State For Use Of Whitaker v. Greaves.

• Decision Date: 15 December 1948
• Docket Number: No. 41.,41.
• Citation: 62 A.2d 630
• Parties: STATE for Use of WHITAKER et al. v. GREAVES.
• Court: Maryland Court of Appeals

62 A.2d 630

STATE for Use of WHITAKER et al.

v.GREAVES.

No. 41.

Court of Appeals of Maryland.

Dec. 15, 1948.

Appeal from Circuit Court, Allegany County; William A. Huster and George Henderson, Judges.

Action by the State, for the use of Edna Whitaker and Phylis Whitaker, against Robert J. Greaves to recover damages for the death of Clarence Whitaker. From a judgment on a verdict for defendant after the filing of an amended declaration omitting Phylis Whitaker as an equitable plaintiff, the State, for the use of Edna Whitaker, appeals.

Reversed and remanded for a now trial.

Edward J. Ryan and William L. Wilson, Jr., both of Cumberland, for appellant.

Leslie J. Clark, of Cumberland, and Evan McC. Crossley, of Hagerstown, for appellee.

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

MARBURY Chief Judge.

This is an appeal from a judgment on verdict in favor of defendant for costs in a case brought in the Circuit Court for Allegany County under the Maryland Lord Campbell's Act, Code Article 67. As originally filed, the suit was for the use of Edna Whitaker and Phylis Whitaker, daughter and granddaughter of Clarence Whitaker, the deceased. Phylis Whitaker is the illegitimate daughter of Edna Whitaker. The defendant demurred to the declaration, the demurrer was sustained, and, thereafter, an amended declaration was filed leaving out Phylis Whitaker as an equitable plaintiff. A plea was filed to this declaration, and the case was tried on these pleadings.

The facts show that the deceased, Clarence Whitaker, was walking on a public highway near the foot of Big Savage Mountain, facing traffic coming down the mountain. The defendant, who was a resident of Columbus, Ohio, was coming from that town to the City of Washington, and drove east over the top of Big Savage Mountain, and in response to a sign there stating that there was a mile and a half down-grade, to descend in second gear when the road was wet, and to use brakes only to save speed, he put his car in second gear, but about half way down the mountain, he took it out of second gear and put it in high. The road was snowy, but had been cindered. He saw the deceased walking along the edge of the road and close to the bottom of the hill. The car started to slide sideways just before he reached Whitaker, and although the appellee tried to straighten it out, it turned completely around and went sideways off the highway and hit a telephone pole. In the course of so doing it hit Mr. Whitaker, who was thrown in a ditch on the side of the road. He was taken to a hospital, but died shortly afterwards. There was one witness who saw the accident. He was in front of a shop about three or four hundred feet from the place where it occurred. He heard a noise, looked up, and said he saw Mr. Whitaker flying through the air about six feet off the ground. He said he thought he was thrown about twenty feet. He said the road was ‘pretty slick’. A man who was passed by the defendant at the top of the mountain, said that the road was slippery, and he had on chains, which the defendant did not. He noticed that the defendant was driving, he thought, a little fast for the condition of the road. He did not see the accident. The highway was 47 feet wide at the place of the accident with an additional four foot shoulder. The telephone pole where the appellee's car came to rest was about four feet to the right, and the ditch in which the deceased was thrown was back of the telephone pole which would be about 15 feet from the edge of the shoulder.

The case was tried by the old method of ruling on prayers without an oral cha ge. We cannot refrain from the comment that we think much of the difficulty in this record would have been avoided had the judges used the more modern method, now generally in use. The defendant's eighth prayer, granted by the court, was a contributory negligence prayer, and his twelfth prayer, also granted, was an unavoidable accident prayer. The appellant assigns five errors. First, the illegitimate granddaughter was not permitted to remain as one of the equitable plaintiffs. Second, there was no sufficient evidence to justify the granting of a contributory negligence prayer. Third, there was no sufficient evidence to justify the granting of an unavoidable accident prayer. Fourth, the unavoidable accident prayer granted was misleading, and fifth, improper action by the appellee's counsel.

The first question is not before us. When the declaration was amended to leave out the granddaughter, she was out of the case. The case with which we are concerned is that which was tried, and which had only the daughter as an equitable plaintiff. There is nothing before us with respect to the right of the granddaughter to sue.

The second question relates to the sufficiency of the evidence to justify the granting of a contributory negligence prayer. Under the statute, Art. 5, Sec. 10, which was Rule 4 of this court, it was formerly provided that no question should arise here as to the insufficiency of evidence to support an instruction actually granted, unless it appeared that such question was distinctly made to and decided by the court below. This clause was an addition to the statute as it originally stood, and it was discussed at length by Chief Judge McSherry in the case of Gunther v. Dranbauer, 86 Md. 1, at pages 9, 10 and 11, 38 A. 33, and has been applied by this court in many cases since. It was specially applied to a contributory negligence prayer in Mullikin v. Mayor & City Council of Baltimore, 131 Md. 363, 102 A. 469. The method of showing that the point was made to and decided by the court below did not have to be by a written exception. Moses v. Allen, 91 Md. 42, at page 43, 46 A. 323; Davidson Chemical Co. v. Andrew Miller Co., 122 Md. 134, at page 139, 89 A. 401; Kahn v. Carl Schoen Silk Corp., 147 Md. 516, 128 A. 359, 44 A.L.R. 285.

Among the General Rules of Practice and Procedure adopted by this Court in 1941, under Rules Applicable to Law Only, is Rule 6(d), Code Supplement 1947, page 2051 dealing with Instructions to the Jury. By this rule it is provided that on appeal a party, in assigning error shall be restricted to the particular portion of the instructions given or the particular omission therefrom and specific grounds of objection distinctly stated at that time and no other errors or assignments of error shall be considered by the Court of Appeals. Rule 11(c) dealing with the Effect on Existing Laws, 1947 Supplement, page 2053, states that Rules 6 and 9 (the latter dealing with trials by the court), supersede Section 10 of Article 5 except the first clause.

We revised some of the Rules Respecting Appeals in 1945. One of the rules changed was Rule 4. As amended and as it now stands under its new number (Rule 9), all but the first clause has been omitted. Code 1947 Supplement 1993. At the same time we adopted Rule 17 which adolished formal exceptions, and in Rule 17 it was stated that it is sufficient if a party at the time the ruling is sought makes known to the court the action which he desires the court to take and his grounds therefor. Code 1947 Supplement 1995. The regrouping and rewording of the rules did not change the previous requirement that where it is proposed to rely on the insufficiency of evidence as a reason for objecting to the granting of a prayer, the party objecting must make known that specific objection to the court below if it is to be considered here. It does not appear from the record in this case that this question was brought to the attention of the court below at the time the prayer was offered and granted. There is, therefore, no compliance with Rule 17 of the Rules Respecting Appeals or Rule 6(d) of the General Rules of Practice and Procedure Applicable to Law Only, and there is nothing before us on this point which we are at liberty to consider.

The third question involves the sufficiency of the evidence to justify the granting of the Twelfth Prayer which permits the jury to consider whether the death of Whitaker was a result of an unavoidable accident. The same rule which we have shown is still applicable to a contributory negligence prayer also applies to an unavoidable accident prayer, but with respect to this prayer, we have in the record an opinion by the judges who heard the case below which was filed with their order, refusing to grant a new trial. At the hearing of the motion for a new trial, the appellants apparently stressed the form of an unavoidable accident prayer, but the court pointed out that the ‘objection to the prayer at the time was that this was not the type of case in which such a prayer was proper, not as to the exact form of it or because there was a lack of explanation of what the law regards as an unavoidable accident.’ We have, therefore, in the record what amounts to a certification of the trial judges, that the plaintiff objected to the prayer at the time it was offered on the ground that it was not proper in this case...