Waltzinger v. Birsner

Decision Date17 January 1957
Docket NumberNo. 75,75
Citation212 Md. 107,128 A.2d 617
PartiesAugust F. WALTZINGER et al. v. Lidie C. BIRSNER et al.
CourtMaryland Court of Appeals

Eugene A. Alexander, III, Baltimore (Walter V. Harrison, Baltimore, on the brief), for appellants.

Paul Berman, Baltimore (Sigmund Levin, Melvin J. Sykes and Theodore B. Berman, Baltimore, on the brief), for appellees.



Here are appeals from judgments entered in favor of the appellees, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle, and against the appellants, August F. Waltzinger and Helen M. Waltzinger, in a trial before the court and a jury, for injuries sustained in an accident caused by the alleged negligence of the appellants in the operation, management, and control of their automobile.

Loma W. Tuttle, 81 years of age, one of the appellees and the mother of one of the appellants, August F. Waltzinger, on July 15, 1954, was living at a nursing home known as College Manor. She had been living for about ten months each year with her daughter in New York and spent about two months each year with the appellants. She came to visit the appellants in March, 1954. After she had been there about six weeks it was necessary for the appellants to take a business trip so they put Mrs. Tuttle in that nursing home. Mr. Waltzinger testified that prior to July 15, 1954, he had been sending his mother, at first $70, then $80, and finally $100 per month for her support. However, she was 'very much in charge of her own affairs.' After the accident she received some money from her husband, from whom she was apparently separated. Mr. Waltzinger also had helped Mrs. Connor 'out with money' at various times before the accident. Testimony was offered that, prior to the accident, Mrs. Tuttle was admitted to Mercy Hospital in October, 1953. On October 25th she seemed confused and on November 7, 1953, from time to time she presented signs of senility. She was a charming old lady, moderately forgetful, on the whole remarkably well preserved, oriented as to time and place, exceedingly well groomed, and cooperative and interested in several things, including boxing.

The appellants owned a 1954 Cadillac sedan and on July 15, 1954, accompanied by the appellees, Lidie C. Birsner and Margaret H. Connor, sister, and mother of the appellant Helen M. Waltzinger and visiting her at the time, went to a restaurant for dinner. After dinner at the restaurant those four drove out to see Mrs. Tuttle at the nursing home and drove into the driveway of the College Manor property. Mrs. Tuttle at that time was on the lawn and Mr. Waltzinger stopped the car on the left side of the driveway, which had a one percent down grade, thirty or forty feet from the office of the nursing home, located to the right of the car. Mrs. Waltzinger had been seated on the right front seat of the car. When Mr. Waltzinger brought his mother to the car, Mrs. Waltzinger got out and helped Mrs. Tuttle into the right front seat and then closed the door and got into the right rear seat. At that time Mr. Waltzinger walked to the office in order to report that he was taking his mother for a ride. As he was returning to the car he saw a Miss Wilson, whom he had taken for rides on previous occasions, looking with 'longing eyes' at the car. He asked her if she would like to take a ride. When she agreed Mr. Waltzinger told her to get into the front seat. Whether Mr. Waltzinger was then in the car when he invited Miss Wilson to get in and then got out is very doubtful. However, there was testimony that he was on the ground to the left of the car when Miss Wilson got in the left front seat. He then went to the office to report that he was also taking Miss Wilson with him. At that time Mrs. Tuttle was seated on the right front seat, Mrs. Wilson on the left front seat behind the steering wheel, Mrs. Waltzinger on the right back seat, Mrs. Connor in the center of the rear seat, and Mrs. Birsner on the left rear seat. Mrs. Waltzinger testified that she believed she said to Miss Wilson: 'Move over and make room for Mr. Waltzinger.' While Mr. Waltzinger was in the building the car started to 'creep' and went slowly down the driveway. Mrs. Waltzinger opened the right back door in order to get in the driver's seat and pull up the brake, as she could not climb over the back seat with the two passengers in front. As she put one foot down, ready to step out, the automobile started 'real fast' and Mrs. Waltzinger was dropped on the ground. Mr. Waltzinger, in the office, heard screams and rushed out. The car then 'flashed' down the slight grade with his wife 'either running behind it or somewhere in the vicinity'. The car struck posts on the left side of the driveway and stopped in a depression against a tree 75 to 100 feet from the place it started. The automobile was 'pretty much wrecked'.

As a result injuries were sustained by the appellees. From judgments entered for them, the appellants appeal. It is contended that there was no legally sufficient evidence showing that the proximate cause of the accident was attributable to any negligence on the part of the appellants, or either of them, and that their demurrer prayer should have been granted. The appellants also specifically objected to the following part of Instruction No. 3 given to the jury, on the ground that there was no legally sufficient evidence that such were the facts:

'The Court instructs the jury that if it finds from the evidence that on July 15, 1954, the plaintiffs as invited guests of the defendants, August F. Waltzinger and Helen M. Waltzinger, were seated in their automobile which was standing on a one per cent down grade upon a driveway of the College Manor Home in Lutherville, Baltimore County; and if the jury further finds that the defendant, August F. Waltzinger, without stopping the engine of the automobile or moving the selector lever from its position for forward movement, permitted another person whom he had invited to ride in the automobile to enter it through said door, and that the defendant, August F. Waltzinger, left the automobile with no one in control of it; and if the jury further finds that, while he was away from the automobile, it was caused, without any act or intervention on the part of the plaintiffs, to move forward upon the driveway with increasing speed and to strike guard posts along the roadway and finally to leave the roadway and collide with a tree, and that the plaintiffs thereby sustained injuries, without any want of ordinary care and prudence on the part of the plaintiffs directly contributing to produce their injuries, then the verdicts of the jury must be for the plaintiffs, Lidie C. Birsner, Margaret H. Connor and Loma W. Tuttle.'

Of course, in deciding whether the demurrer prayer should have been granted, this Court should resolve all conflicts in the evidence in favor of the appellees, and should assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom, which tend to support the appellees' right to recover. Baer Bros., Inc., v. Keller, 208 Md. 556, 558, 119 A.2d 410. We will therefore recite the evidence in a light most favorable to the appellees.

Mrs. Tuttle and Miss Wilson were not able to testify in the case. There was testimony that the automobile had hydromatic transmission, which was controlled by a gear selector lever located directly under the steering wheel. This lever had the positions of neutral, reverse, low, and for forward motion, two drive positions. It was moved by reaching under the wheel, picking the lever up and pulling it into the new position. The accelerator to feed the gas was on the floor and Mr. Waltzinger admitted that it was quite easy in moving over to hit it. The Cadillac owner's manual, offered in evidence, provided in part:

'Your Cadillac Hydra-Matic drive will provide safe parking on hills or steep inclines. Simply turn the ignition key 'Off' when the selector lever is in 'Dr' or 'Lo'. Then raise and move the selector lever to 'R'. As an additional safety measure, apply the hand brake and toe in the front wheels to the curb. * * * To prevent a parked car from rolling on slight grades it is well to form the habit of setting the hand brake which is conveniently located to the left of the steering column. To apply this brake, merely step on the brake pedal and pull the hand brake handle straight back. It locks automatically. A 'tell-tale' light lights up when the hand brake and the ignition are on. To release the brake, rotate the handle left, and it will return to its normal position. When the handle pulls out more than five inches it should be adjusted by your Cadillac Dealer. When parking on hills, turn the wheels toward the curb, place the Hydramatic selector lever in 'R' Reverse, which locks the transmission, and apply the hand brake.'

Mr. Waltzinger testified that he did not know, when he left the passengers in the automobile, whether he had the automobile brake on or in what position the gear selector was. He also admitted that it would be highly unlikely that Miss Wilson could have started the engine just in the act of moving over on the seat. He made the following answers to the following questions. 'Q. Well, isn't this what probably happened that you left your selector gear lever in drive position with the engine running and the brake not set, and, as Mrs. Wilson moved over, she touched the accelerator which caused the car to lurch forward? A. Well, certainly that set of events must have been there because otherwise the car wouldn't have gone flying by me the way it did. Q. So that is probably what happened in your opinion, is that correct, what I suggested in the previous question? A. Probably.' He admitted that, if the automobile was left in gear without the brake on, and someone touched the accelerator, the car would move. He also...

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