Murphy v. Board of County Com'rs

• Decision Date: 02 December 1971
• Docket Number: No. 4,4
• Parties: Christina L. MURPHY v. BOARD OF COUNTY COMMISSIONERS et al.
• Court: Court of Special Appeals of Maryland

Page 497

13 Md.App. 497

284 A.2d 261

Christina L. MURPHY v. BOARD OF COUNTY COMMISSIONERS et al.

No. 4.

Court of Special Appeals of Maryland.

Dec. 2, 1971.

William E. Brooke, Hyattsville, and Alvin L. Newmyer, Jr., Washington, D. C., for appellant.

Jess J. Smith, Jr., Gambrills, for appellee, Bd. of County Commissioners for Prince George's County with whom was Walter H. Maloney, Jr., on brief.

Albert L. Blackwell, Jr., and Lawrence T. Scott, Rockville, for appellees, Passero and Parreco T/A Central Construction Co. and Washington Suburban Sanitary Comm., with whom were Blackwell, Miller & Markey, Greenbelt, on brief.

Argued before MORTON, ORTH and POWERS, JJ.

POWERS, Judge.

The personal injury damage suit of Christina L. Murphy against the Board of County Commissioners for Prince George's County, the Washington Suburban Sanitary Commission, and Eugene Passero and Edmund Parreco, trading as Central Construction Company, was tried before a jury and Judge Samuel W. H. Meloy in the Circuit Court for Prince George's County on October 14, 15, 16 and 19, 1970.

In the evening of October 19th the jury returned a verdict in favor of the defendants. After a motion for a new trial was filed, heard and denied, judgment was entered in favor of the defendants against the plaintiff for costs. From that judgment Mrs. Murphy appealed.

The Happening of the Accident

Appellant testified that at about 9:30 P. M. on April 27, 1967, she was driving alone to visit a girl friend, and had turned onto Hagan Road in Prince George's County, where she had an accident. She said, of Hagan Road, 'It's a small-it's a narrow road, two cars can, you know, fit on it, but it's a very narrow road. Sort of a country type road with shoulders that vary in size on both sides.'

Asked to describe how the accident happened, she said, 'I was on the right side, my side, but I always stayed towards the middle until I approached another car. * * * It's a curvy road. * * * I just completed a small curve and I was on a straight stretch, small straight stretch, when I noticed the other car with its high beams approaching me. * * * When I saw this other car and his high beams were on, I had first dimmed my high beams, and I pulled slightly to the right and slowed down somewhat. * * * Then as the car passed me I slowed down a little bit more and pulled slightly more to the right, and this is when I heard the-I felt the thump and the noise, a loud noise, and I hit my head. I recall a sensation of a bumping sensation, but-and the car darting forward, but this hazy. * * * I was definitely on the right side, way over. You know, I was off the road. I was on the road, but-I was on my side. * * * I was on the road. I could have been slightly on the shoulder, but no more than that. * * * I could have been a couple inches on the shoulder, and I could have been very well on the shoulder part, but not too much. * * * I turned the car slightly to the right to be sure-his beams were so high-that I wouldn't hit him. I moved the car more to the right and took my foot off the accelerator to slow the car.'

Her next recollection was when she woke up at the hospital. She had sustained severe injuries.

Some time later, upon revisiting the scene, appellant testified, she observed that there was a culvert in front of 4919 Hagan Road. She said it was four feet from the road, and that she knew that she didn't strike that culvert because she was never more than two or three inches at the very most off the road onto the shoulder. She said that the speed limit there was 20 or 25, and her speed was 20 miles an hour; that she took her foot off the accelerator when she saw the approaching high beams, and took it off again when she pulled over to her right; and that she estimated she was going 10 or 12 miles an hour when she felt the big thump and loud noise. She never hit the brake. She said there was nothing the other car did that forced her to move over, except that the lights bothered her, and that he was on his side of the road. She felt the thump or jolt, but did not see anything there. See wasn't looking down at the shoulder.

Officer Albert I. Alexander of the Prince George's County Police testified that on the evening of April 27, 1967, he responded to a call of an accident in front of 4919 Hagan Road, a secondary road, 18 feet wide, two lanes, blacktop, no curbline. He saw a white '66 Ford that had struck a tree. There was a hole on the shoulder in front of 4919 Hagan Road. The hole was three feet ten inches by two feet nine inches by one foot five inches deep. He saw a tire track going on the shoulder of the road toward the hole. Fifty-four feet beyond the hole was a pole, on which the officer found white paint, and at the base of which he found the right rear taillight frame from the Murphy car. The car was against a tree sixty-one feet beyond the pole. He saw tire marks leading from the hole to the pole. Photographs, one or more of which showed the hole, were received in evidence.

The officer said that the weather was cloudy but dry, and there was no illumination. He indicated on a diagram that the appellant's vehicle left the macadam surface at the first driveway on the right that leads to the Mattingly property. There wsa a pipe under the driveway and a small drainage area along the road there. The tire tracks he observed were from the drop-off at the corner of the driveway. Red flares were put up at the site by the police.

There was other evidence that Central Construction Company had a job installing a sewer line on Hagan Road for the Washington Suburban Sanitary Commission. There was also evidence that a utility permit inspector for the Prince George's County Department of Public Works, riding on Hagan Road on the afternoon of April 26th, had 'noticed a slight depression on the shoulder of the road'. He noted it in his diary, and notified his dispatcher. He said it did not necessitate a warning device or barricade at that time. The depression he saw was not located any more specifically than the 4900 block of Hagan Road.

Questions Involved in This Appeal

Appellant's brief poses the questions presented by this appeal to be whether the trial court erred:

I in its rulings on the evidence,

II in its instructions,

III and in its failure to grant a new trial when matters were discovered subsequent to trial, which had a crucial bearing on the case.

I Rulings of the Court on Evidence

A. Much of appellant's argument on this aspect of the case goes to the weight to be given to some of the testimony, and to the burden of proof upon the appellees on the question of whether appellant was contributorily negligent. The weight which any evidence should be given, as well as the credibility to be accorded to the testimony of any witness, is for the jury. Aravanis v. Eisenberg, 237 Md. 242, 262, 206 A.2d 148, Kowalewski v. Carter, 11 Md.App. 182, 192, 273 A.2d 212. Likewise, it is for the jury, and solely for it, guided by proper instructions of the court, to conclude whether any party has carried whatever burden he may have to prove any fact at issue.

No doubt to emphasize the prejudicial effect she contends flowed from erroneous rulings by the court, appellant argues that counsel for the appellees made misleading and highly prejudicial references and arguments to matters 'dignified by rulings' of the court. We shall consider separately each ruling alleged to have been erroneous. As to the general argument, we can say only that we have reviewed the entire transcript of testimony, proceedings and arguments, consisting of over 500 pages, and we find no request that the court admonish the jury to disregard any statement of counsel, and no motion for mistrial. Brinand v. Denzik, 226 Md. 287, 173 A.2d 203, Baltimore & O. R. R. v. Plews, 262 Md. 442, 464, 278 A.2d 287, Ferrt v. Cicero, 12 Md.App. 502, 508-509, 280 A.2d 37.

The court told the jury, 'You are to consider only the evidence in the case. * * * The statements of counsel, opening statements, closing arguments, are not evidence, and should not be considered as evidence * * *.'

This general argument of appellant presents nothing to us for decision.

B. Mrs. Grace M. Hare was called by appellant as a witness. She said that she lived across the street from where the accident happened. Prior to that time, she had observed the road. She said, 'There were holes on the side of the road. * * * there was one that was quite big and came out a little bit further to the road.' When asked how long that hole had been there she said, 'Well, truthfully I wouldn't-couldn't say. It was wide.' Then followed a long series of questions by appellant's counsel designed to have the witness state a length of time that the hole was there. Each question was objected to, and each objection was sustained. Finally the court observed, 'The lady has testified that she doesn't know long the hole was there. Under the circumstances I think further exploration would be redundant.' She never associated the hole that was 'quite big' with the accident.

Appellant argues that the court erred in these 'restricted rulings'. We see no error.

C. Appellant complains that Lawrence Pauley, called by her, was not permitted to testify as an expert. He said he had been in the sewer and water construction business for 25 years, the estimating and the office work, mainly. He had had his own crews doing this work, but had not supervised them on the job itself. He said he was familiar with the type of conditions that occur in this work. Appellant submitted his qualifications 'as an expert'. There was objection, because of no showing of 'what he is supposed to be an expert as'. The court sustained the objection. No further qualifications were proffered, nor was there any proffer of what the witness would say if permitted to testify.

On the question of whether a witness should be permitted to testify as an expert, the Court of Appeals, in Spence v. Wiles, 255 Md....