Feinglos v. Weiner

• Decision Date: 28 October 1942
• Docket Number: 5.
• Parties: FEINGLOS v. WEINER et al.
• Court: Maryland Court of Appeals

28 A.2d 577

181 Md. 38

FEINGLOS v. WEINER et al.

No. 5.

Court of Appeals of Maryland

October 28, 1942

Appeal from Superior Court of Baltimore City; J. Craig McLanahan Judge.

Action by Lillian J. Feinglos against Joseph Weiner and Quality Beef Corporation for personal injuries and property damage resulting when plaintiff's automobile collided with a truck driven by first-named defendant. From a judgment for defendants, plaintiff appeals.

Judgment affirmed.

Joseph Sherbow, of Baltimore (Paul L. Cordish and Solomon Liss, both of Baltimore, on the brief), for appellant.

Foster H. Fanseen, of Baltimore, for appellees.

Before BOND, Chief Judge, and SLOAN, JOHNSON, DELAPLAINE, COLLINS MARBURY, and GRASON, JJ.

SLOAN Judge.

This appeal is from a judgment for the defendants, Joseph Weiner and Quality Beef Corporation in an action by Lillian J Feinglos, plaintiff, for personal injuries sustained by her, and for damages to her automobile, when it collided with a truck driven by Weiner, who, since suit brought, has become sole owner of the stock of the Quality Beef Corporation. The collision occurred on the 20th day of June, 1940, on Mt. Royal Avenue, south of and about ninety feet from its intersection with Newington Avenue, in Baltimore. The truck and plaintiff's car were in the same line of traffic, the truck in front. The plaintiff said, 'He was a little to our right, slightly.' Her daughter, who was driving, said, 'The car was about a half a car width to the left of the truck,' and she could see ahead two or three blocks, when the truck pulled over in front of her. When four doors, or about ninety feet from the intersection, the truck pulled toward the left of the center of the street, (the plaintiff says partly across the centre line), which is wide enough for three lanes of traffic in each direction, north and south, preparatory to turning into Newington Avenue, and came to a stop (this fact is undisputed), with the result that the plaintiff's car crashed into the rear of the truck, badly damaging her car and severely injuring her. The plaintiff's daughter said: 'This truck in front of me suddenly made a left turn without any warning. He didn't blow his horn or anything like that. He did not give any other kind of signal that I could see at that time, and I was in a position to have seen it if he had done so.' The plaintiff said: 'I remember seeing only a part of his car and it was evidently only a little ahead of us. Just how much I could not say. I have not the slightest idea.' Asked, 'As a matter of fact, Mrs. Feinglos, were you really paying any great amount of attention to him?' she answered, 'No, I did not,' and later, 'Well, I saw that truck ahead of us, but I don't know how far ahead of us it was.' The collision happened opposite the house of a Mrs. Bishow, who was very certain she saw everything that occurred; and said: 'I saw it going to happen and I saw it when it did happen. The crash was due to the fact that the car which was right in back of it could not get out of the way of this truck which as I had said had pulled across the line in front of it. It couldn't get out of the way of the truck for the truck had come to a complete stop. It had stopped dead as I say without any sign, signal or warning that it was going to stop. The car that was behind it hit the truck, this roadster, hit the truck.' Her testimony lost its probative force and effect when she said on cross examination:

'The driver did not give any signal of any sort. I am sure of that, certainly. I would judge that he gave none for he cut right across and stopped.'

'Q. Did you notice whether he did? A. No, I did not.

'By the Court: Q. You did not notice whether or not he gave any signal. A. No I did not for the first time that I noticed the car was when he cut across the traffic.'

Asked, 'Q. I see. Well, you didn't see the truck at all until it stopped. A. No.'

The cutting across was half the width of the car, the plaintiff's daughter having testified that she was following the truck, with the center of her car in line with the left side of the truck. The defendant, Weiner, testified: 'As I approached Newington Avenue, I had my hand out intending to make a left-hand turn. There was southbound traffic. The light up above had just changed and there was a line of southbound traffic there and they were going south at the time and of course I had to allow them to go by first before I could turn and so I came to a stop. I stopped there. I stopped there--It was just there a matter of minutes--just parked there a matter of minutes--minutes, yes, sir, when I felt an awful jolt in my back. I mean seconds. I was there a matter of seconds. I felt this jolt as I said and the jolt was so hard that it broke the back of my truck. The back of my seat, I mean.'

'Q. Now, Mr. Weiner, it has been testified here that you cut directly out into the other lane of traffic going north without giving any warning--that you cut right out in the lane in front of the car coming from the rear. You remember doing that or not? What have you to say about that? A. No, sir.

'Q. You mean you did not do it? A. No, sir, I didn't. I was travelling parallel with the yellow line in the center of the street, parallel with the center line, within a few feet from it. I didn't notice it exactly, that is the distance I was away from it, but I am sure it was close. I didn't notice the car in back of me at all. I didn't pay any attention to them for I was busy watching the ones in front of me. There was probably traffic going up that way. I didn't pay attention to the other traffic, that is, the traffic behind me.'

These are the material and important facts contained in the record. The result, a verdict for the defendant.

Counsel often overlook one important fact in the trial of automobile cases, and that is, that on every jury are some men who drive automobiles, most of them carefully and many of them well. Given the facts accurately, they know whether a collision or injury was the fault of one of the other or both, or neither of them.

After the judgment, the only recourse of the disappointed litigant is to fix the blame for the result on the trial judge on appeal, whose alleged errors might have improperly influenced the jury in arriving at their conclusion.

There were eleven exceptions noted by the plaintiff, the 1st, 2nd, and 3rd, on the evidence, of which the 2nd and 3rd have been abandoned; the 4th, 5th, 6th, 7th, and 8th, to the refusal to grant the prayers for instructions of the plaintiff; the 9th to remarks of defendant's counsel, of which plaintiff said, 'The Court made a satisfactory explanation to the jury'; the 10th and 11th, both of which relate to the court's oral charge, and take up nearly all of the plaintiff's brief, and will be first discussed.

For years, nearly a hundred, the reports of the law cases in this State deal with rulings on the prayers prepared by counsel for the consideration of the trial court. Oral charges according to the common law practice fell into disuse, and only infrequently were there any oral charges discussed in this court, and though it was said they were not improper, their use was never encourage--rather the reverse. The result was that the trial judge lost the importance which should have been his in the conduct of trials. The matter of oral instructions on both the law and the facts has been considerably discussed at meetings of the Maryland Bar Association, and was the subject of papers by Albert C. Ritchie (afterwards Governor) in 1908; Charles McHenry Howard in 1926; Charles Markell in 1937 and Judge Robert F. Stanton in 1938, all strongly urging the resumption of the practice at the common law. One of the references in the plaintiff's brief is to an article by Federal Circuit Judge Morris A. Soper in VI Maryland Law Review, 35, which begins: 'For a long generation the insignificant and ineffectual part played by the Maryland state judge in the jury trial has been the object of trenchant criticism and attack. Powerful addresses have shown that the judge's instructions on the law, consisting of technical requests or prayers prepared by counsel, have been not only the greatest single source of reversible error, but oftentimes utterly useless and unintelligible to the body to whom they were directed. Instructions on the facts have been conspicuous by their complete absence.' The only effective instruction on the facts has been the demurrer to the evidence; that is one of no legally sufficient evidence.

There never was any prohibition against the trial judge instructing the jury on the law. In Philadelphia W. & B. R. Co., v. Harper, 1868, 29 Md. 330, 338, it was said: 'It is the settled law of this Court, that it is competent for the Court below to reject the prayers offered and grant instructions to the jury in its own language, and where these are correct, and cover the whole ground, the judgment will not be reversed, though some of the prayers might have been properly granted.' See cases there cited. Oral instructions on the law are not encouraged, though not condemned in Smith v. Crichton, 1870, 33 Md. 103, 108; Downey v. Forrester, 1872, 35 Md. 117, 122; Hussey v. Ryan, 1886, 64 Md. 426, 433, 2 A. 729, 54 Am.St.Rep. 772.

The use of oral instructions was discouraged in the case of Rosenkovitz v. United Rys. & Electric Co., 1908, 108 Md. 306, 316, 70 A. 108, 112, where it was said: 'While it is clear that the power exists in the courts of submitting an oral instruction in cases where it applies, or may be considered necessary, yet it is a power that should be cautiously exercised, and will be found in practice a dangerous one, and open to abuse. Under our practice it is not to be approved or commended, except...