Larsen v. Romeo

• Decision Date: 23 June 1969
• Docket Number: No. 232,232
• Parties: Thomas Herman LARSEN et ux. v. Dominick Anthony ROMEO et al.
• Court: Maryland Court of Appeals

Page 220

254 Md. 220

255 A.2d 387

Thomas Herman LARSEN et ux. v. Dominick Anthony ROMEO et al.

No. 232.

Court of Appeals of Maryland.

June 23, 1969.

Dissenting Opinion Aug. 7, 1969.

Earl H. Davis, Washington, D. C., for appellants.

Martin H. Freeman, Upper Marlboro, (Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief) for appellees.

Argued April 9, 1969 before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

Reargued April 28, 1969 before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

MARBURY, Judge.

The appellants, Thomas Herman Larsen and his wife, Alice Rose Larsen, as plaintiffs below, sued the appellees, Dominick Anthony Romeo, Tidewater Express Lines, Inc. (Tidewater) and Hemingway Transport Inc. (Hemingwar) in the Circuit Court for Prince George's County to recover damages, including loss of consortium, resulting from a rear-end collision of the defendant Romeo's tractor, which was hauling a trailer, with the Larsens' automobile. The lower court directed a verdict for Hemingway at the close of the plaintiffs' case on the basis that there was no proof that Romeo was its agent, and directed a verdict for Tidewater and Romeo at the close of all of the evidence. From judgments entered upon those verdicts, the plaintiffs have appealed.

We consider the evidence and all reasonable and permissible inferences to be drawn therefrom in the light most favorable to the appellants. Finneran v. Wood, 249 Md. 643, 241 A.2d 579; Mintzer v. Miller, 249 Md. 506, 240 A.2d 262; Langville v. Glen Burnie Lines, 233 Md. 181, 195 A.2d 717.

On June 22, 1966, a clear and sunny day, Larsen was driving his automobile in a southerly direction on U. S. Route 1 (Baltimore Boulevard). At approximately 11:00 a. m., he brought his vehicle to a stop in the extreme right lane in obedience to a red traffic light at the intersection of Route 1 and Rhode Island Avenue. At that location Route 1 was a four lane highway, two lanes south and two lanes north with no median divider. Its surface was black macadam. The road was dry and almost level. While Larsen was waiting for the light to change, his automobile was struck with substantial force from the rear by a tractor owned and operated by the individual defendant Romeo, and was driven by the impact into a telephone pole located on the right side of the road. As a result of the collision, Mr. Larsen was knocked unconscious, and he was taken from the scene to the Leland Memorial Hospital located in Riverdale, Maryland. The left rear of the Larsen automobile sustained extensive damage, and the right front of Romeo's tractor was also damaged. At the time of the accident, the tractor bore the legend 'Tidewater Express Lines, Inc.' as well as Tidewater's I.C.C. permit number, and it was hauling a 15,000 pound load of freight in a trailer which was marked with the name 'Hemingway.' Fifteen thousand pounds was substantially less weight than the 65,000 pounds that the defendant Romeo was authorized to carry.

As their first witness, the appellants called Officer Richard Tague of the Prince George's County Police. The officer testified that he did not witness the accident but arrived at the scene 'more or less coincidentally.' During the course of his investigation he noticed skid marks left by the rig for a length of 48 feet measured from the rear wheels of the tractor. However, because of the dirt, debris, and glass, he could not tell whether the skid marks were made before or after the impact. When the officer was asked by the appellants' counsel what Romeo told him about the accident, Tague responded:

'He stated that he was traveling south on Baltimore Boulevard in the right lane, that he noticed the light change and he started applying his brakes, too, when he spotted Mr. Larsen's vehicle. Then the second time he applied his brakes, he didn't have no brakes and which he veered his vehicle to the left to avoid the collision but struck the right, the left rear of Mr. Larsen's vehicle with his right front.'

After eliciting medical testimony not pertinent on this appeal, Larsen testified on his own behalf. He stated that prior to being struck he had no warning, such as the sounding of a born, of any impending danger nor did he hear any screeching of brakes. Sicne he was hit unexpectedly from the rear and knocked unconscious, he was unable to identify the driver of the tractor.

The defendant, Dominck Romeo, was called as an adverse witness by the appellants. Romeo testified that he was the owner and operator of the tractor involved in the collision and further testified as to his relationship to the corporate defendants as bearing on the question of agency between them and himself. On direct examination Romeo was asked, 'How close to the rear of the Larsen vehicle were you when you first applied your brakes?' His response was:

'Well, I wouldn't know. That is roughly two years ago. I wouldn't know exactly the distance, but it wasn't very far, because I tried to-well, I put my foot on the brake, tried to stop, and the first time it eased up and then I tried again and I didn't have no air. I didn't have no air at all. And I tried to avoid the accident and I turned to the left and the right front of my tractor hit the back of Mr. Larsen's car.'

No objection or motion to strike this testimony was made by the appellants' counsel. For the second time, the plaintiff had introduced evidence that the accident was caused by a sudden and unexpected failure of the brakes on the Romeo vehicle. However, in order to obtain a responsive answer from Romeo, appellants' counsel read him a portion of his deposition in which Romeo stated: 'I saw him a good piece ahead but I was about, I would say, 25 feet behind him when I tried to apply the brakes.'

On cross examination, Romeo explained that the tractor-trailer he was driving on the day in question had two brake systems, both of the air type. One air hose was used for service, and the other was used as an emergency line. He testified that on the morning of June 22, 1966, he had inspected the hoses to see that they were properly connected to the trailer. He indicated that from the time he looked at the brakes and hoses, hooked up the trailer, and operated the rig up until the accident, his brakes were operating properly. Prior to the accident he had stopped at two or three traffic signals and his brakes were functioning properly at those times. He indicated that as he approached appellants' car he was in low gear and traveling at a speed of approximately 15-20 miles per hour. Further he explained that when he had earlier stated he was 25 feet behind Mr. Larsen's car when he applied the brakes that he meant the second time he applied his brakes, and that 25 feet was just his guess of the distance. He was positive, however, that when he applied the brakes for the second time that there was enough time to come to a complete stop without hitting the Larsen vehicle if the brakes hadn't failed. When asked when his brakes had last had an I.C.C. inspection, he responded a week or two prior to the accident. A buzzer was supposed to indicate by sound that the brake pressure was low but Romeo heard no buzzer prior to the accident. He maintained that even though he was hard of hearing, with the help of his hearing aid he would have heard the buzzer had it sounded. He did testify that the buzzer sounded after he started the engine subsequent to the accident. Finally, Romeo stated that after the accident, either he or a mechanic had taken a piece of hose off his tractor, but that he had thrown it away. On this testimony, the lower court granted directed verdicts in favor of all of the defendants, and this Court concludes that its rulings were correct.

It is axiomatic that in an action for injuries allegedly resulting from a defendant's negligence, the burden is upon the plaintiff to establish that the defendant was negligent and that such negligence was a proximate cause of the injuries. Had the appellants rested after establishing the accident was caused by Romeo, the doctrine of res ipsa loquitur may have come into play. However, the doctrine, which would have obliged the defendants to go forward with the evidence, was not available to them since Romeo, as their witness, attibuted the accident to a sudden brake failure. In Maryland one may call an adverse party as a witness. Code (1965 Repl.Vol.), Article 35, Section 9. However, if one does so, he is bound by his adversary's testimony unless it is contradicted or discredited. Trusty v. Wooden, 251 Md. 294, 247 A.2d 382; Wood v. Johnson, 242 Md. 446, 219 A.2d 231; Lehmann v. Johnson, 218 Md. 343, 146 A.2d 886. As this Court stated in Trusty v. Wooden, supra, quoting Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241:

"When the plaintiff invokes this procedure (res ipsa loquitur), thus putting his reliance upon the inference of negligence springing from the event, it has been authoritatively held that it must not appear by his own evidence, or the evidence adduced in his behalf, that causes for which the defendant was in no way responsible produced the injuries for which damages are sought. * * *

"In this case the plaintiffs themselves proved the details of the happening, foregoing reliance on res ipsa loquitur; and, having undertaken to prove the details, they failed to show negligence on the part of the defendants. Indeed, they explained away the possible inference of negligence. Paradoxically, the plaintiffs proved too much and too little." Id. at 297-298, 247 A.2d at 384.

See also Johnson v. Jackson, 245 Md. 589 at 591, 226 A.2d 883 at 885.

Further, even if we assume, without deciding, that there was some evidence to support a possibility of negligence on Romeo's part, the appellants could not have legally escaped a directed verdict. The appellants' first witness, officer Tague, testified that after the accident Romeo told him that his brakes...