Marine v. Stewart

• Decision Date: 14 November 1933
• Docket Number: 27.
• Citation: 168 A. 891,165 Md. 698
• Parties: MARINE v. STEWART.
• Court: Maryland Court of Appeals

168 A. 891

165 Md. 698

MARINE v. STEWART.

No. 27.

Court of Appeals of Maryland

November 14, 1933

Appeal from Baltimore Court of Common Pleas; Joseph N. Ulman, Judge.

Action by Harry E. Stewart against Daniel Marine. From a judgment for plaintiff, defendant appeals.

Affirmed.

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

John C Kump, of Baltimore, for appellant.

Biscoe L. Gray, of Baltimore (J. Wilson Ryon, of Hyattsville, on the brief), for appellee.

SLOAN Judge.

About 10 o'clock on the night of July 4, 1931, the plaintiff Harry E. Stewart, was driving on a state road, in Prince George's county, then being improved by the defendant Daniel Marine, under a contract which he had with the state roads commission, by which, according to an agreed statement "the contractor was to provide and erect and maintain all necessary barricades, suitable and sufficient road-lights, danger signals and signs; and provide a sufficient number of watchmen and take all necessary precautions for the protection of the work and the safety of the public." All barricades on closed roads to be illuminated at night, and lights to be kept burning from sunset to sunrise. The last concrete was poured June 29th, but the road so improved had not been accepted by the roads commission on July 4th, when the plaintiff was injured thereon by reason of the automobile which he was driving colliding with a road machine left by the contractor across the road unlighted, according to the plaintiff's evidence, and without any sign warning the public against the use of the road. From a judgment for the plaintiff the defendant appeals, and by his bill of exceptions presents eleven adverse rulings of the trial court on the evidence.

The first was to the statement by the plaintiff as to his physical condition before and since the accident, that he was "nervous," "a whole lot more nervous." The exception was to the refusal of the court to strike out the answer on the ground that it was an expression of opinion. It was not the expression of an opinion by a layman, but a statement of fact, relevant, and unobjectionable. Sellman v. Wheeler, 95 Md. 751, 54 A. 512.

The second, third, and fourth exceptions were to questions and answers put to, and made by, Dr. John T. Maloney, the plaintiff's attending physician, concerning the probability of the accident as a cause of the physical difference he noted in the plaintiff's condition. The plaintiff had received first aid from another physician, and two days later went to Dr. Maloney, who dressed his wounds and treated him until the wounds were healed. The doctor had more information than the most comprehensive hypothetical question could have furnished, and was qualified to express an opinion as to the cause and probable effects on the plaintiff of the accident complained of (Jones on Evidence [[Civil Cases, 3d Ed.] § 378; Fletcher v. Dixon, 113 Md. 101, 107, 77 A. 326; Ætna Life Ins. Co. v. Bittinger, 159 Md. 262, 266, 150 A. 713. Compare Gordon v. Opalecky, 152 Md. 536, 546, 137 A. 299), no question having been raised as to his qualifications.

The fifth, sixth, and seventh exceptions were to questions about skid marks on the concrete in front of the road machine on the third day after the accident. This would have left the jury to speculate. If there were no skid marks, it would...