Greer Transp. Co. v. Knight

• Decision Date: 25 June 1929
• Docket Number: 29.
• Parties: GREER TRANSP. CO. v. KNIGHT.
• Court: Maryland Court of Appeals

146 A. 851

157 Md. 528

GREER TRANSP. CO. v. KNIGHT.

No. 29.

Court of Appeals of Maryland

June 25, 1929

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by W. Scott Knight against the Greer Transportation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

R. H Archer, Jr., of Bel Air, and J. F. H. Gorsuch, Jr., of Towson (H. Courtenay Jenifer, of Towson, and J. Glasgow Archer, of Bel Air, on the brief), for appellant.

A Freeborn Brown, of Havre de Grace (Wm. P. Cole, Jr., of Towson, on the brief), for appellee.

SLOAN J.

This is an appeal from a judgment in favor of the appellee (plaintiff), against the appellant (defendant). There are ten exceptions, of which the first six are to rulings on the evidence, the seventh to the overruling of the defendant's special exceptions to the plaintiff's first, second, and fourth prayers, the eighth to the granting of the plaintiff's prayers, the ninth to the sustaining of the plaintiff's special exceptions to the defendant's third, fifth, and eighth prayers, and the tenth to the refusal of the defendant's first, 1A second, third, fifth, seventh, eighth, ninth, tenth, eleventh, and thirteenth prayers, the court having granted the defendant's fourth and sixth prayers.

The defendant's first prayer prayed the court to instruct the jury as a matter of law that the plaintiff was guilty of negligence contributing to the happening of the accident complained of; the defendant's 1A prayer was a demurrer to the evidence; the defendant's second prayer prayed an instruction that there was no evidence legally sufficient to prove negligence on the part of the driver of the defendant's truck. It is therefore necessary to discuss all the evidence, in so far as it relates to the negligence of both parties, and the legal sufficiency of all the evidence.

On the morning of August 14, 1928, the plaintiff, who was a farmer living near Hopewell, in Harford county, Maryland, was driving his automobile on the Bel Air road southward on his way to Baltimore, accompanied by his wife and his wife's sister. On the same road, and going in the same direction and to the rear of the appellee, Hale Rhudy was driving a milk truck for the Greer Transportation Company, the appellant. On a bridge at Stemmer's run, between Fullerton police station and Overlea, the cars came together, resulting in the plaintiff's car being badly damaged and the occupants more or less injured.

The Bel Air road at this point and vicinity was being improved by the addition of a ten-foot concrete shoulder. In the neighborhood of the accident, except for the length and width of the Stemmer's run bridge, the concrete shoulders were at a higher elevation than the original part of the road between the shoulders, which had not yet been graded, so as to conform with the grade of the shoulders. At a few places dirt had been placed on the old macadam bed, so as to allow vehicles to be driven from the old roadbed onto the shoulder, or off the shoulder to the macadam. When the plaintiff came to the Stemmer's run bridge, he attempted to drive from the macadam part of the road onto the right shoulder, and just as the front part of his car had gotten on the shoulder the truck collided with the plaintiff's touring car; the front part of the truck hitting the touring car on the right side, between the front and rear wheels. The appellant vigorously charges the appellee with contributory negligence for not giving its driver some warning of his intention to leave the macadam portion of the road and proceed southward on the shoulder, but it is our opinion that the record shows no act of negligence on the part of the appellee contributing to the accident.

We cannot yield to the suggestion or inference to be drawn from the appellant's contention that, because the Bel Air road was under repair and improvement, this made any change in the well-recognized "rule of the road." If the condition of the road at the point of the accident meant anything to travelers, it would be that greater care should be demanded of a user to make travel safe for others, and the mere addition of the shoulders before the macadam center was regraded did not give any one who might be riding the shoulder the right to appropriate it to the exclusion of any who might be in his way. This brief statement of the situation of the parties at the point of the collision, it seems to us, is ample to show that there was sufficient proof of negligence of the appellant's driver to entitle the plaintiff to have the case submitted to the jury.

The first exception was to questions put to Dr. William S. Archer, a physician residing in Bel Air, who had twice examined the plaintiff, the first time early in October, and the last time about the middle of November, and who testified that from his two examinations in his opinion the plaintiff was suffering from a concussion of the spinal cord, the effect of which does not usually appear at once, but is progressive, and that between the two examinations the case had slightly progressed. The question objected to was, "Doctor, from the examination which you have made of Mr. Knight, and of the detailed complaint of his suffering, and so forth, what are the probabilities for his getting over it?" to which the court added, "Change that to examinations made in October and November;" the second exception being on the motion to strike out the answer to this question, which was: "The history of these cases is that this disease is progressive." The third and fourth exceptions were to variations of the first question excepted to, the final answer of Dr. Archer being:

"From this slight progression of the trouble up to the time of the middle of November, by which time he should have recovered from minor injuries, the probability--I do not say it is certain--but the probability is that they would continue to increase. That is just my view of it."

On cross-examination, witness testified that when plaintiff came to him in November he stripped him and went over his back, and the plaintiff told him the pains were in the same place that he previously told him they were in October.

"Q. Now, doctor, you relied more on his physical actions and his complaints than you did upon your own physical examination of him, did you not? A. Relied more on his actions and what else?

Q. And what he said to you. A. And what he said; yes. When you believe a man is truthful, and he comes to consult a physician, why you have got to accept his story; but, of course, that was not enough.

Q. Under certain circumstances I agree with you. A. Then I say, in addition to that, there was his general appearance that showed a lower tone, no paralysis, he had a--except you might say in, I think it was his left leg, he did not have the same control over it, and had a certan amount of pain in that. That was the result of the first examination. His eyesight--and, by the way, that blurring you see--this concussion does not affect the eyes at once; it often comes on later. However, that was still there; things looked blurred to him. The point of that was that he had never noticed that before. I tried to give him a thorough examination to satisfy myself."

Witness further testified that plaintiff had concussion of the spinal cord, so as to affect him in the manner described, which could not be detected by X-rays, as "X-rays do not tell everything."

The fifth and sixth exceptions were to the overruling of objections to questions put to Dr. Charles Richardson, who had made an examination of the plaintiff on November 16, 1928, and again on January 18, 1929, the first of the questions being, "From the examination and the tenderness and so forth that you found upon your examination, what effect, if any, would that have upon him working as a farmer?" which was not answered, but was followed by the question, unobjected to, "There was not any improvement?" the answer of the doctor being, "I did not notice if there was;" the next question excepted to being, "From the examination and the tenderness and so forth that you found upon your examination, what effect, if any, would that have upon him working as a farmer?" to which was answered, "Well, it has been several months since this accident occurred, and they did not seem to be improving the way these cases do as a rule to make complete and quick recovery. Therefore it looks like it might be a chronic case."

Dr Gallion, the plaintiff's family physician, who was called to the plaintiff's house the day after the accident, testified that at that time the only evidence of injury he found upon his examination was that the plaintiff had a slight swelling on the left side of his neck, complained of having muscular soreness more or less all over his body, was able to move about and walk around, was in his yard when the doctor called; that he prescribed rest and advised hot applications, in case the swelling did not disappear in a day or two. He saw him again August 19th, when the plaintiff complained of his back hurting him when he stooped over or lifted anything, and the doctor said that when he pressed him in the regions where he complained the plaintiff would flinch; that he saw him again on August 25th, when he was still complaining; didn't see him again until November 9th, when he prescribed medicine and strapped the lumbar region of his back and the upper part of the sacral region with adhesive; that if an injury similar to the one complained of by the plaintiff is severe enough, it is impossible to use the muscles without some pain; that the injuries of which the plaintiff complained would be the probable and natural result of injuries...