Lindenberg v. Needles

• Decision Date: 02 July 1953
• Docket Number: No. 169,169
• Citation: 97 A.2d 901,203 Md. 8,40 A.L.R.2d 226
• Parties: , 40 A.L.R.2d 226 LINDENBERG v. NEEDLES et al.
• Court: Maryland Court of Appeals

Page 8

203 Md. 8

97 A.2d 901, 40 A.L.R.2d 226

LINDENBERG v. NEEDLES et al.

No. 169.

Court of Appeals of Maryland.

July 2, 1953.

James R. Crook, Jr., and John D. Alexander, Baltimore (Wm. Pepper Constable and Constable, Alexander & Daneker, Baltimore, on the brief) for appellant.

Clater W. Smith, Baltimore (M. King Hill, Jr., and Clark, Thomsen & Smith, Baltimore, on the brief) for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

Dr. Richard Lindenberg sued John O. Needles and Ellen Wilson Needles, his wife, to recover for injuries he sustained when his lift hand came in contact with the rear of a station wagon owned by Mr. Needles and driven by his wife. Either the jury was not persuaded by the plaintiff's testimony as to the negligence of the defendant, Mrs. Needles (Mr. Needles was let out of the case by the trial court) or was persuaded by the defendant that the plaintiff was guilty of contributory negligence. The basis of Dr. Lindenberg's appeal from the judgment for the defendant is that there was no evidence of contributory negligence on his part and that the trial court erred in instructing the jury that they might find for the defendant if they determined that he 'could have avoided injury to his arm or wrist by the exercise of ordinary care on his part.' There was an exception to the instruction on the ground that there was no evidence legally sufficient to carry this issue to the jury.

The record discloses that Dr. Lindenberg, driving in the southernmost lane on Franklin Street (a one-way westbound street in Baltimore City), crossed Charles Street and as he did so, observed the station wagon directly ahead of him. Midway of the block between Charles and Cathedral Streets, Mrs. Needles gave a hand signal indicating that she was slowing down, and then one indicating a left turn into a parking lot, the driveway of which opens on to the south side of Franklin Street. When he observed Mrs. Needles' signal that she was turning to the left, the doctor brought his car to a stop; as he says: 'I came to a complete stop until Mrs. Needles pulled her car onto the sidewalk and had cleared the lane.' He had put his hand out to indicate that he was stopping, and after Mrs. Needles came to a stop on the inclined apron which crossed the pavement from the curb to the parking lot, Dr. Lindenberg drove slowly forward. The traffic light at the intersection of Cathedral and Franklin Streets to the west of him had turned red and all of the cars in front of him had stopped. The parties are in disagreement as to what then ensued.

The appellant's version is that as his car came even with the rear end of the station wagon standing on the inclined ramp leading up to the parking lot, it suddenly and without warning rolled backward into Franklin Street. The doctor thus describes it: '* * * suddenly I saw with a glance her car started rolling back, and at the same moment I tried to go more to the right and pull in my arm or tried to take in my arm, and while I was doing that I felt a blow against my wrist and suddenly found that my arm was in the car, came immediately to a stop, the rear end of my car being approximately at the level of her car and just in the center of the lane.' He looked at his hand and realized that he had a Colles fracture. The plaintiff testified that there was no contact between the rear of the station wagon and his automobile, although in his 1941 model car, the front and rear fenders project out from the body of the car.

The appellee's version of the accident is that she was driving in the south lane on Franklin Street, pulled up onto the apron leading into the parking lot and stopped because the lot was full and she had to walt for the attendant to tell her whether he would have space for her. Shortly after that, Dr. Lindenberg's car stopped approximately ten or twelve feet to the west of her and he got out, holding his wrist. She rolled down the window and asked him if she could be of any help, and he said, according to her: 'No, I hurt my wrist. It isn't your fault.' The parking lot attendant came up, took her car, and she went on to her place of employment near by on Charles Street. She thinks that she was on the apron approximately a minute, in any event, an appreciable length of time, before Dr. Lindenberg stopped his car. Her foot brake was on and she says her car did not move back during that time. She felt no impact or jar at any time. Because there was no space in the parking lot, she thinks that part of her car was hanging over the curb line of the street--some projection. 'Just merely over the gutter,' she says.

The Court instructed the jury that if they found that as Dr. Lindenberg was driving west on Franklin Street, Mrs. Needles' car backed down a slight incline, came into his hand as he had it outside, and that the reason he had it outside was to signal the cars behind him, then the verdict should be for the plaintiff; and on the other hand, if they should believe the defendant's version that her car did not back into the hand of Dr. Lindenberg, then the verdict should be for the defendant. Then, after instructing the jury as to damages and burden of proof, the Court told them: '* * * if you find that the defendant did back her station wagon or allow it to drift backwards as the plaintiff was attempting to pass the rear of it, yet if you further find that the plaintiff could have avoided injury to his arm or wrist by the exercise of ordinary care on his part, then he is not entitled to recover and vour verdict must be for the defendant.'

After the exception to this instruction as to contributory negligence, the Court redefined burden of proof by telling the jury that the burden of proving primary negligence on the part of the defendant is on the plaintiff, and the burden of proving contributory negligence on the part of the plaintiff is on the defendant.

The case invokes familiar principles. It is constantly reiterated in the books that contributory negligence cannot be found as a matter of law, unless the evidence permits of but one interpretation which shows some prominent and decisive act in regard to which there is no room for ordinary minds to differ. Beck v. Baltimore Transit Co., 190 Md. 506, 58 A.2d 909; Crunkilton v. Hook, 185 Md. 1, 42 A.2d 517; Brown v. Bendix, etc., Aviation Corp., 187 Md. 613, 51 A.2d 292.

Conversely, if there is no evidence of acts or conduct from which a reasonable mind could find or infer negligence on the part of a plaintiff, it is error to instruct a jury as to contributory negligence. Goldman v. Johnson Motor Lines, 192 Md. 24, 63 A.2d 622; Garozynski v. Daniel, 190 Md. 1, 57 A.2d 339; Anne Arundel County Com'rs v. Carr, 111 Md. 141, 73 A. 668; Sieland v. Gallo, 194 Md. 282, 71 A.2d 45; and Klein v. Dougherty, Md., 87 A.2d 821.

In the absence of the prominent and decisive act which constitutes contributory negligence as a matter of law, the question as to such negligence is for the jury. The burden of proving contributory negligence is on the defendant. Klein v. Dougherty, and Goldman v. Johnson Motor Lines, both supra. That is to say, that if the plaintiff has produced evidence which would justify a finding that the defendant was guilty of negligence directly contributing to the injury complained of, and does not reveal by his testimony that he was guilty of contributory negligence, it is incumbent upon the defendant, if he relies on that defense, to present the facts from which the plaintiff's negligence may either be found or properly inferred. If the plaintiff does not himself adduce evidence of negligence on his part, and the defendant fails to produce testimony which will justify a finding of such negligence, the Court should not instruct the jury at all as to contributory negligence, or should instruct the jury, as a matter of law, that the plaintiff was not guilty of contributory negligence.

Rule 4 (III, Rules of Practice and Procedure) provides that: 'In any proceeding tried by jury any party may move, at the close of the evidence offered by an opponent or at the close of all the evidence, for a directed verdict in his favor on any or all of the issues.' The Court said in Garozynski v. Daniel, supra [190 Md. 1, 57 A.2d 341]: 'We perceive no reason why a peremptory instruction should not be granted at the instance of either party, if the circumstances permit of only one inference.' The exceptions of the appellant to the Court's charge on contributory negligence amounted, in substance, to a request for a directed verdict for the plaintiff on the issue of contributory negligence.

The appellant was entitled to this instruction if there was no evidence from which a reasonable mind could find or infer that he had directly contributed to his own injury by behaving as an ordinarily prudent man would not behave, under the circumstances. Garozynski v. Daniel, and Goldman v. Johnson Motor Lines, both supra. In determining whether there was evidence in the case, which required the jury to consider the issue of contributory negligence, the testimony must be viewed in the light most favorable to the defendant below, the appellee here, on whom rested the burden of showing such negligence on the part of the plaintiff, the appellant here. Goldman v. Johnson Motor Lines, supra; Mitchell v. Dowdy, 184 Md. 634, at pages 639, 640, 42 A.2d 717; Poe, Pleading and Practice, Vol. II, Tiff. Ed., Sections 293, 295 and 295(a); and Greer Transportation Co. v. Knight, 157 Md. 528, 539, 146 A. 851.

Putting the evidence on the scales approved by the cases, we find that there was no error in the Court's...