Johnson v. Jackson

• Decision Date: 09 March 1967
• Docket Number: No. 109,109
• Citation: 245 Md. 589,226 A.2d 883
• Parties: Isaiah JOHNSON v. Billie JACKSON and William Jackson.
• Court: Maryland Court of Appeals

Page 589

245 Md. 589

226 A.2d 883

Isaiah JOHNSON v. Billie JACKSON and William Jackson.

No. 109.

Court of Appeals of Maryland.

March 9, 1967.

Howard G. Reamer, Baltimore, for appellant.

J. William Schneider, Jr., and Fanseen, Schneider & Hymes, Baltimore, for appellees.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.

FINAN, Judge.

On March 7, 1964, at approximately 4:00 p.m., the appellant, Isaiah Johnson, was standing facing the front of his car, which was parked in the alley in the rear of 2723 East Federal Street, Baltimore, Maryland, preparing to put oil in it, when he was knocked to the ground by a 1959 Buick, which had come to rest against his vehicle. Some five or ten minutes previously, appellee Billie Jackson had parked the Buick, owned by the appellee William Jackson, in the alley behind the 2700 block of East Federal Street-some nine houses west of the appellant's car. The alley slopes downward from west to east, thus the appellant's vehicle was parked downhill from the Buick.

The appellant filed suit for personal injuries and property damage in the Superior Court of Baltimore City, alleging that the appellees, who were named as defendants, were negligent 'in failing to comply with the law requiring vehicles parked on a perceptible grade to have the hand brake on, to have the front wheels turned to the curb * * * to stop the engine, and lock the ignition and remove the key; * * *.' Appellant further charged that the appellees were negligent in allowing Dwyne Jackson, their minor nephew, of whom they had custody and control, 'to play in the automobile, thereby causing said automobile to drift towards the plaintiff and cause the collision, * * *.'

Appellees filed a motion for summary judgment. In his affidavit in support of his answer to the appellees' motion for summary judgment, appellant made oath as follows:

'That suit has been filed by the Plaintiff herein, alleging that on March 7, 1964, he was struck by a vehicle which had been parked by the Co-Defendant, Billie Jackson, and which was owned by the Co-Defendant, William Jackson, after the vehicle was caused to start by Dwyne Jackson, the child of the Defendants, George Jackson and Frances Jackson.

'The Affiant, Isaiah Johnson, avers he is competent to be a witness, and has personal knowledge of the facts herein stated.'

The appellant also in answer to the 'Defendants' Interrogatory No. 2,' which requested the names of all eyewitnesses to the accident known to the appellant, listed the names and addresses of six individuals, all living in Baltimore, Maryland.

At the trial of the case the appellant, apparently relying on the doctrine of res ipsa loquitur, produced no witnesses other than himself. He presented no proof as to the manner in which the appellees' car was parked and made no mention of the presence of any third party at, in, or near the appellees' Buick. Appellant confined his evidence to testimony establishing the fact that he was struck by the drifting car of the appellees, sustained extensive personal injuries and property damage to his vehicle, and that he himself did not in any way contribute to the happening of the accident.

However, he did relate in his testimony that, '* * * and just before I heard someone holler, 'Daddy', just as I was hit, I should say.' This testimony is particularly significant in that it is indicative that within the knowledge of the appellant, someone other than the appellant, was present at or near the scene of the accident at the time that it occurred.

At the conclusion of the appellant's case appellees moved for a directed verdict which was granted. This appeal followed.

The question, before this Court on appeal, is whether or not the evidence introduced by the appellant presented a case for the application of the doctrine of res ipsa loquitur.

In the lower court Judge Grady gave the following reason in support of his action granting the appellees' motion for a directed verdict:

'it seems to me that it is more probable, from the very nature of the circumstances surrounding the incident, that something occurred after the car was parked for five or ten minutes to start its motion, rather than that a car which had been motionless for five or ten minutes would start by itself. * * *. As I say, an automobile, unlike a pile of bricks or a pile of blocks, is subject to motion, and it seems to me that it is more probable that a car which has been at rest for a substantial interval of time was put in motion by the action of some force other than the weight of the car itself. Consequently, I don't think the jury can be permitted, in the absence of any specific act of negligence on the part of the owner, to pass on the question of whether this car was put in motion by some act of omission on the part of the driver who parked it.

'I feel that in this case the Plaintiff has failed to show the kind of control over the vehicle, from the time it was parked to the time of the impact, which the doctrine of res ipsa loquitur requires. Consequently, a verdict will be directed in favor of the Defendants.'

To paraphrase the comments of the trial judge, he thought that in viewing all of the evidence produced by the appellant, it was reasonable to assume that the parked vehicle, after having remained stationary on an incline for a period of from five to ten minutes, would not of its own accord have drifted downhill, unless an independent act of some third party had intervened, starting it in motion.

His comments also are pregnant with the thought that since the vehicle had remained stationary on the incline from five to ten minutes, there was no reasonable inference to be drawn from the facts indicating that the appellee Billie Jackson had been negligent in the manner in which she parked the vehicle.

This Court has repeatedly held, when considering the doctrine of res ipsa loquitur, that the doctrine will not apply when it appears that the injury may have been caused by the independent act of a third person or intervening cause. '* * * in such a situation the plaintiff is not permitted to recover until he excludes the independent neglect of the third party as the efficient and proximate cause of the injury.' Frenkil v. Johnson, 175 Md. 592, 605, 3 A.2d 479, 484 (1939); State for Use of Parr v. Board of County Commissioners of Prince George's County, 207 Md. 91, 104-105, 113 A.2d 397, 403 (1955); Coastal Tank Lines v. Carroll, 205 Md. 137, 145-146, 106 A.2d 98, 101 (1954).

It is interesting to note that the Restatement of the Law of Torts (Second) § 328 D, comment f (1965) p. 160, gives the following illustration as a situation calling for the application of the doctrine of res ipsa loquitur.

'5. A leaves his automobile parked on the side of a hill. Two minutes later the car runs down the hill and injures B. In the absence of other evidence, the explanation is possible that some meddling stranger has tampered with the car, or that it has been struck by another vehicle. It may, however, reasonably be inferred that, more probably than not, the event occurred because of...