Fowler v. Smith

• Decision Date: 20 October 1965
• Docket Number: No. 440,440
• Citation: 240 Md. 240,213 A.2d 549
• Parties: John A. FOWLER, etc. v. George W. SMITH et ux.
• Court: Maryland Court of Appeals

Page 240

240 Md. 240

213 A.2d 549

John A. FOWLER, etc. v. George W. SMITH et ux.

No. 440.

Court of Appeals of Maryland.

Oct. 20, 1965.

Donald L. Merriman, Baltimore (Merriman & Merriman, Baltimore, on the brief), for appellant.

Phillips L. Goldsborough, III, Baltimore (Smith, Somerville & Case, Baltimore, on the brief), for appellees.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, OPPENHEIMER and BARNES, JJ.

PRESCOTT, Chief Judge.

This appeal involves an action brought by the individual plaintiff, John A. Fowler, and by his employer's workmen's compensation insurer, for personal injuries suffered by Fowler, and compensation paid him as a result thereof. He was injured, while attempting to walk across a public highway in Baltimore County, by a panel truck operated by the defendant, George W. Smith. Smith's wife was joined with him as a defendant, but the trial court directed a verdict in her favor on the ground that there was no showing that she would be responsible under the doctrine of respondeat superior. In the view that we take of the case, it will be unnecessary to determine the correctness of this ruling; hence George W. Smith, alone, will be referred to hereafter as the defendant. The jury returned a verdict in favor of the defendant, and the plaintiff has appealed.

Appellant contends that the trial court (a) committed error in admitting the testimony of the investigating police officer as to a skid mark located on the highway at or near the accident scene; (b) in instructing the jury that there was no evidence in the case legally sufficient to prove that the speed of the defendant's truck caused or contributed to the accident; (c) and in directing a verdict in favor of the defendant, Eleanora Smith.

The accident in question occurred on June 12, 1959, at about 7:30 a. m. on Middletown Road (the Road), a public highway 21 feet in width, in Baltimore County. The road runs generally east and west. The scene of the accident was a point some 300 to 400 feet west of a recently completed bridge over an expressway. The paving of the road had been completed, and it had been open to traffic for several months prior to the accident. The grading work on the approach ramps to the east of the expressway had been completed, but some grading work on the ramps to the west remained to be completed. The plaintiff, Fowler, who was a grade foreman for the construction company working upon the Road, was riding as a passenger on a grader, which was about 8 feet wide by 16 feet long, as it proceeded west over the bridge and to a point about 400 feet west thereof.

The testimony is conflicting as to the position on the roadway of the grader, whether or not it was moving at the time of the accident, and Fowler's actions just prior to the collision. More will be stated with reference thereto under the specific hearings to be considered. Fowler stated that he had an unobstructed view to the west for a distance of some 1000 feet, and claimed that he looked in that direction before alighting from the grader, but observed no traffic approaching. We will now proceed to a consideration of the specific questions raised and add additional pertinent facts thereunder.

I

Appellants first challenge the ruling of the trial court in permitting a police officer to describe a tire mark made by an automobile at or near the point of collision. The rule respecting the admissibility, vel non, of such marks has been set forth in a long line of Maryland cases. These cases, for the main part, are collected and considered in Williams v. Graff, 194 Md. 516, 71 A.2d 450, 23 A.L.R.2d 106 and Miller v. Graff, 196 Md. 609, 78 A.2d 220. The rule, for the purposes of this case, may be stated thus: Positive and certain identification of tire marks on a roadway as having been made by a particular vehicle is not necessary in order to render evidence thereof admissible. However, such evidence should not be admitted unless there is a sufficient showing, either from the time of the observation, from the relative locations of the marks and the car, or from other convincing facts, to support a reasonable inference that the marks had, in reality, been made by the vehicle involved in the accident. Testimony of a witness relative to such tire marks is not rendered inadmissible by the removal of the vehicle prior to the arrival of the witness. Williams v. Graff, supra, and cases cited therein. And testimony regarding such marks is particularly relevant on the issue of whether a driver was proceeding to the left of the center of the highway. Williams v. Graff, supra; Anno.: 23 A.L.R.2d 112, 127.

Applying the rule as above stated, the trial judge was correct, we think, in admitting the police officer's testimony. The plaintiff Fowler contended he was struck when he was on the north side of the center line of the highway, which would have placed Smith's truck on his (Smith's) wrong side of the roadway. He claimed that the operator of the grader pulled off the road onto the shoulder and stopped. He alighted from the grader and could see to his left for a distance of about 1000 feet, and he looked, but saw no traffic coming. After talking momentarily with the operator, he started, without again looking to the west, to cross to the south side of the road, but was struck almost immediately.

Smith testified that he was traveling east on Middletown Road at about 30 miles per hour in his right lane of traffic, and, as he was about to pass the grader headed (or traveling) in the opposite direction, Fowler, without warning, jumped from the grader into the path of his truck. The grader was on the roadway and not on the shoulder. He applied his brakes, but was unable to avoid striking Fowler. He skidded 'a little,' and when he came to a stop in the west-bound lane, Fowler was behind his truck sitting just about in the center of the road. The truck was moved in order to summons assistance, but Fowler was not moved until the police officer arrived.

A Mr. Lee, project engineer of the State Roads Commission, testified that he was traveling in another motor vehicle just behind, and in the same direction as, the grader. The grader was 8 feet wide and was proceeding on the macadam part of the highway; not on the shoulder. Shortly before the time of the collision, he pulled over on the shoulder and passed the grader, which was going about 5 miles per hour, on its right side. Fowler was still on the grader. Lee had passed it 'possibly 25 to 30 feet' when he heard a 'commotion' which was the collision of the truck with Fowler. He immediately went back and saw Fowler sitting 'in the vicinity of the center of the road.'

The police officer arrived at the scene of the accident about 25 minutes after its occurrence. Fowler was 'right in the center of the road,' which was 21 feet in width, without a painted center line. The officer had been on the force some ten years, and had investigated quite a number of accidents; more when he first went on the force than in recent years. He saw a fresh skid mark beginning about 20 to 25 feet west of Fowler in the east-bound (south) traffic lane. The mark was 42 feet in length and, as just stated, was in the east-bound traffic lane.

We think the above testimony was sufficient to support a reasonable inference (if the jury chose to draw the same) that the fresh tire mark located at, or in such close proximity to, the point of collision was made by Smith's truck; consequently, the testimony was properly admitted.

II

The trial court instructed the jury that there was 'no legally sufficient evidence in the case upon which a proper verdict could be based to show that the speed of the motor vehicle which Mr. Smith was driving contributed to or caused in any way the happening of the accident.' This, of course, was a directed verdict in favor of the defendant on the issue of speed. ¹

At this point, it seems desirable to say that the real issue in the case, when tried, was whether the collision occurred to the north of the center of the highway as claimed by the plaintiff or to the south thereof as claimed by the defendant. This issue was squarely presented to the jury; the issue of the speed was not seriously pressed and little testimony was offered with reference thereto. It seems somewhat of an afterthought.

The evidence showed that the official road signs on the highway involved disclosed a speed of 50 miles per hour to be reasonable and proper as a prima facie proposition. Code (1957), Article 66 1/2, § 211(d). The plaintiff offered no original evidence as to the posted speed signs on the Road. On cross examination, when asked if the Road had been opened to traffic, he replied: 'Yes, sir. We had signs placed, construction, 15 mile speed limit.' This was not followed up by any proof as to where such signs had been located, by what authority, if any, they had been placed, or if any of them were located where the defendant would or could have seen them. (The investigating officer did not recall seeing any such signs, and the defendant flatly denied that he saw any.) The imposition of the maximum speed limits upon the highways of this State is a function of the Legislature and the authorities lawfully designated by it to set such limits. Cf. Code (1957), Article 66 1/2, §§ 186, 211. Under these circumstances, the testimony in regard to '15 mile speed limit' signs had no evidential value whatever. Cf. Schutz, Jr. v. Breeback, 228 Md. 179, 178 A.2d 889; State, for Use and Benefit of Hopkins v. Marvil Package Co., 202 Md. 592, 98 A.2d 94.

The only other evidence relative to defendant's speed offered by the plaintiffs was that of a witness by the name of Krout, whose testimony, although referred to in appellants' brief, was not included in their record extract. (It was supplied by the defendant.) Krout was an employee of the construction company working in...