Davis v. Gordon

• Decision Date: 24 March 1944
• Docket Number: 38.
• Citation: 36 A.2d 699,183 Md. 129
• Parties: DAVIS v. GORDON.
• Court: Maryland Court of Appeals

36 A.2d 699

183 Md. 129

DAVIS v. GORDON.

No. 38.

Court of Appeals of Maryland

March 24, 1944

Rehearing Denied May 3, 1944.

Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.

Action by David P. Gordon, administrator of Francis Hydock deceased, against Oliver H. Davis to recover for the death of decedent, who was struck by defendant's automobile. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

George M. Berry, of Towson, for appellant.

Joseph R. Byrnes and Herbert Levy, both of Baltimore (Tydings Sauerwein, Levy & Archer, Michael Paul Smith, M. William Adelson, and David P. Gordon, all of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, and BAILEY, JJ.

SLOAN Chief Judge.

On March 28, 1942, Francis Hydock and Joseph I. Indrisek left the Glenn Martin plant in Baltimore County, where they were employed, about 12:45 A. M. They left in the car of a friend and were driven to Essex, where they went to a tavern, had something to eat, each had two bottles of beer, and about 1:30 A. M. started to walk on Mace Avenue to their rooming house. Indrisek saw a car, the defendant Oliver Davis', coming north, toward them. He told Hydock of it, and they moved over to the right side of the road, off the concrete pavement to the dirt shoulder, Indrisek in front, Hydock in the rear, when they were struck by defendant's car.

Davis said he was blinded by the lights of two cars approaching, and when they passed he saw two men in the road a few feet in front of him. He swerved his car to the left, and thought he had 'just brushed them aside'. He did not hit them head on; his car showed the damage to the right head-light, and to the top of the hood on the right side, so that he came within a foot or two of missing them. Hydock was killed, according to the professional witness, instantly and Indrisek injured. Glass from the head-light was found on the left of the center of the road and some near the body which was off the right side of the road. Davis was accompanied by a woman who had been with him all evening. Indrisek couldn't locate his companion and two or three hours later the body was found in a ditch three feet from the concrete shoulder of the road.

The defendant did not stop, but went on some distance and debated with his companion as to whether they should go back. 'Both of us knew we had hit them; so we did not go back, but I took Mrs. Dea home and then went home and went to bed.' The next day the police located the car of the defendant with a broken right headlight, and Davis, when he arrived home from work that day, was taken to the Police Station.

There is no evidence from which it can be inferred that any of the parties concerned were under the influence of intoxicating liquor.

The only evidence as to speed is from the defendant who said he was going thirty-five to forty miles an hour. The plaintiff argues that the speed must have been more, and infers this from the objects found at and near the scene afterwards, but it could be inferred as readily from a lesser speed than the defendant testified to.

The judgment was for the plaintiff from which the defendant appeals.

There are only two questions on the appeal seriously argued by counsel on both sides, one on the admissibility of evidence and the other on the plaintiff's first prayer, which was repeated by and included in the oral charge of the court.

The question of evidence (1) was on exception to the ruling of the court allowing the defendant to be asked whether he had a driver's license, to which he answered 'No', and (2) was his license revoked in 1937, to which he answered, 'Yes'.

These questions were improper. The defendant was not being tried on a warrant charging him with driving without a license, the charge was a civil suit asking damages caused by his negligence. This question is only asked for the purpose of prejudicing the defendant and inflaming the jury. The only question for the jury to decide was whether the defendant was negligent, and as a result of his negligence the plaintiff's decedent was killed. In some jurisdictions the violation of a statute or ordinance in traffic cases is evidence of negligence per se. In some that it is prima facie evidence. In Jones' Commentaries on Evidence, 2d Ed., sec. 671, in cases where exemplary damages are allowed the 'coloring facts' are relevant, and so in Sutherland on Damages, 4th Ed., sec. 401. The rule in this State is fully considered in the case of Kelly v. Huber Baking Company, 145 Md. 321, 334, 125 A. 782, where it was held that evidence of the violation of a statute is admissible where the violation is the proximate cause of the injury. There was no contention in this case that the question of negligence was not for the jury. The defendant requested an instruction for an instructed verdict on the ground that the plaintiff's decedent was guilty of contributory negligence, but it was so obviously a question for the jury that no comment is necessary.

The other question, however, the instruction that the jury may award punitive damages, is a new one in this State in cases of automobile accidents. Here we have no rule of comparative negligence. If the defendant is negligent, the negligence resulting in injury, and the plaintiff has not contributed to the injury, the latter is entitled to recover in full for the damage and pecuniary loss. The fact that the act of negligence may be slight and not gross makes no difference. The test is, the damage done....