Melville v. State of Maryland

• Citation: 155 F.2d 440
• Decision Date: 13 May 1946
• Docket Number: No. 5476.,5476.
• Parties: MELVILLE v. STATE OF MARYLAND to Use of MORRIS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

155 F.2d 440 (1946)

MELVILLE v. STATE OF MARYLAND to Use of MORRIS et al.

No. 5476.

Circuit Court of Appeals, Fourth Circuit.

May 13, 1946.

Frederick W. C. Webb, of Salisbury, Md. (Woodcock, Webb, Bounds & Travers, of Salisbury, Md., on the brief), for appellant.

Frank C. Wachter and Hilary W. Gans, both of Baltimore, Md. (Thomas F. Johnson, of Baltimore, Md., on the brief), for appellees.

Before GRONER, Chief Justice of the United States Court of Appeals for the District of Columbia, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case arose out of a tragic collision between a motor truck owned by James Melville and a tractor-trailer truck owned by the Acme Poultry Corporation. On each of these trucks were two men and all four of them were killed. There were no eye-witnesses to the accident. A civil action against Melville, removed from a state court to the United States District Court for the District of Maryland and tried with a jury, brought on account of the death of John Morris (an occupant of the Acme truck), resulted in a verdict and judgment against Melville for $18,000, from which he has duly appealed.

The collision occurred shortly after midnight January 26, 1945, between the towns of Snow Hill and Berlin, in Maryland, on State Highway Route 113. This road, at the scene of the accident, consists of 16 feet of macadam, with a line in the center, and dirt shoulders about 4 feet wide on both sides of the macadam. Here the road curves to the west, and the collision occurred within, but near the northern end of, the curve. The center, or crown of the road, was somewhat higher than the sides. The southbound Melville truck was a single, ten-wheel vehicle. The northbound Acme truck was a combination tractor-trailer, with a combined length of about 34 feet, a width of 8 feet, a height of about 10 feet and a weight of about 6 tons.

We first consider what seems to be the most important contention of appellant, the one most seriously urged in the brief and oral argument. Appellant insists that here, in the absence of any eye-witnesses to the accident, there was not evidence sufficient to submit the question of appellant's negligence to the jury so that the trial judge should have given a peremptory instruction to the jury to find in favor of the appellant. We cannot agree with this contention, though the question it presents is a close one.

It is conceded that we must here follow the law of Maryland. Great stress is laid by appellant on Maryland cases which seem to minimize the probative effect of the position of the trucks after the collision. Shafer v. State, for Use of Sundergill, 171 Md. 506, 189 A. 273; State, for Use of Balderston v. Hopkins, 173 Md. 321, 196 A. 91; Gloyd v. Wills, 180 Md. 161, 23 A.2d 665; Finney v. Frevel, 183 Md. 355, 37 A.2d 923. See, also, Doggett v. Peek, 5 Cir., 116 F.2d 273. We think appellant over-emphasizes the effect of these cases in his favor. In none of these cases were the facts quite similar to the facts in the instant case, where the complete absence of skid-marks, and all the surrounding circumstances tend to show pretty clearly that there was little or no movement of the trucks after the collision.

The trucks after the collision formed a rough V, with the point of the V toward the West. The left rear-wheel of the Melville truck was at (or just off) the eastern edge of macadam, the front was facing Southwest, with a small part of the truck in the western lane of the road and the much larger portion of the truck in the eastern lane. The tractor of the Acme truck was almost entirely in the western lane facing a few degrees West of North, while the trailer was for the most part in the eastern lane, facing slightly East of North. The damage to the Melville truck was right on its front; the damage to the Acme tractor-trailer was largely on its right side near the front of the tractor. Clearly, then, the impact and force of the collision must have been from East to West. This is further indicated by evidence as to the location of the debris within the V.

In the light of all the evidence, particularly that as to the position of the trucks plus the evidence of Davis (discussed later in this opinion) as to the course and speed of the Melville truck a few seconds before the collision, the most plausible and probable theory of the accident (which formed the basis of the jury's verdict) would be this: the southbound Melville truck was largely or wholly in the eastern (improper as to it) lane, while the northbound Acme truck was also in the eastern (proper as to it) lane. The Acme driver, seeing an inevitable collision if he continued his course, and faced with the alternative of driving off the road to the right or turning to the West, which was his left, tried the latter procedure. The Melville driver also tried to turn to the West, which was his right, so that when the right front of the Acme tractor was just beyond the left front of the Melville truck, the collision occurred.

We must, therefore, conclude that here there was sufficient evidence to go to the jury on the negligence of appellant and on whether that negligence was the proximate cause of the collision. The jury's verdict is, therefore, binding on us. See Beall v. Ward, 158 Md. 646, 149 A. 543. As to driving on the wrong side of the road as evidence of negligence, see Kaline v. Davidson, 146 Md. 220, 126 A. 68; Coplan v. Warner, 158 Md. 463, 149 A. 1; Fisher v. Finan, 163 Md. 418, 163 A. 828. And see Christie v. Callahan, 75 U.S.App.D.C. 133, 124 F.2d 825, 839, 840, where Justice Rutledge speaking for the Court of Appeals of the District of Columbia, said: "Generally speaking, direct and positive testimony to specific acts of negligence is not required to establish it. Circumstantial evidence is sufficient, either alone or in combination with direct evidence. Circumstantial evidence may contradict and overcome direct and positive testimony. The limitation on its use is that the inferences drawn must be reasonable. But there is no requirement that the circumstances, to justify the inferences sought, negative every other positive or possible conclusion. The law is not so exacting that it requires proof of negligence or causation by testimony so clear that it excludes every other speculative theory."

Appellant also complains of the instruction given by the District Judge that any negligence of Ewell, who was driving the Acme truck at the time of the accident, was not to be imputed to Morris under the doctrine of joint enterprise. The evidence clearly shows that, at the time of the collision, Ewell was driving the Acme truck. Ewell was at the wheel when this truck left the Maryland Trucking Center on its fatal journey, and Morris was then seen, taking off his shoes, beside Ewell. After the accident, Ewell's body was lying on the left running board, with his feet stuck between the clutch and brake pedals. The body of Morris was found "lying on top of what remained of the dash." The evidence showed that Morris and Ewell had equal authority to drive the Acme truck and that the one who was not driving was permitted to sleep in a bunk located above and behind the driver's seat. No evidence indicated that the one of the two who was not driving had any measure of control over, or responsibility for, the acts of the one who was driving.

We find no ground for reversal in the giving of this instruction. The record is barren of any evidence tending to show any negligence on the part of Ewell contributing to the accident. Further, we think there was not sufficient evidence to take to the jury the question of joint enterprise here with the attendant theory of imputation of negligence.

Counsel for appellant gave little emphasis to this point, admitting that "the direct point here involved has never been passed on in Maryland". Certainly he can derive little comfort from the cited passage in 4 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2494, page 306. The same is true of the only case stressed in his brief, Kirkland v. Atchison, Topeka & Sante...