Sieland v. Gallo

• Decision Date: 12 January 1950
• Docket Number: 68.
• Parties: SIELAND v. GALLO et al. GRIFFIN v. GALLO (two cases).
• Court: Maryland Court of Appeals

71 A.2d 45

194 Md. 282

SIELAND v. GALLO et al.

GRIFFIN v. GALLO (two cases).

No. 68.

Court of Appeals of Maryland.

January 12, 1950

Isidor Roman and Edgar Paul Boyko, Baltimore, for appellants.

Palmer R Nickerson, Baltimore (Paul F. Due, Due, Nickerson & Whiteford, Baltimore, on the brief), for David T Gallo.

Roszel C Thomsen, Baltimore (Clark, Thomsen & Smith and Robert H Engle, Baltimore, on the brief), for Douglas D. Clark.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS, Judge.

This is an appeal by Oscar M. Sieland, Charles G. Griffin and Leroy M. Griffin plaintiffs below, appellants here, from judgments for costs in favor of the defendants, David T. Gallo and Douglas D. Clark, appellees here. The three cases were tried jointly before the trial judge and a jury.

The facts for the purpose of this opinion substantially follow. The appellant Leroy M. Griffin on August 9, 1948, in the afternoon, was driving his automobile in a rainstorm on the Philadelphia Road toward Baltimore, at a point about two miles south of White Marsh in Baltimore County. In his car were the other two appellants, Oscar M. Sieland and Charles M. Griffin. The north bound lane of this dual highway was closed for repairs and both north and south bound traffic were using the south bound lane. David T. Gallo, driving in the same direction and to the rear of the Griffin car, when appying his brakes slid his automobile in the mud and struck the rear of the Griffin car. The automobile of Douglas D. Clark the other appellee, then ran into the rear of Gallo's car and pushed Gallo's car into the Griffin car a second time. Suit was entered for personal injuries and for damages to Leroy Griffin's automobile.

The cases come to this Court on two specific exceptions to the charge given the jury by the trial judge. The appellants also noted an exception to 'the charge as a whole.' Such an exception cannot be reviewed by this Court. Under the provisions of Rule 6(c) and (d) of the General Rules of Practice and Procedure, Part Three, Section III, the exception must state distinctly the portion of the charge to which the objection is made and the specific grounds of the objection. Fisher v. Baltimore Transit Co., 184 Md. 399 and page 402, 41 A.2d 297; Coca-Cola Bottling Works v. Catron, 186 Md. 156, 163, 46 A.2d 303; Barone v. Winebrenner, 189 Md. 142, 55 A.2d 505, 506; Goldman v. Johnson Motor Lines, Md., 63 A.2d 622, 625. On appeal we can only consider the particular portions of the instructions objected to, before the jury retired, when the specific grounds of such objection are distinctly stated.

The first specific exception is to the following part of the judge's charge. 'The defendant David Gallo claims that he was not negligent. He claims that he received no ample warning permitting him to stop his automobile in time to keep it from crushing into Leroy Griffin's car. He feels that Mr Leroy Griffin contributed to the happening of the accident of which he complains and that brings up the question of contributory negligence.' The trial judge then continued to instruct the jury as to the law on contributory negligence. The appellants contend that no such claim was made by Gallo and, further, that there was no evidence in the case of contributory negligence and that there should not have been any instruction to the jury on contributory negligence. Of course, in the absence of any evidence tending to show contributory negligence it is error to instruction the jury on that question. Garozynski v. Daniel, Md., 57 A.2d 339, 341; State v. Penn. R. R., Md., 59 A.2d 190, 193; Goldman v. Johnson Motor Lines, Md., 63 A.2d 622, 626, supra. We do not deem it necessary to review the testimony to determine whether there was any evidence of contributory negligence justifying such an instruction. In the case of the other appellants, the judge distinctly instructed the jury: 'There is no evidence of contributory negligence chargeable to Mr. Charles Griffin nor to Mr. Sieland.' Assuming that the trial judge was in error in instructing the jury as to the facts showing contributory negligence on the part of appellant Leroy Griffin, such error appears to be...