Nizer v. Phelps

• Court: Maryland Supreme Court
• Writing for the Court: Before HAMMOND; BARNES; In regard to the first proposition
• Citation: Nizer v. Phelps, 252 Md. 185, 249 A.2d 112 (Md. 1969)
• Decision Date: 21 January 1969
• Docket Number: No. 387,387
• Parties: Raymond G. NIZER et al. v. Francis H. PHELPS, Jr., et al., Committee for Marion F. Phelps, Incompetent.

Page 185

252 Md. 185

249 A.2d 112

Raymond G. NIZER et al. v. Francis H. PHELPS, Jr., et al., Committee for Marion F Phelps, Incompetent.

No. 387.

Court of Appeals of Maryland.

Jan. 21, 1969.

Benjamin C. Howard, Baltimore (Robert L. Karwacki, Baltimore, and George P. Bowie, St. Louis, Mo., on the brief), for appellants.

Everett L. Buckmaster, Baltimore (George W. White, Jr., Samuel D. Hill and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.

BARNES, Judge.

Raymond G. Nizer, a bus operator, and his employer, The Baltimore Transit Company (Nizer and Baltimore Transit), defendants below, appealed from a judgment for $115,000 in favor of the appellees, Francis H. Phelps, Jr. and Charles E. Phelps, Committee for Marion F. Phelps, Incompetent (Mrs. Phelps), plaintiffs below, against the defendants upon the verdict of a jury in the Circuit Court for Baltimore County (Proctor, J.) for damages for serious injuries sustained by Mrs. Phelps when she was struck by a shuttle bus of Baltimore Transit at Howard and Preston Streets, Baltimore, Maryland on June 16, 1966.

On the day of the accident, Mrs. Phelps, then 82 years of age, left her home in Baltimore at 135 West Lanvale Street to go downtown to Hutzler's Department Store located on the west side of Howard Street at Saratoga Street. It was her habit to walk down Howard Street practically every day to have lunch at Hutzler's.

Howard Street runs north and south at Preston. It is a two-way street with a painted double line in the center. It is 54 feet wide with three lanes each for northbound and southbound traffic, each lane separated by broken lines. Preston Street runs east and west. It is a one-way street going west with a broken painted line in the center. Preston Street, at its intersection with the west side of Howard Street, is 60 feet wide from curb to curb through the center of the crosswalk and then narrows to a distance of approximately 39 feet. Preston Street is crowned in the center and slopes from the center to the north and south side of the street, respectively. There is a slight downgrade to the east. The marked pedestrians' crosswalk of Preston Street from the northwest corner to the southwest corner of the intersection is 14 feet wide at the north and somewhat wider at the south end.

On the northwest corner of Howard and Preston Streets is the Fifth Regiment Armory, the steps of which protrude onto the sidewalk in such a way that a person walking south on the west sidewalk of Howard Street would walk right into the crosswalk.

As Mrs. Phelps was walking across Preston Street on June 16, 1966 at about 12:05 p. m. she was struck and seriously injured by a Baltimore Transit shuttle bus operated by Nizer. Traffic at the crossing was not controlled by either a traffic control device or by a traffic officer. The bus was northbound on Howard Street and was making a left turn across southbound traffic to go west on Preston Street. Traffic in the three southbound lanes on Howard Street was heavy and most of the traffic in the westernmost southbound lane was turning right to go west on Preston Street. The weather was clear and the streets were dry.

Mrs. Phelps, at the time of trial, was confined to a nursing home. She was totally disabled and mentally incompetent as a direct result of her injuries and will require nursing home care for the rest of her life. Because of her mental condition she was not able to testify. Police Officer Robert J. Rogers, however, reached the scene of the accident shortly after it occurred and before the ambulance arrived. Officer Rogers was qualified by training and experience in the investigation of accidents, having been assigned to the Accident Investigation Division of the Baltimore City Police Department for 14 years and having handled between 25 and 50 accidents in traffic court per month. During his 14 years with the Accident Investigation Division he had handled between 5000 and 8000 accident cases. He had attended the police academy, was trained in the investigation of accidents by his superior officers, at the time of trial he was himself training new men, land had read and studied various pamphlets and books on the subject of investigation of accidents. He had testified in both the Federal and State courts concerning points of impact and how they are established. After having been cross-examined in regard to his qualifications to give expert testimony on the point of impact, his testimony as an expert was permitted by the trial court.

Nizer testified that the bus had not been moved when Officer Rogers arrived at the scene of the accident. Officer Rogers immediately began his investigation. He ascertained and marked the location of the physical evidence with yellow chalk to preserve its location, took photographs and talked to Nizer. The chalk marks do not appear on the photographs but Officer Rogers testified that this may have been because yellow chalk marks on an asphalt surface often do not show up in black and white photographs. Officer Rogers' testimony in regard to the physical evidence at the scene of the accident was recorded on his diagram (plaintiffs' Exhibit No. 5), and was shown on a plat (plaintiffs' Exhibit No. 4) and on two photographs (plaintiffs' Exhibits Nos. 1 and 2).

Officer Rogers' testimony and the exhibits mentioned indicate that immediately after the accident, the bus was south of the center of Preston Street. Its front was in the crosswalk about in the center of Preston Street headed on an angle in a northwesterly direction. Its position was such as to indicate that it 'cut the corner' in making the left turn. Both front wheels were in the marked pedestrians' walkway, the left front wheel being close to the western line of the crosswalk, the right front wheel farther east from that western line. There was flesh in the blood trail that was on the street and there was flesh and blood on the left front wheel of the bus. Indeed, plaintiffs' Exhibit No. 1, the photograph showing the front of the bus, the location of its front wheels and showing the blood trail, indicates that the left front wheel was in part of the trail of blood. The blood was thick and heavy and, as indicated, had flesh in it. The blood trail was 11 feet overall. It began nine feet from the easternmost line of the crosswalk, and extended to the larger blood spot where Mrs. Phelps was lying.

Mrs. Phelps was lying in front of the bus just south of the center of Preston Street. Her head was two feet west of the west line of the crosswalk and her feet were six feet west of it in a blood spot. Her left leg was broken open, the flesh was torn loose and there was blood at the back of her head. Nizer testified that her leg was near the left front wheel of the bus and suggested that this wheel could have pinched her leg.

Nizer was called as an adverse witness by the plaintiffs. He was the only eyewitness to the accident that testified at the trial of the case. As will be later observed, his testimony at the trial was in conflict with his deposition testimony and with certain statements which Officer Rogers testified Nizer had made to him at the scene of the accident.

At the trial, Nizer testified that he was northbound on Howard Street and was making a left turn to go west on Preston Street. When he saw Mrs. Phelps standing on the north sidewalk of Preston Street about ten feet west of the west line of the marked crosswalk, he glanced to his left and then to his right and saw her come from between a car or cab that was southbound on Howard Street making a right turn into Preston Street. Nizer said he was watching the automobiles as he was making his turn; that he saw Mrs. Phelps standing on the sidewalk and did not see her again until she was almost in the path of his bus. When he saw her the second time, she was almost in the center of Preston Street about two or three feet in front of him. He said that he was going approximately five miles an hour and that the first time he saw Mrs. Phelps with her hand up, was when he hit her. He stated that he 'hit the brakes' when Mrs. Phelps came in front of him; that she was three to five feet west of the crosswalk when he struck her; and that he went a few feet farther before stopping, but that he could not say whether or not he had dragged Mrs. Phelps.

Nizer admitted at the trial that he had stated under oath in his deposition three times that Mrs. Phelps was in the crosswalk when he saw her. He also admitted in his deposition that he could not swear that he ever saw Mrs. Phelps before he saw her in front of the bus with her hand up. When he was questioned in regard to the conflict in his testimony at the trial and his testimony when his deposition was taken, Nizer (referring to his testimony on his deposition) stated that it was not exactly the truth and 'I guess it is false as I saw her standing on the sidewalk before I made the turn.'

Nizer admitted that he never told Officer Rogers that he saw Mrs. Phelps standing on the north side of Preston Street nor did he say anything in his Answers to Interrogatories in regard to seeing her on the north side of Preston Street ten feet west of the crosswalk. He further admitted that he had given Baltimore Transit three statements in regard to the accident and that in the first two statements he had said nothing about seeing Mrs. Phelps on the sidewalk. It was not until approximately one month prior to trial, that Nizer decided that he had seen Mrs. Phelps standing on the north sidewalk of Preston Street and gave Baltimore Transit a statement to that effect.

The medical testimony in regard to Mrs. Phelps' physical injuries indicated that she had suffered a fracture of the left maxilla (the cheek bone), an injury to her left eye, a fracture to her right ankle and a compound fracture of the terminal phalanges of the second and third...