Shafer v. State, for Use of Sundergill

• Decision Date: 20 January 1937
• Docket Number: 63.
• Parties: SHAFER v. STATE, FOR USE OF SUNDERGILL. [a1]
• Court: Maryland Court of Appeals

189 A. 273

171 Md. 506

SHAFER v. STATE, FOR USE OF SUNDERGILL. ^[a1]

No. 63.

Court of Appeals of Maryland

January 20, 1937

Appeal from Circuit Court, Montgomery County; Charles W. Woodward Judge.

Action by the State, for the use of Bettie E. Sundergill, widow of Stanley H. Sundergill, against William A. Shafer. From a judgment for plaintiff, defendant appeals.

Reversed without new trial.

URNER J., dissenting.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELL SHEHAN, and JOHNSON, JJ.

W. Albert Menchine, of Baltimore (James J. Lindsay, of Baltimore, and Albert M. Bouic, of Rockville, on the brief), for appellant.

David C. Winebrenner, 3d., of Frederick (Stedman Prescott, of Rockville, and Alfred R. Jones, of Brunswick, on the brief), for appellee.

BOND Chief Judge.

The appellant, owner of a motortruck in collision with an automobile driven by the appellee's husband, Stanley H. Sundergill, appeals from a judgment for damages from the resulting death of the husband, and questions rulings on the legal sufficiency of evidence to prove that negligence of the truck driver caused the death, and on the admissibility of evidence.

On a straight section of the Liberty Pike east of Frederick, shortly after midday on a Saturday, in clear, dry weather, the truck, of one and a half tons' capacity, eight feet wide, was being driven east toward Baltimore, and Sundergill, in a Ford car, was driving west toward Frederick, when the two collided and ran into the bank on the north side of the road. There was only one surviving eyewitness, Ogden, the driver of the truck, and he testified that the two vehicles were approaching, each on its own right side, seeming clear of any danger of colliding, when something seemed to happen to the automobile coming west, the Sundergill car, to make it turn toward the truck. Ogden testified that his steering wheel was wrenched out of his hands by the collision, and he was rendered unconscious, recovering when on his way to a hospital. Evidence offered to support a contrary explanation, that the collision was caused by negligent driving of Ogden, consists entirely of testimony of marks on the road seen by witnesses arriving at various times after the accident. Reliance upon such evidence alone for judicial determination of movements leading to a collision, and for imposition of a liability for damages, is beset with dangers, but there would seem to be no room for doubt that in some cases it might amount to proof of negligence. Schier v. Wehner, 116 Md. 553, 555, 82 A. 976, Ann.Cas.1913C, 1053; Opecello v. Meads, 152 Md. 29, 38, 135 A. 488, 50 A.L.R. 1385; Anderson v. Lynch, 232 Mich. 276, 279, 205 N.W. 134; Amer. Film Co. v. Moye (C.C.A.) 267 F. 419. It would be legally sufficient or insufficient in a particular instance according as it might or might not rise above speculation and conjecture on what had taken place, and so afford the rational basis needed for an adjudication that the defendant's agent was guilty of negligence which produced the accident. Baltimore & O. R. R. Co. v. State, to Use of Savington, 71 Md. 590, 599, 18 A. 969; Benedick v. Potts, 88 Md. 52, 54, 40 A. 1067, 41 L.R.A. 478; Baltimore & O. R. R. Co. v. Black, 107 Md. 642, 661, 69 A. 439, 72 A. 340; Lowenthal v. Backus Motor Co., 140 Md. 33, 37, 116 A. 834; Barker v. Whitter, 166 Md. 33, 39, 170 A. 578.

The fact to be proved is, of course, not merely the existence of negligence. "The mere existence of negligence at the time and place of an injury does not give a right of action. The injury must have been caused by it." United Railways & Electric Co. v. Perkins, 152 Md. 105, 110, 136 A. 50, 52; Needy v. Littlejohn, 137 Iowa, 704, 710, 115 N.W. 483; Morrison v. Clark, 196 Ala. 670, 676, 72 So. 305.

The road at the site of this accident is one of concrete, twenty feet wide, with a four-foot shoulder on each side, giving a roadway of twenty-eight feet. The truck, as stated, was eight feet wide, the car, of course, not so wide. The concrete center portion is laid in sections of forty feet by ten, that is, with expansion joints filled with asphalt crossing the road every forty feet, and a line of joints with asphalt extending along the center of the road. The width of the joint in the center was estimated by one witness at six inches, but by a civil engineer called by the plaintiff at one and a half inches. Evidence of marks of wheels of a truck, or looking like those of a truck, with relation to the line of center joints is relied on as a basis of the charge of a cause of the collision in negligence of the driver of this truck. The problem of legal sufficiency of all the evidence for finding this negligent cause is complicated by the facts that the road is shown to have been a much-traveled highway, and some of the witnesses arrived at long intervals after the accident. One witness described the ordinary traffic as made up mostly of passenger cars. The problem is one of further difficulty by reason of uncertainty of meaning in verbal explanations given by the plaintiff's witnesses, and the impossibility of following on appeal their pointing out of positions on a diagram used at the trial, or illustration by placing toy cars. The court has none of this testimony by pointing out or illustrating by placing toy cars, but is of opinion that nevertheless the appellant should not be deprived of a right of review of the sufficiency of the evidence as presented. Such omissions of explanations in the bill of exceptions of the meaning of the pointing out "here" and "there" on plats and the like, are not infrequent in cases on negligence. The explanations should be given, either by statements of the effect of the pointing out, or by having a record made of the indications of position in some form that will enable an appellant to present them for review. But the view of the court is that in a case in which the trial court does not certify that any facts were brought out in addition to those stated verbally by the witnesses, and especially when the appellee, as here, does not contend that any material evidence is lacking from the bill of exceptions, the court should allow the appellant his right of review unless the court itself should conclude that there is good reason for not deciding upon a review of the record as they find it. The party offering the evidence necessarily controls the method of presenting it, to a large extent, and he should see that it is not presented in such obscurity that the appealing party cannot have it in the record. Surrey Lumber Co. v. Zissett, 150 Md. 494, 499, 133 A. 458; Jackson v. Shawinigan Electro Products Co., 132 Md. 128, 141, 103 A. 453; Kurrle v. Baltimore, 113 Md. 63, 74, 77 A. 373; Cordish v. Bloom, 138 Md. 81, 90, 113 A. 578.

Caution in testing the evidence is required by the fact that some of it was modified when the attention of the witnesses was called to their statements on a previous trial.

All witnesses agree that after the collision the two vehicles were found in the bank on the north side of the road, the Sundergill car badly demolished on its left side, with the body of Sundergill lying with the upper part out in the road and the lower part still in the car. And there was a pool of blood four to six inches across beside the head, two and a half feet from the edge of the concrete, and some broken glass near the car, and scattered vegetables nearby. The greater part of the glass was near the car, but some of it extended a foot to the rear of the car. The truck was from twenty-five to forty feet beyond the car, to the east. And it was wrecked on its left side, with the left front wheel bent in, not straight, the chassis bent, the axle pushed back on the frame, the tire flat, and the transmission broken. And there is agreement that in the bed of the road stretching back from the truck to a point in the region of the car there were scars, smudges, streaks in the road, variously described as marks of braked wheels, or skid marks. There appears to have been no examination of the brakes to determine whether the wheels were held by them. The truck driver was found walking around on the road in a dazed condition.

The first witnesses to reach the scene were two young men who had been working on a baseball field a hundred yards or more away, and who heard the crash of the collision. Called by the defendant, they testified that they saw the conditions just described, that after having failed to get help from two passing cars they stopped a car in which a Captain Peters, of the Hagerstown police department, came along, and the two drivers were taken away to the hospital by Captain Peters. The two young men denied that there were then any tracks in the road other than the smudges or skid marks...