Montgomery Bus Lines, Inc. v. Diehl

• Citation: 148 A. 453
• Decision Date: 10 January 1930
• Docket Number: No. 59.,59.
• Parties: MONTGOMERY BUS LINES, Inc. v. DIEHL.
• Court: Court of Appeals of Maryland

148 A. 453

MONTGOMERY BUS LINES, Inc.

v. DIEHL.^*

No. 59.

Court of Appeals of Maryland.

Jan. 10, 1930.

Appeal from Circuit Court, Montgomery County; Robert Peter, Judge.

Action by Loretta Diehl against the Montgomery Bus Lines, Incorporated. From the judgment, defendant appeals. Affirmed.

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

Robert Peter, Jr., of Rockville, and S. R. Bowen, of Washington, D. C. (H. C. Smith, of Rockville, on the brief), for appellant.

Saul Praeger, of Cumberland (Albert M. Bouic, of Rockville, on the brief), for appellee.

BOND, C. J. In a suit arising out of a rear-end collision of motor vehicles, the defendant, owner of the rear vehicle, appeals from a judgment for damages for personal injuries caused to the plaintiff, a passenger in the forward car.

The plaintiff, Miss Diehl, now appellee, was riding by day as a guest in an automobile driven by Gilbert S. Haus, along a highway in Montgomery county, when the accident occurred. They came to a point where an automobile in charge of two ladies was off the hard surface of the road, unable to move forward because the surface yielded, so that the wheels merely spun around, and Haus drew aside to his right, leaving only his left rear wheel on the hard surface, intending to tow the ladies out. He testified, and the testimony of Miss Diehl is to the same effect, that he first gave warning to any one in his rear, by holding out his hand, then drew aside, put on his emergency brakes, turned off his ignition, told his companion what he intended to do, rose up, reached over in the back of his front seat to get a tow rope, which he thought he had there, and, having failed to find it, was taking his keys from his pocket, when his automobile was struck in the rear by the defendant's motorbus, with the result that Miss Diehl was injured.

The driver of the bus, Stacey Belt, on the other hand, testified that, as he came along about 30 feet behind the automobile of Haus the latter stopped without warning, suddenly and so near that it could not be avoided by turning and the brakes could not stop the bus quickly enough. There was evidence, too, of cars running between the automobile and the bus, and of their passing Haus after he stopped, but the testimony on this is not uniform.

Exceptions to rulings on prayers have been pressed first, especially one to the court's rejection of the defendant's prayer that a verdict be directed in its favor for want of legally sufficient evidence of negligence on its part, causing the accident. But this court agrees in that action, because, irrespective of all other evidence, there was legally sufficient evidence to support a jury's finding of negligence on the defendant's part in the testimony, already recited, that between the stopping of the Haus automobile and the collision a sufficient time elapsed for Haus to bring his car to a stop, with brakes on and ignition shut off, and to arise and look behind the seat for a rope. Accepting that testimony as true, a jury might, from those facts alone, we think, reasonably conclude that the bus driver, if driving with ordinary care, would in that period of time have seen the Haus automobile stopping, and would have driven around it. That evidence was contradicted, but the court could not, of course, direct the jury's choice in the resulting conflict.

The second ruling argued was one which excluded from consideration by the jury a hypothesis of contributory negligence on the plaintiff's own part. A prayer on her behalf, her second, asked an instruction that contributory negligence of the driver of the automobile in which she was a guest could not be imputed to her and defeat her recovery. And a sixth prayer of the defendant asked an instruction on a possible finding of contributory negligence on the plaintiff's part in failing to give attention to the danger into which she was being driven, and to intervene in the driver's actions with suggestions and protests, and otherwise to exercise care to avoid the accident. Both of these prayers are referred to as based on a hypothesis of contributory negligence on the part of the plaintiff herself, but her prayer is concerned only with an imputation to her of the negligence of the driver, Haus, and the rejection of the defendant's sixth prayer is the only action which raises the question argued. Chiswell v. Nichols, 137 Md. 291, 303, 112 A. 363.

The contention that the jury should have been permitted to find the plaintiff negligent, and should have been instructed as to the effect of such negligence, is conditioned upon a finding of negligence in the driving of the car in which she was riding, and the negligence which the jury might have found in the driving would be in Haus' failing to give warning of the intention to stop, by holding out his hand, and in his coming to a stop too suddenly to permit the bus following to avoid collision. If there was any reasonable possibility of a finding of negligence on the plaintiff's part in such negligence of Haus, the question should have been referred to the jury as the defendant prayed. Washington B. & A. R. R. Co. v. State, use of Hall, 136 Md. 103, 109, 111 A. 164; Chiswell v. Nichols, supra; Chesapeake & P. Telephone Co. v. Merriken, 147 Md. 572, 578, 128 A. 277, 41 A. L. R. 763; and cases collected in notes in 18 A. L. R. 309, 352, 22 A. L. R. 1294, and 41 A. L. R. 767. But negligence by a passenger, not herself driving, which would defeat her recovery, must be, in effect, a uniting with the driver in incurring the resulting danger, and it involves an opportunity at least to acquiesce in the negligent action. And we do not see how a jury could find such an opportunity in the single, quick, momentary actions of failing to hold out the hand and stopping too suddenly. On the contrary, interference by a passenger in such details of operation would seem more likely to constitute negligence. Each such question is to be decided upon the facts of the case in which it is raised, and we do not lay down a rule for determining what may constitute contributory negligence on a passenger's part on facts testified to in another case; but on the testimony in this case we agree in the trial court's ruling on the defendant's sixth prayer. United Railways Co. v. Biedler, 98 Md. 564, 574, 56 A. 813.

Three prayers offered by the defendant, its thirteenth, fourteenth, and fifteenth, and a special exception taken by it to a third prayer of the plaintiff, presented questions of the extent of injuries for which damages might be awarded. According to the testimony, the plaintiff sustained a blow or blows about the face, principally about one eye. There were cuts, and a small scar was at the time of trial still discernible near the eye. There was no bone fracture. She lost ten days' time from her employment, or in money, about $50. Her evidence is, however, that she has suffered since the accident from nervousness, headaches, loss of weight, and anaemia, and physicians testifying in her behalf said that, as they could not explain the continuance of the headaches from what they found, they inferred that there might be an injury to the brain or its covering. One physician, Dr. Enfield, testified that, in view of the lack of improvement in the condition between the time of the accident and that of the trial (seven months), he felt that the headaches would be permanent. Other physicians, who testified for her, said that in their opinion rest was a necessary treatment for the case, a rest from work of from two to six months, and that if she did not get it her condition might be permanent. These physicians added that, even with the proper amount of rest, it was not certain that the plaintiff would be entirely cured; that the headaches might last a very long time, and perhaps be permanent. These other physicians saw only a possibility of permanency.

This being the situation on the evidence, the defendant offered a prayer, its thirteenth, for an instruction that, if the jury should find that the rest treatment would bring about or help the complete recovery of the plaintiff, and that her present condition or any part of it was due to a refusal to submit to the treatment, the jury could not...