Symington v. Graham

Decision Date07 December 1933
Docket Number38.
Citation169 A. 316,165 Md. 441
PartiesSYMINGTON v. GRAHAM.
CourtMaryland Court of Appeals

Appeal from Superior Court of Baltimore City; Albert S. J. Owens Judge.

Action by Coral F. Graham against Thomas R. Symington. From a judgment for plaintiff, defendant appeals.

Reversed and remanded for a new trial.

Argued before BOND, Chief Judge, and PATTISON, URNER, ADKINS DIGGES, PARKE, and SLOAN, JJ.

Walter L. Clark, of Baltimore, for appellant.

Walter C. Mylander and Nathan Patz, both of Baltimore, for appellee.

PARKE Judge.

The plaintiff, Coral F. Graham, wife of Carroll Graham, was injured on February 12, 1932, in a collision between an automobile driven by her husband and one driven by Thomas R Symington, the defendant. The plaintiff recovered a judgment against the defendant for the injury which she sustained, and the defendant has brought this appeal to have reviewed those of the court's rulings that first admitted, and later refused, prayers instructing the jury to ignore the plaintiff's testimony which purported to show that the accident was, almost five months afterwards, the cause of the rupture of the plaintiff's placenta.

The impact of the collision threw the plaintiff from the front seat so that her face struck the windshield, and she was thrust forward with her knees jammed fast underneath the cowl board of the automobile. She was momentarily stunned, and her nose bled freely from the force of the blow of the windshield, but she got out of the automobile, and assisted her husband with the defendant, who was unconscious and badly injured. After the defendant had been carried away to a nearby store, the plaintiff felt nauseated and sick and walked to a neighboring farm house where she stayed until the defendant was removed in an ambulance when the plaintiff went to the store where the doctor examined her to see if there were any bones broken in her nose. After this examination, the plaintiff was put in an automobile and sent home in a nervous condition. Her nose became very much swollen and black to the eyes, and she became sore, stiff, and bruised, but had no pain until the evening of the day following the casualty, when pain, which was more pronounced on the right side of the abdomen, began. She stated that the manner in which her knees had struck the automobile had caused the "jar and the pain through my (her) stomach." She had bruises on both legs which were sore, and remained for four weeks before they were entirely gone. The plaintiff described these abdominal pains as "intense stomach pains" which continued for a period of three or four weeks. She was then able to proceed with her household duties.

While the severe stomach pains ceased at the end of three or four weeks after the injury, she experienced slight similar pains until the end of two months after the accident. After this period, the pains were succeeded by an unusual soreness and drawing sensation in the left side which continued until the day she went to the hospital on July 3. The plaintiff thus described the discomfort: "The burden seemed too low, and just uncomfortable; just a pulling and drawing sensation day and night." It was at this stage of the evidence that the plaintiff was asked to describe her sensation during the period of time that elapsed between the accident and the operation, and the court permitted the question to be asked and refused to strike out the answer on the ground assigned by the defendant that the answer was not responsive. These rulings constitute the first two exceptions.

The choice of the word "sensation," which comprehends both physical feeling and mental condition, apprehension, or realization, afforded the witness so wide a range that it would be difficult to give an answer which was not responsive if it related to any proximate consequence of the tort within the defined period. The reply of the plaintiff was confined to the effect of the physical injury upon her nervous system, as indicated by symptoms of a resultant mental state; and was an element in the damages sustained. Gordon v. Opalecky, 152 Md. 536, 550, 137 A. 299; Green v. T. A. Shoemaker & Co., 111 Md. 69, 80, 81, 73 A. 688, 23 L. R. A. (N. S.) 667; Agricultural & Mech. Ass'n v. Gray, 118 Md. 600, 604, 85 A. 291.

Since the next exception arose on an objection to the inquiry if the plaintiff had, within the same period, experienced any other sensations than those narrated, it has been disposed of by what has just been said, but the fourth exception is to the refusal of the court to strike out the italicized words in the plaintiff's answer stating that her other sensations were: "Just those occasional pains, of course, and this knowledge within myself that I had not been right since that jar through the stomach and abdomen."

The pains and their location in the body and other symptoms, which the witness had described, were in evidence, and to these pains and symptoms the answer referred and the addition of the witness was no more than an awkward repetition in another form of her previous testimony. The expression, "Knowledge within myself that I had not been right through the stomach and abdomen," was simply a statement that the pains and discomforts which the plaintiff had experienced were the interior personal manifestations which informed the plaintiff of the apparent location of her ailment.

The designation of the parts of the body where pain was felt and the time when it began, its nature, and how long it was endured by its subject, are a narration of fact and not an opinion of its cause, so here the testimony given was the plaintiff's knowledge of conditions which had existed from the evening of the day after the accident until the day of the operation.

The conditions which the plaintiff described in the testimony set forth in the first four bills of exceptions were not relevant nor material unless they were the direct and proximate result of the injury inflicted by the defendant. The burden was upon the plaintiff to establish this causal connection. She had been pregnant for about three months when the accident happened, and her physical suffering was concurrent with the period of her pregnancy, which is frequently accompanied by some prenatal pains in the abdominal region which embraces, not only the stomach, but also the uterus. It was, therefore, incumbent on the plaintiff to establish by competent proof that the pains and discomforts to which she had testified were not those of lengthening pregnancy. The point is made by the defendant in his fifth exception that this testimony was attempted to be supplied by the plaintiff, and that she was incompetent to testify.

The plaintiff was asked to explain the meaning of the words in her preceding answer that she "had not been right since the jar through the stomach and abdomen." Her reply was that it was not a question...

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1 cases
  • Superior Transfer Co. v. Halstead
    • United States
    • Maryland Court of Appeals
    • January 15, 1948
    ...knowledge of laymen. To reach such a conclusion the court must surmise and conjecture within the prohibition of the evidence rules. Symington v. Graham, supra. We the medical testimony of the condition of the baby and what caused its death. The death or the dying of the baby caused the pain......

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