Shirks Motor Exp. v. Oxenham

• Decision Date: 22 June 1954
• Docket Number: No. 177,177
• Citation: 106 A.2d 46,204 Md. 626
• Parties: SHIRKS MOTOR EXPRESS v. OXENHAM.
• Court: Maryland Court of Appeals

Page 626

204 Md. 626

106 A.2d 46

SHIRKS MOTOR EXPRESS v. OXENHAM.

No. 177.

Court of Appeals of Maryland.

June 22, 1954.

Rehearing Denied July 21, 1954.

Charles J. Stinchcomb and John R. Royster, Baltimore (George E. Kieffner and Kieffner, Stinchcomb & Royster, Baltimore, on the brief), for appellant.

David K. Ebersole, Jr., Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

A tractor-trailer driving along a City street, veered to the right and struck three cars parked at the curb, when its driver suddenly became ill either just before or just after the impact. The appellee, the owner of one of the cars, sued the appellant, the owner of the tractor-trailer, and recovered judgment on the verdict of a jury. This appeal challenges the action of the trial court in denying a motion for a directed verdict and a motion for a judgment notwithstanding the verdict, and also, the court's refusal to admit in evidence parts of hospital records and a statement made to the police.

The plaintiff below produced testimony that the tractor-trailer, owned by the defendant, ran into his parked automobile, and rested. The defendant asked for a directed verdict which the court refused, holding that the evidence permitted an inference of negligence on the part of its driver, sufficient to constitute an effective part of the plaintiff's burden of proof. The defendant then accepted the duty of going forward with the evidence and offered testimony by the helper on the truck that as the vehicle was coming down Franklintown Road, he noticed it: '* * * kind of running to the right * * *' and told the driver so. Then, as he looked at the driver, he saw that he was: '* * * hugged over the steering wheel, kind of leaned over or stretched out, he wasn't in no driving position at all.', and that: 'His eyes was kind of green and kind of foaming at the mouth like, and he didn't look right * * *' The witness said that the accident happened immediately afterwards, that then he got out to see the damage and as the truck commenced to drift back, he chocked a rear wheel. He went back to the cab and the driver fell and again commenced foaming at the mouth. The driver was taken to a hospital in an ambulance and died some hours later of the occlusion of a carotid artery. The helper had driven with the driver for several years but had never known him to be sick. The manager of the appellant said that the driver had performed his work regularly, had never shown signs, or complained, of illness, and had passed four physical examinations, required by the Interstate Commerce Commission, since 1946. The appellant then offered hospital records as to the driver which had been produced by the Lutheran Hospital. The court allowed in evidence the words: 'Convulsion while driving--hit a parked car. Continued convulsing.' The court refused, over objection, to admit a statement in the history given in the emergency ward, reading: 'Driving trailer truck--had convulsion and then hit 3 parked cars, little damage to truck', and also ruled inadmissible part of the history chart of the hospital, which read: 'Patient was driving truck in apparent good health today when he suddenly had convulsive seizure. Truck then hit three parked cars. Patient was removed from truck and continued to convulse until brought into AR 40 min. later.'

The appellee, as plaintiff below, had produced as a witness a policeman who had come to investigate the accident. The appellant, as part of its case as defendant, offered in evidence a statement by the helper to this officer, in which he said he was riding on the truck with the driver: '* * * and all of a sudden he started to shake all over and then the trailer went over to the right side and struck a parked car and continued on and struck two more cars before we stopped. Baker was really shaking all over.' The court refused to admit the statement in evidence.

The appellee, to rebut the appellant's efforts to show that the accident was a result of the sudden, unanticipated and incapacitating seizure of the driver, and so, unavoidable or an act of God, produced several witnesses who testified that after the accident, the driver of the truck was sitting up in the seat with both hands at the wheel, as a normal driver would sit. Another witness testified that he came out from the establishment in front of which the accident happened as soon as he heard the crash and that the helper was getting out of the truck as he came out of the building. At that time, this witness said the front wheels of the tracter were up on the appellant's car, and the helper went to the back of the truck, and standing on the right hand side, directed the truck driver to back off the car. When questioned as to how he did this, the witness said that the helper directed the driver: 'By yelling, come back or hold it or turn the wheels.' The witness further testified that the truck was 'correctly' backed off the car which it struck. The witness said further that he saw the driver immediately after that and he was in the truck, sitting upright with his hands on the wheel. The witnesses all agree that shortly after the truck had been backed off and stopped, the driver was lying on the pavement shaking and frothing at the mouth and that the ambulance was then called.

It is not seriously contended here that the trial court was wrong in sending the case to the jury on the testimony for the plaintiff, under the doctrine of res ipsa loquitur. It is urged that the explanation offered by the defendant below was exculpatory to the point of avoiding completely the effect of the doctrine, so that the motion for a directed verdict at the close of the whole case should have been granted. We think the facts produced by the plaintiff were sufficient to permit an inference of negligence on the part of the driver of the tractor-trailer and that the motion was properly denied. As was said in explaining the doctrine, in Lee v. Housing Authority of Baltimore City, Md., 101 A.2d 832, 835: 'An inference of negligence cannot be drawn unless 'the thing which produced the injury was under the management and control of the defendant' and the 'surrounding circumstances tend to show that the injury was the result of some condition or act which ordinarily does not happen if those who have the control or management thereof exercise proper care.' * * * The element of control has an important bearing as negativing the hypothesis of an intervening cause beyond the defendant's control, and also as tending to show affirmatively that the cause was one within the power of the defendant to prevent by the exercise of care.'

Here the tractor-trailer admittedly was under the exclusive control of the defendant, and a vehicle moving down the street ordinarily does not hit a parked car if proper care is exercised. This Court has held that the doctrine may be applicable in the case of a motor vehicle. American Express Co. v. Terry, 126 Md. 254, 261, 94 A. 1026. There a car which had been parked unattended started down grade. There was precluded the possibility that an intervening act had caused the machine to start and the Court held that the evidence was sufficient to permit an inference of negligence: '* * * which the defendant was bound to rebut or overcome.' See also Singer Transfer Co. v. Buck Glass Co., 169 Md. 358, 181 A. 672; and Hickory Transfer Co. v. Nezbed, 202 Md. 253, 96 A.2d 241. A number of courts have held that a moving vehicle which hits a parked vehicle may be within the doctrine. Hardman v. Younkers, 15 Wash.2d 483, 131 P.2d 177, 151 A.L.R. 868; Bryne v. Great Atlantic and Pacific Tea Co., 269 Mass. 130, 168 N.E. 540; Huddy Automobile Law (9th Ed.) Vol. 15-16, p. 281; and Berry Law of Automobiles (7th Ed.) Vol. 3, p. 168.

It may well be that a defendant can avoid the impact of the doctrine of res ipsa loquitur if his evidence goes beyond mere contradiction or the assertion of every precaution taken. This Court has held that if the plaintiff's testimony shows an exclupatory cause, the inference may not be drawn. Hickory Transfer Co. v. Nezbed, supra; Lee v. Housing Authority of Baltimore City, supra; Klan v. Security Motors, 164 Md. 198, 200, 164 A. 235; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 444, 149 A. 4, 565; Strasburger v. Vogel, 103 Md. 85, 63 A. 202. It divided in two cases on the question as to whether the particular circumstances sufficiently excluded the probability of exculpatory cause as revealed by the testimony of both the...