held in many cases that if it does go so far, the court will not apply the doctrine, for to do so would be: 'To draw an inference of negligence from only a part of the attendant circumstances * * *.' Strasburger v. Vogel, 103 Md. 85, 89, 63 A. 202, 203. See also Klan v. Security Motors, Inc., 164 Md. 198, 200, 164 A. 235; Surry Lumber Co. v. Zissett, 150 Md. 494, 133 A. 458; Hickory Transfer Co. v. Nezbed, supra.

Nor is it necessary to decide whether a plaintiff who having sued one defendant amends his declaration to charge negligence to, and claim against, two other defendants who have been brought in as third parties, and who has secured full information by interrogatories, may ride to the jury on the doctrine of res ipsa loquitur by deliberately limiting the testimony to the vehicle owned by one defendant and treating the case as if no other vehicle were at all involved. It has been said that: 'The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident. The rule is not applied by the courts except where the facts and demands of justice make its application essential, depending upon the facts and circumstances in each particular case.' Potts v. Armour and Co., 183 Md. 483, 488, 39 A.2d 552, 555. Other cases and the writers have recognized this limitation of the doctrine. Goldman & Freiman Bottling Co., Inc. v. Sindell, 140 Md. 488, 502, 117 A. 866; Frenkil v. Johnson, 175 Md. 592, 604, 3 A.2d 479; Farinholt, Res Ipsa Loquitur, 10 Md. Law Review, 337, 339; Bohlen, Studies in the Law of Torts, 644-645 (Note 13); Harper on Torts, Sec. 77.

We think that 'the facts and the demands of justice' do not require that an inference be permitted to be drawn as a matter of right where all of the circumstances of the occurrence are shown by the testimony. Bohlen, in the work...