Goldman v. Johnson Motor Lines, Inc.

• Decision Date: 13 January 1949
• Docket Number: 53.
• Citation: 63 A.2d 622,192 Md. 24
• Parties: GOLDMAN v. JOHNSON MOTOR LINES, Inc., et al.
• Court: Maryland Court of Appeals

63 A.2d 622

192 Md. 24

GOLDMAN v. JOHNSON MOTOR LINES, Inc., et al.

No. 53.

Court of Appeals of Maryland

January 13, 1949

Appeal from Superior Court of Baltimore City; John T. Tucker, Judge.

Action by Albert Goldman against Johnson Motor Lines, Inc., and J P. Kimrey to recover for personal injuries sustained in an automobile collision. From judgments for defendants plaintiff appeals.

Affirmed as to judgment in favor of defendant Kimrey and reversed and new trial awarded as to judgment in favor of defendant Johnson Motor Lines, Inc.

Jacob D. Hornstein, of Baltimore (Bernard B. Feikin, of Baltimore on the brief), for appellant.

Robert E. Coughlin, Jr., of Baltimore, for J. P. Kimrey.

James J. Lindsay, Jr., of Baltimore, for Johnson Motor Lines, Inc., appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

COLLINS Judge.

Albert Goldman, plaintiff, appellant here, sued L. R. Christopher, J. P. Kimrey, and Johnson Motor Lines, Inc., in the Superior Court of Baltimore City for damages as the result of an automobile accident. The demurrer prayer of L. R. Christopher was granted at the close of the plaintiff's case and no appeal is taken from that action of the trial court. The jury brought in a verdict for the appellees J. P. Kimrey and Johnson Motor Lines, Inc., and from a judgment on that verdict the appellant appeals here.

As the primary question for our decision is whether the trial judge should have submitted to the jury the question of contributory negligence on the part of the appellant, we will recite the facts in a manner most favorable to the appellees.

About 1 A. M. on January 22, 1946, the appellant, Albert Goldman, and his wife were returning in their DeSoto automobile from Washington to their home in Baltimore. The automobile was operated by the appellant. Somewhere in the vicinity of Halethorpe on the Washington Boulevard the accident occurred. From the testimony it is difficult to determine the width of the Washington Boulevard at that point. However, L. R. Christopher testified that two cars can travel southbound on the southbound lane toward Washington. He said he could not judge the distance and does not know whether three cars could travel southbound in that southbound lane or not. He did not know about the width of the northbound lane toward Baltimore. Mrs. Flora Goldman, the wife of the appellant, testified that three cars 'could go in either direction along side of each other. I think three on each side.' From this testimony it therefore appears that at the scene of the accident the Washington Boulevard is a four lane highway. The appellant testified that there was a side fence on both sides of the road because there is a steep decline behind that fence. The appellant also testified that he was driving about twenty-five miles an hour because it was 'dangerous to drive', a 'miserable' night, it was 'drizzling' and there was about a half inch of snow on the road.

In the vicinity of Halethorpe, where the road was level, a Chevrolet truck, owned by L. R. Christopher, passed the appellant at a rate of fifty to sixty miles an hour. This passing truck threw snow on the appellant's windshield. After the snow had dissolved appellant saw Christopher's truck collide head-on with an automobile driving toward Washington which later proved to be a Lincoln Zephyr. There is a slight elevation in the road just before reaching the scene of the accident. The Lincoln Zephyr was knocked across the road with its rear against the fence or guard rail on the Baltimore bound side of the road and its front end sticking out five or six feet in the Baltimore lane of traffic. The Lincoln after the accident had at least one headlight on and was pointed at a slight angle toward Washington with its rear left door about two feet from the fence. Appellant says he drove his DeSoto automobile past the scene of the accident and parked it about fifty feet beyond the Lincoln Zephyr and as close to the side of the road as he could. Christopher, however, stated that Goldman left his car on the right side of the road but it lacked about five or six feet being off the concrete road. Goldman's car was parked about fifty feet behind Christopher's truck. Christopher says he left his truck in the center of the Washington Boulevard with all six red rear lights burning. The appellant's car was parked fifty feet beyond the Lincoln Zephyr and fifty feet behind the Christopher truck. The distance then between the Christopher truck and the Lincoln Zephyr was about one hundred feet. Goldman then got out of his car and went back to render what aid he could to the passengers in the Lincoln. When he approached that car the occupants were 'screaming'. He went around to the left rear door of the car and stood in the two foot space between the automobile and the fence and tried to open the left rear door of the wrecked automobile. Christopher and his helper were then on the right hand side of the Lincoln Zephyr trying to open the doors on that side. Christopher saw the Johnson tractor-trailer coming from Washington and called to Goldman: 'Look out, there is another truck coming'. The Johnson tractor-trailer hit the Lincoln Zephyr a 'glancing lick' and moved it slightly toward the guard rail where Goldman was standing. Goldman was knocked down and dragged, Goldman says, about ten or twelve feet. The Johnson tractor-trailer then crashed into the rear of the parked Goldman car in which Mr. Goldman was sitting. Christopher testified on re-direct examination that after Goldman parked his car back of the Christopher truck there was no space on either side of those vehicles for any other traffic to get by. He said: 'After Mr. Goldman came in there; it was just two roads, one going north and one going south. He stayed on the road, he didn't pull over to the side.' He said Goldman's car blocked the road and there was no way for the Johnson tractor-trailer to get by. However, on re-cross examination Christopher testified that Goldman's car was on the right-hand side of the road but it lacked about five or six feet being 'off the road'.

Appellant contends that the trial court erred in refusing to allow him to testify as to the previous profits from his business or to establish the effect of his disability on the operation of that business, thereby precluding appellant from proving the loss of earnings resulting from his injuries. It was proper, of course, for the appellant to show his loss of earnings resulting from the accident. We agree, however, with the ruling of the trial judge on the questions propounded by the appellant. Those questions were too vague, indefinite and general to lay a proper foundation for the questions asked. Some of the questions asked called for conclusions of the witness. The appellant should previously have shown the nature of his business and laid a proper foundation for the questions. Baltimore & O. R. Co. v. Thompson, 10 Md. 76, 83, 84; Evans v. Murphy, 87 Md. 498, 503, 504, 40 A. 109; Snowden v. State, 133 Md. 624, 634, 106 A. 5; State, for Use of Thompson v. Emerson & Morgan Coal Co., 150 Md. 429, 444, 133 A. 601; Fleischman Transp. Co. v. Egli, 163 Md. 663, 164 A. 228; Burch v. Prudential Ins. Co., 184 Md. 664, 671, 42 A.2d 671, 163 A.L.R. 1466. At the retrial of the case such a proper foundation can be laid.

Appellant further contends that the trial judge should have instructed the jury as to the doctrine known as the 'rescue doctrine'. There is nothing in the record to show that appellant requested the trial judge to instruct the jury on that doctrine, or that he made any objection to the instruction on that ground to the trial judge. We are therefore unable to pass upon that question on appeal. Rule 6(c) of the General Rules of Practice & Procedure, part three, Section III; Fisher v. Baltimore Transit Co., 184 Md. 399, 402, 41 A.2d 297. The trial judge in his instructions to the jury made the following statement: 'As to contributory negligence, however, the burden is on the defendant. The defendant has the burden of proving that the plaintiff in the case was guilty of contributory negligence, that is proving it by a fair preponderance of the evidence, and as I said before, by that term is meant the evidence that is most satisfactory to your minds, and most convincing, and if you are unable to determine whether contributory negligence existed or not you would have to conclude that it did not.' The attorney for the appellant excepted to that part of the charge on the ground that there was no testimony produced of any contributory negligence. The trial judge refused to amend his charge.

In his brief the appellant apparently abandoned this objection to the charge and stated: 'Appellant does not now contend that it was error to submit the question of contributory negligence to the jury.' However, in the argument in this Court he contended that the question of contributory negligence should not have been submitted to the jury and as this objection was presented to the trial judge, it is properly before us on appeal. Rule 6(c) of the General Rules of Practice and Procedure, Part three, Section III, supra.

We are of the...