Fletcher v. Dixon

• Court: Maryland Supreme Court
• Writing for the Court: BOYD, C. J.
• Citation: Fletcher v. Dixon, 113 Md. 101, 77 A. 326 (Md. 1910)
• Decision Date: 31 March 1910
• Parties: FLETCHER v. DIXON.

77 A. 326

113 Md. 101

FLETCHER

v. DIXON.

Court of Appeals of Maryland.

March 31, 1910.

Appeal from Circuit Court, Wicomico County; Chas. F. Holland and Robley D. Jones, Judges.

Action by Nannie S. Dixon against William M. Fletcher. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE PEARCE, SOHMUCKER, BURKE, THOMAS, and URNER, JJ.

Frederick H. Fletcher, for appellant.

George H. Dawson, Jr., and Alonzo L. Miles, for appellee.

BOYD, C. J. This is the second appeal in this case; a judgment which was rendered at the first trial having been reversed, as is reported in 107 Md. 420, 68 Atl. 875. Some of the questions now presented were then disposed of, and we will not repeat the general principles announced as applicable to such cases, but will refer to that decision for our views. There are 14 bills of exception presenting rulings on the admissibiliity of evidence, and the fifteenth includes the rulings on the prayers. The court granted five prayers offered by the plaintiff, and the first, second, fourth, fifth, ninth, and twelfth of the defendant, but rejected his third, sixth, seventh, eighth, tenth, eleventh, thirteenth, fourteenth, fifteenth, and sixteenth. It also overruled special exceptions to the plaintiff's prayers and demurrers to the declaration.

The third and fourth counts of the declaration are the same as the third and fourth in the declaration when the case was before us on the previous appeal, and, as it was then determined that the demurrers to them were properly overruled, we will not further discuss them. Nor do we see any difficulty about the first and second counts.

We will consider the exceptions in the order presented by the appellant's brief. The first was to permitting the plaintiff to offer in evidence a plat showing some of the streets in Cambridge and lots, houses, and other objects on High street, where the injury complained of occurred. It was pre pared by a surveyor who testified that he made it at the request of the plaintiff, but that some objects and measurements were placed on it at the request of the defendant's counsel. He said he had made the measurements and that it was the same plat which was used at the former trial.

The case was tried in Wicomico county, and, as the accident occurred in Dorchester county, it was undoubtedly helpful to have a plat before the jury, in order that the points spoken of by the witnesses could be properly understood. We can see no possible injury to the defendant by its admission. It is not pretended that any material changes had been made on the street between the time of the Injury and when the surveyor made the measurements. There could have been no objection to the surveyor testifying to the distances between the different points he spoke of, and he in point of fact did that, after the plat was offered in evidence. If it had been offered without any explanation by the witness who made it, there might have been some cause for complaint; but the surveyor was on the stand when it was offered, and he was asked to explain it, which he did, although the defendant objected, and the overruling of his objection is made the ground of exception presented by the second bill of exceptions. It is manifest that it was not intended as independent evidence, but was simply offered with the view of immediately following it up by an explanation by the surveyor who made it. We can better understand the testimony of the witnesses called by the respective sides, who spoke of various points on the street, by having the plat in the record than we could without it, and it was evidently of service to the jury, without in any way prejudicing the appellant. Such cases as Tome Institute v. Davis, 87 Md. 591, 41 Atl. 166, cited by appellant, can have no application to this. That was an action of ejectment in which defense on warrant had been taken, and of course the map offered was not admissible in such case. This plat was not offered to prove any controverted locations of objects, but manifestly for the purpose of making the testimony of witnesses intelligible, as they spoke of objects, residences, etc. There was no reversible error in either of those exceptions.

As the third, fourth, and fifth exceptions are not referred to in the brief, we will assume they were not intended to be pressed. Dr. Steele testified that he lived just across the street from the defendant at the time of the accident, that he was acquainted with the noise made by the defendant's automobile, frequently hearing it. He was asked to describe the noise made by it, and replied: "I have passed it, I suppose, 25 times on the streets of Cambridge, and it was an exceedingly noisy machine—an exceedingly loud machine. It was the loudest machine I have ever heard. It was more like a loud exhaust. Puff! Puff! Puff!" That was objected to but admitted, and the ruling forms the sixth exception. We in effect passed on that question on the previous appeal. The witness was speaking of that machine generally, and not simply of some special occasion or occasions. His opportunities to be acquainted with it were shown to be ample.

A witness for the plaintiff, who saw the horse running away, stated on cross-examination that Miss Dixon was using handholds on the reins, and was asked the question, "When you drive, do you use handholds?" That was objected to, and the objection sustained; the court remarking: "We don't think it is an indication of the wildness of a horse because there are handholds on the reins. We think that it is an illogical inference." The counsel for the defendant excepted to that remark of the court, stating that "they expected to show that these handholds are used to hold wild and spirited horses; but the court permitted the said remarks to stand." It is very difficult for the trial court, in ruling on the admissibility of evidence, to always avoid giving some reason for its ruling, although, of course, it should be careful not to say anything which might influence the jury on questions of fact which the jury must determine. The question asked the witness which was ruled out was not material, but was wholly irrelevant. The jury could not be enlightened upon anything properly before it by being told that that witness did or did not use handholds. The testimony showed that it was a spirited horse, and a number of witnesses testified that the plaintiff did use reins with handholds, and why they were generally used; but it is impossible to imagine that any one of sufficient intelligence to sit on a jury could have been influenced in reaching a verdict by the remark of the court, even if it be conceded to be technical error in making it. If the court was mistaken as to the reason for using reins with handholds, and the reason assigned for rejecting the evidence be conceded to be wrong, it was undoubtedly right in refusing to permit the question to be asked, and its reason for doing so is not material. If it be said that the appellant is not now complaining of the ruling as to the admissibility of the evidence, but of the remark made in giving the reason for the...