Stitzel v. Kurz, 623

CourtCourt of Special Appeals of Maryland
Writing for the CourtTwo appeals from the Circuit Court for Harford County, Harry E. Dyer, Jr.; POWERS
Citation308 A.2d 430,18 Md.App. 525
PartiesCharles M. STITZEL et al. v. John Leonard KURZ et al. John Leonard KURZ et al. v. BALTIMORE COUNTY, Maryland.
Docket NumberNo. 623,623
Decision Date08 August 1973

Page 525

18 Md.App. 525
308 A.2d 430
Charles M. STITZEL et al.
John Leonard KURZ et al.
John Leonard KURZ et al.
No. 623
Court of Special Appeals of Maryland.
Aug. 8, 1973.
Certiorari Denied Sept. 18, Oct. 9, 1973.

[308 A.2d 431]

Page 526

Two appeals from the Circuit Court for Harford County, Harry E. Dyer, Jr., Judge.

Marvin Ellin, Baltimore, with whom was Leonard Passano Baker, Jr., Baltimore, for appellants Charles M. Stitzel, Jr. and others on first appeal.

James H. Cook, Towson, with whom were Cook, Mudd, Murray & Howard, [308 A.2d 432] Towson, on the brief for appellee John Leonard Kurz.

Page 527

James H. Cook, Towson, with whom were Daniel O'C. Tracy, Jr., Cook, Mudd, Murray & Howard, Towson, on the brief for appellant John Leonard Kurz on second appeal.

W. Lee Harrison, Towson, with whom was Cooper C. Graham, Towson, on the brief for appellee Baltimore County, Md.

Argued before MORTON, POWERS and MENCHINE, JJ.

POWERS, Judge.

John M. Stitzel, 15, sustained fatal injuries when the automobile in which he was riding as a passenger at about 11:00 P.M. on 11 September 1970 left the road and hit several stationary objects, including a utility pole. The automobile, driven by John Leonard Kurz, was traveling in an easterly direction on Joppa Road in Baltimore County. Three other teen age boys were also passengers.

The parents of the deceased boy filed a suit against Kurz in the Circuit Court for Baltimore County. In one count the parents claimed damages for the wrongful death of their minor son. In another count the father, as administrator, claimed damages for the estate of the deceased.

With a general issue plea to the declaration Kurz filed a third party claim against Baltimore County, which then pleaded to the third party claim. Thereafter, with leave of court, plaintiffs filed an amended declaration, claiming directly against both Baltimore County and Kurz as defendants. Each defendant filed a general issue plea to the amended declaration.

The case was removed to the Circuit Court for Harford County, where it was tried before Judge Harry E. Dyer and a jury on 27 and 28 March 1972. The plaintiffs' evidence, in addition to that going to damages, consisted of the testimony of Kurz, his three surviving passengers, and the Director of Traffic Engineering for Baltimore County. When the plaintiffs closed Kurz moved for a directed verdict. The judge at first reserved ruling on that motion, but after

Page 528

granting a similar motion by Baltimore County he denied Kurz's motion. The directed verdict for Baltimore County was granted over the opposition of not only the plaintiffs, but of Kurz, who pointed out that the motion was premature, because he had not yet put on testimony in support of his third party claim against Baltimore County.

Plaintiffs then moved for leave to reopen their case to call another witness to supply an element of proof that the court had said was lacking. This motion was denied.

Kurz rested without offering additional evidence, and made another motion for a directed verdict. The court reserved its ruling on that motion. The case was submitted to the jury as to Kurz, and after the jury failed to agree, the court declared a mistrial.

A timely motion by Kurz for a judgment n.o.v. was later granted. The plaintiffs, dissatisfied with the result as to both defendants, appealed. Kurz, satisfied with the status quo but apprehensive of the possibility of facing a new trial alone, filed a cross appeal against Baltimore County.

Questions raised here by the parties may be summarized as follows:

1. Was the evidence legally sufficient to require submission to the jury of the issue of negligence by Kurz?

2. Was the evidence legally sufficient to require submission to the jury of the issue of negligence by Baltimore County?

3. Did the trial court abuse its discretion in denying plaintiffs' motion to reopen their case to present additional testimony?

We shall discuss the facts and the applicable law in the light of the substantial merits of the case, Maryland Rule 1071, [308 A.2d 433] and we shall then fashion a result which will give due recognition to those substantial merits.

On Friday evening, 11 September 1970, Kurz and the Stitzel boy, a neighbor and close friend, walked together to a nearby store where they waited around to meet some other friends. Kurz later walked back home and borrowed his father's car, a 1963 Studebaker in good mechanical

Page 529

condition. Several boys went in the car to High's and Gino's, and then to the Perry Hall Shopping Center. Kurz had a can of beer and a few hamburgers. He was not sure what the others had.

The boys decided to go to the home of Vernon Boblitz, who had been with the group earlier but had left. Kurz was driving his father's car. The passengers were John Stitzel, Paul Bower, Jimmy Maretz, and Ronnie Hauer. Kurz himself did not know where Boblitz lived, nor was he familiar with that part of Joppa Road, having been over it only a very few times before. He was driving east on Joppa Road in a normal fashion, at a moderate rate of speed, 30 miles an hour or slightly more. Nobody in the car was intoxicated, there was no carrying on, and Kurz was looking straight ahead, paying attention to the road and not engaging in any conversation.

Kurz said he passed a road sign indicating a curve to the right. He said he slowed down, and proceeded down the road anticipating a curve. He said he became confused and applied his brakes but when he did so he had no stopping power. The car skidded a few feet in something that sounded like gravel, and then went off the road onto a lawn. The car hit a bump in the lawn and threw Kurz off the controls. He said he was lying over the back seat, and did not have his foot on the brake or his hands on the wheel. The car proceeded to go down and strike the pole.

Asked about his confusion, Kurz said that he couldn't pinpoint it then. He saw Kahl Avenue going off to the right just about where the accident happened, and he was thinking it might have been the road, and didn't know which way to go.

The evidence showed that Joppa Road made a fairly sharp turn to the left at that point. Kurz said he and his father went back to the scene on Sunday morning, some 36 hours after the accident, because he wanted to straighten things out a little more. They looked at the road sign. It indicated, by an arrow, a turn to the right. Kurz said he could not consciously recall seeing the sign on the night of the

Page 530

accident, but said that there would be no reason to remember it, other than seeing it there subconsciously.

The Director of Traffic Engineering for the County testified that on October 5th an investigator sent to the location found that the sign in place was incorrect, showing the curve to be in the direction opposite to the direction of the actual curve. A correct sign was installed on that date. The work orders in the department records included an order on May 1st of 1970 to install a left reverse curve sign at this location. The order was signed by two men from the sign shop crew indicating that they completed the installation. The County had no other records relating to the sign at that location between May and October, 1970, but there were earlier records, indicating that the May installation was a replacement of a damaged sign. The witness said that when the incorrect sign was removed in October, there was no notation on the record that it had been defaced, altered, or moved from another spot. If there had been any evidence of alteration or defacement the sign would have been retained.

There was no significant conflict in the evidence, nor, since all of it was offered by the plaintiffs, would any conflict be expected, unless the testimony of Kurz, an adverse party 1, were impeached. It [308 A.2d 434] was not. It is this evidence then, which we must examine, as did the judge below, in the light of the rule which has been stated so frequently by the Court of Appeals, and by this Court. In Stein v. Overlook Joint Venture, 246 Md. 75, 227 A.2d 226, the Court of Appeals said, at page 81, 227 A.2d at page 230:

"The direction of a verdict in favor of a defendant is not justified if there is any evidence, however slight, legally sufficient to prove negligence. And, in ruling on the motion for a directed verdict, the facts should be considered in the light most favorable to the plaintiff. As the cases point out, the test of legal sufficiency, in a

Page 531

case such as this, is whether the evidence serves to prove a fact or permits an inference of fact that could enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the right of the plaintiff to recover."

And in Buchanan v. Galliher and Harless, 11 Md.App. 83, 272 A.2d 814, at page 87, 272 A.2d at page 817, we expressed the rule as follows:

"When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made, and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury."

Sufficiency of the Evidence as to Kurz

But for the explanation by Kurz that he was confused, the "bare bones" of the testimony showed that he was driving a car on the road in a normal, proper way, when, just before the road curved to the left, he ran off the road to the right.

We restated a long recognized rule when we said in Little v. Duncan, 14 Md.App. 8, at page 16, 284 A.2d 641, at page 645:

"It is axiomatic that the mere happening of an accident does not give rise to a presumption of...

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