Holler v. Lowery

• Decision Date: 14 June 1938
• Docket Number: 67.
• Citation: 200 A. 353,175 Md. 149
• Parties: HOLLER v. LOWERY.
• Court: Maryland Court of Appeals

200 A. 353

175 Md. 149

HOLLER v. LOWERY.

No. 67.

Court of Appeals of Maryland

June 14, 1938

Appeal from Circuit Court, Allegany County; William A. Huster Judge.

Action by Sarah V. Lowery against Harvey L. Holler and another for injuries sustained as a result of being crushed between automobiles of defendants. From a judgment for plaintiff against both defendants, named defendant appeals.

Affirmed.

George Henderson, of Cumberland, for appellant.

Lewis M. Wilson and W. Earle Cobey, both of Cumberland, for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

OFFUTT Judge.

Sarah V. Lowery, the appellee in this case, was injured on April 6th 1937, while on the McMullen Highway near the Celanese Plant, which is located about four miles southwest of Cumberland, as the result of a collision between two automobiles, one operated by Harvey L. Holler, the appellant the other by James H. Stevens.

Alleging that the accident was caused by the concurring negligence of the two defendants she brought this action in the Circuit Court for Allegany County to recover for her injuries. The trial of the case resulted in a verdict and judgment for the plaintiff against both defendants, and from that judgment Holler took this appeal.

The record submits five exceptions of which the first two relate to the court's rulings on the admission of evidence, and the last three to its rulings on the prayers.

It was undisputed that the plaintiff and a woman who was with her at the time, was struck by an automobile driven by Stevens proceeding along the McMullen highway on the wrong side and forced against another automobile driven by Holler and injured. In the course of the trial one Gilbert Garlitz was offered as a witness for the plaintiff. He had testified that he had 'seen the car hit Miss Lowery', that he had seen the 'Holler car pull out * * * as though he was getting ready to leave', and that he had been 'beside the Stevens car when it pulled out', and he was then asked 'Did you see whose car it was that had crushed the Lowery girl', an objection to the question was overruled and that ruling is the subject of the first exception. Apart from the assumption that the two cars 'crushed' the plaintiff there was no possible criticism of the question. To crush may mean to compress with violence so as to bruise or break, the plaintiff had been pinched between the two cars so that her legs were broken, and she was severely bruised and lacerated about the body, there was therefore no discoverable impropriety in the use of the word 'crushed'. No objection was made to the question at the time on the ground that it assumed a fact so that objection on that ground is not open for review, Poe's Prac. sec. 261, 70 C.J. 538, 539, 549. There was therefore no error in that ruling. Lange v. Affleck, 160 Md. 695, 155 A. 150, 79 A.L.R. 1274; Carter v. Reardon-Smith Line, 148 Md. 545, 129 A. 839; 4 C.J.S., Appeal and Error, 588, 589, § 295. It is true that the court in Martin Fert. Co. v. Thomas & Co., 135 Md. 633, 639, 109 A. 458, treated the overruling of what appears to be a general objection to such a question as a non reversible error, but it cannot be presumed that it intended to modify the rule that an objection to a question on the ground that it assumes an unproved fact must be made when it is asked and on that very ground and to place upon trial courts the impossible burden of analyzing every question to which there is a general objection and comparing it with all the evidence to see whether its predicate has been proved.

The second exception lacks substance. The appellant Holler had already testified that he had seen the Stevens automobile from the 'moment it had pulled out until the accident occurred', and that when he first noticed the Stevens car 'it was about eight cars to my right pulling out'. The witness was then cross examined, and on re-direct was asked 'how far away was the Stevens car when you first knew that he was going to strike your car?' The refusal of the court to allow that question is the subject of the second exception. There was no error in the ruling (1) because it was not proper re-direct examination, (2) it had once been substantially answered, (3) because it assumed a fact not proved, which would have justified its refusal although for reasons stated above that objection would not have been open to the appellee had it been allowed since he did not object to it on that ground, and (4) because the allowance or refusal of the question on re-direct was within the discretion of the trial court.

The exceptions Nos. three and four, relating to the rulings on the prayers offered by the plaintiff and Holler were not pressed in this court and may be disregarded.

The defendant Holler offered eleven prayers. Of them his A, B, C, D prayers, which in one form or another were offered as demurrers to the evidence were refused. His D prayer, offered as a variance prayer was refused. His F prayer a jury prayer was also refused, and his G, H, I, J and K prayers jury prayers were all granted. The refusal of his A, B, C, D, E and F prayers, the subject of the fifth exception, requires a review of the evidence tending to support the plaintiff's claim, since the first three of those prayers, submit his contention that there was no evidence in the case legally sufficient to permit a recovery. His D prayer was too general in form to submit any issue of law and will not be considered.

There was in the case evidence tending to show facts which in the following narrative are assumed to be true: The McMullen Highway running southwesterly from Cumberland passes the Celanese Plant and continues through Cresaptown in the direction of Keyser, West Virginia. The plant is located on the south side of the road. The road itself in front of the plant is thirty feet wide, having a nineteen foot macadam center strip and a sixty six inch concrete shoulder on either side. On the plant side of the road, the south side, there is an open unpaved space between the side of the shoulder and a fence, about twelve feet six inches wide, and on the opposite, the north side, a similar space between the northern shoulder and a fence on that side of the road. The Celanese Corporation is an industrial manufacturing company, employing a large number of persons who work in shifts. Sarah V. Lowery, then about thirty one years of age, unmarried and residing in Cumberland, was on April 6th, 1937, one of twenty five hundred persons who were employed on the shift which worked from three o'clock in the afternoon until eleven o'clock at night.

Many of the employees lived in Cumberland, in Cresaptown, and in other places in the surrounding country at some distance from the plant. Buses, hiring cars and private automobiles were employed to furnish them transportation to and from their homes. These automobiles were customarily parked, facing the road at a slight angle, in the open space between the road and the fence on each side of the road. From their parked positions the cars would pull out into the highway and proceed either towards Cumberland or towards Cresaptown. That was done without any definite plan or order so that cars parked on the same side might proceed in either direction. Speaking of that custom Gilbert Garlitz, engaged in the business of carrying passengers for hire to and from the plant, testified: 'On that night cars were parked all around on the right side too, two lanes of them facing toward Cumberland, on the right side. After they had their loads (passengers) they would pull out and go in both directions. The ones on my side more than likely would come to Cumberland.'

When the shifts change, with so many employes beginning and stopping work, there is naturally much movement and confusion in the road in front of the plant as the employes enter and leave.

On the night of April 6th 1937, the road immediately in front of the plant was thronged with pedestrians, automobiles were pulling out from their places in the parking lines, on the north side of the road, facing Cresaptown two buses were parked on the road, and on the side facing the road about one hundred cars were parked, on the other side facing Cumberland many other cars were standing either facing Cumberland or facing the highway.

Into that scene of confusion the appellee entered on her way from the factory to an automobile parked on the north side of the highway in which she expected to be driven to her home in Cumberland. In obedience to a signal from a traffic officer she crossed to the north side of the road and walked over and along the concrete shoulder towards Cumberland facing traffic. After she had proceeded a distance equal to the width of about twenty cars, an automobile driven by Holler suddenly and without warning left its place in the parking line on the north side of the road, grazed her leg with its running board and stopped in such a position as to block her further progress over and along the concrete shoulder. She said to the driver: 'Where do you think you are going?' While she was still facing the Holler car, an automobile driven by Stevens on the wrong side of the road in the direction of Cumberland coming from behind her struck her and drove her against the Holler car, and inflicted upon her serious, painful and permanent injuries.

The Stevens car had also been parked on the north side of the road. Stevens himself had for the first time, on the day of the accident, been given a license to drive an automobile in Maryland. As he left his parking position he attempted to cross to the south or plant side of the road to proceed towards Cumberland. For some reason not clearly explained he turned back towards the north side...