Rose v. Spire
| Decision Date | 07 June 1963 |
| Docket Number | No. 306,306 |
| Citation | 231 Md. 546,191 A.2d 567 |
| Parties | Edward Richard ROSE v. Edward D. SPIRE. |
| Court | Maryland Court of Appeals |
James R. White and A. David Gomborov, Baltimore (Matthew Swerdloff, Benjamin R. Goertemiller, Louis J. Glick and Silbert & Gomborov, Baltimore, on the brief), for appellant.
J. William Schneider, Jr., and Eugene A. Edgett, Mr., Baltimore, for appellee.
Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.
The appellant, Edward Richard Rose, plaintiff below, has appealed from a judgment for costs entered upon the verdict of a jury in favor of Edward D. Spire, appellee and defendant below.
His primary contentions here are that the trial court erred in failing to grant the plaintiff's prayer offered at the conclusion of all of the evidence, instructing the jury that there had been offered no legally sufficient evidence of contributory negligence on the part of the plaintiff; and that the lower court erred in instructing the jury on contributory negligence of the plaintiff.
The case arose out of an accident on January 18, 1960, resulting in injuries suffered by appellant while a passenger in an automobile driven by appellee. The parties were classmates at the University of Maryland Dental School and had driven to and from school in a car pool since the beginning of the school year in September 1959. On the date in question, the appellee was the driver and was driving the other members of the car pool home. When they left the school, the appellant was seated on the right rear seat, Paul Rubenstein was seated on his left on the rear seat, Frederick Skolnick and Martin Millison were seated in the front with the driver. A briefcase belonging to appellant was on the floor in the back, between appellant and Rubenstein. This briefcase contained about $200 worth of slides used by appellant in studying for an examination in one of his courses. The automobile driven by appellee was a 1953 Buick two door sedan, which had front seats that folded forward when a person attempted to exit from the back seat.
After dropping off Skolnick and Millison at their destinations, the appellee proceeded to the corner of Garden Drive and Sumpter Avenue, where appellant usually left the car to walk the short distance to his home on Sumpter Avenue. Testimony at the trial indicated that the usual procedure was that the appellee stopped on Garden Drive at the intersection with Sumpter Avenue to discharge appellant and then turned left on Sumpter to continue his trip home, but that occasionally he turned right to take appellant directly to his house.
On this occasion appellee drew to the curb, came to a complete stop at the intersection, as was his custom, and appellant reached to his left to get his briefcase. There was conflict in the testimony as to the appellant's actual position at this instant. It appears that he was either crouching forward or standing with his hand on the back of the right front seat, not sitting on the back seat, or he was in contact with the back seat but leaning forward in preparation for getting up and out of the right door. In either event, appellee, without warning, started the car forward and turned to the right on Sumpter, driving a distance of about twenty feet. He then made a quick stop (also described as 'sudden, unexpected, faster than usual'). This unexpected start and sudden stop caused appellant to fall back on the seat and then to be thrown forward over the front seat. His face struck the radio knob on the dashboard, resulting in a compound fracture of the nose and severe lacerations of his forehead. The testimony indicated the speed of the car prior to the stop was between five to fifteen miles per hour. Mr. Rubenstein, the left rear passenger, was also thrown forward by the sudden stop, striking the back of the seat in front of him and forcing the appellee-driver against the steering wheel, causing Spire's back to be wrenched.
Contributory negligence, like primary negligence, is relative in nature, not absolute, and depends upon the particular circumstances of each case. Boyd, Adm'r v. Simpler, 222 Md. 126, 158 A.2d 666. The relativity of contributory negligence is pointed out in Baltimore Transit Co. v. Sun Cab. Co., 210 Md. 555 565, 124 A.2d 567, 573, where this Court definitively set out the standard of care to be used in measuring contributory negligence.
'The standard of care to be used in measuring contributory negligence is the conduct of an ordinarily prudent person under the same or similar circumstances, and not that of a very cautious person, and even if the doing of what was done turns out to have been an error of judgment, this of itself does not make...
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