Wood v. Johnson

• Decision Date: 04 May 1966
• Docket Number: No. 191,191
• Citation: 242 Md. 446,219 A.2d 231
• Parties: William M. WOOD v. Gilbert JOHNSON et al.
• Court: Maryland Court of Appeals

Page 446

242 Md. 446

219 A.2d 231

William M. WOOD v. Gilbert JOHNSON et al.

No. 191.

Court of Appeals of Maryland.

May 4, 1966.

Leroy W. Preston and David K. Ebersole, Jr., Baltimore, for appellant.

Kenneth R. Hammer, Baltimore (Sidney Blum, Baltimore, on the brief), for Gilbert Johnson, one of appellees.

J. William Schneider, J., Baltimore (Fanseen, Fanseen & Schneider, Baltimore, on the brief), for Norman R. Huffman, other appellee.

Before PRESCOTT, C. J., HAMMOND, MARBURY, BARNES, and McWILLIAMS, JJ., and J. DeWEESE CARTER, Special Judge.

CARTER, Judge.

This is an appeal by William M. Wood, one of the defendants, from the verdict of a jury in favor of the plaintiff, Gilbert Johnson, and exonerating another defendant, Norman R. Huffman. The court directed a verdict in favor of a third defendant, Reaver Huffman, owner of the Huffman car, on the basis of lack of evidence to establish agency, from which there was no appeal. The action grew out of an automobile collision caused by the car operated by the defendant, Wood, running into the rear of a disabled car operated by the defendant, Norman R. Huffman. The plaintiff, who was a passenger in the front seat of the Wood car, was thrown against the windshield and sustained serious head injuries.

All of the material evidence was produced by the plaintiff and consisted of the testimony of the defendant, Wood, the defendant, Norman Huffman, the investigating officer, the plaintiff himself, and his physician. The officer testified in substance that the accident occurred on December 20, 1959, at about 11:55 p.m. on Washington Boulevard in Baltimore City on a dry, clear night; that the Huffman car was knocked 124 feet into a parking lot and that the Wood car traveled about 45 feet after the impact; that a rub mark started about one foot from the north curb line and continued a distance of 124 feet to the Huffman car; that the boulevard runs east and west and has four lanes of traffic-two for east bound and two for west bound; that there were 'noparking' signs posted on the curb lines; that there were street lights along the boulevard between the curb and sidewalk with globes at the top of the poles 160 feet apart, staggered on the north and south sides so that they appear on one side or the other every 80 feet; that there was such a light about 100 feet west of the place where the Huffman car was stopped on the north side and another on the same side about 60 feet east; that on the south side, across the boulevard, there was also a street light about 20 feet to the west of the stopped car; that the condition of the illumination from the street light, at the spot where the car was stopped, was 'fair'; that Wood did not mention brake failure to him although he discussed the accident at the scene.

The defendant, Wood, was called by the plaintiff and testified that he picked up the plaintiff at a street intersection on the night in question and was proceeding west on the boulevard when the accident occurred; that immediately prior to turning onto the boulevard he stopped at the Monroe Street intersection for a red light and his brakes were working satisfactorily; that he was in the right lane of traffic when he noticed the Huffman car ahead of him as he crossed the railroad tracks about 125 to 130 feet from it, but did not then realize it was stopped; that when about 60 feet from it, traveling 25 to 30 miles an hour, he realized for the first time the car was stopped; that another car was traveling west in the left lane behind him and about opposite his rear wheels at that time; that he then speeded up to pull into the left lane and around the stopped car but the car beside him also speeded up at the same time and he was unable to get in the left lane; that, when he realized he could not cut around the stopped car when within 25 to 30 feet from it, he applied his brackes, which did not respond, causing him to crash into the back of the stopped car; and that his brakes required repair after the accident. In his answer to interrogatories, he did not mention brake failure as a cause of the collision.

Norman R. Huffman, another defendant, also called by the plaintiff, testified he was operating a car owned by his mother; that he and his wife had attended a drive-in movie and were on their way home when the accident happened; that as he was driving west on the boulevard, his car missed a couple of times and then 'conked out' completely; tht the battery went dead as he tried to get it started again; that he had just gotten the car that day and had no prior difficulty in operating it; that after the engine stopped, he coasted into the right lane parallel to the north curb about a foot from it and stopped; that he sat in the car for about twenty minutes before the collision, but would get out when care came along in an effort to stop them and have them push him down the street to a filling station, but none stopped; that between cars he would get back in the car as it was a cold night; that he saw the Wood car at Monroe Street, two blocks away, through his rear view mirror, got out and stood at the rear of his car hoping to get pushed; that Wood just kept on coming at a high rate of speed and crashed into the back of his car; that he had to jump into the left, west bound lane, to avoid being struck; that there was no other car in the left lane immediately prior to, or at the time of, the collision; that he made no attempt to warn approaching traffic except to stand at the rear of the car when other vehicles approached because there was sufficient illumination from the street lights for the operators of approaching cars to see his car in time to avoid a collision; that he knew of no nearby places where his car could have been repaired that night; that Wood did not say anything to him about experiencing a brake failure and made no attempt to pull in the left lane prior to the collision.

The plaintiff testified that when Wood was about a car length from the parked car, he 'gave his car the gas' to get into the left lane and crashed; that he saw no other car in the left lane alongside or to the rear of the Wood car before the crash; that he does not recall Wood applying his brakes; and that he was thrown into the windshield and injured.

Dr. Phillip F. Lerner testified he examined Johnson in October of 1960 and found scars in his forehead, drooping of the right eye-lid and damage to the third cranial nerve which were caused by the accident and were in his opinion permanent.

The defendant, Wood, contends that the court, besides erring in failing to direct a verdict in his favor at the conclusion of the whole case, also erred in instructing the jury: (a) that he must establish adequate brake inspection and unexpected brake failure by a preponderance of the evidence to escape negligence on that basis; (b) that if Wood failed to comply with the provisions of Article 66 1/2, § 271, relating to when lights are required, he would be guilty of primary negligence; and (c) in a manner that was tantamount to a directed verdict in favor of the defendant, Huffman.

In determining the correctness of denying the motion for a directed verdict, we must, of course, consider the evidence most favorable to the plaintiff, together with all reasonable and legitimate inferences which may be deduced therefrom. See Simco Sales Service of Md., Inc. v. Schweigman, 237 Md. 180, 187, 205 A.2d 245 (1964): Critzer v. Shegogue, 236 Md. 411, 415, 204 A.2d 180 (1964); Richardson v. Scott, 232 Md. 490, 494, 194 A.2d 288 (1963). Wood contends that, by calling him as a witness, the plaintiff has established, through his testimony, that the collision was proximately caused by a brake failure; that it occurred suddenly, without warning, and after adequate inspection by him and, therefore, that the plaintiff has, by his own evidence, established the collision occurred without any negligence on Wood's part and consequently his motion for a directed verdict should have been granted.

We fail, however, to find that the evidence most favorable to the plaintiff requires a determination by the jury that the collision was proximately caused by a brake failure. Even though Article 35, § 9 of the Code of 1957, permits the plaintiff to call the defendant, Wood, as his witness and contradict and impeach him to the same extent as though he had been called by the defendants, he is nevertheless bound by Wood's testimony unless it is contradicted or discredited. See Maszczenski v. Myers, 212 Md. 346, 353, 129 A.2d 109 (1957); Murphy v. Stubblefield, 133 Md. 23, 30, 104 A. 259 (1918). In speaking of when an adverse party's testimony will be considered contradicted or discredited under the statute, the Court in Proctor Electric Co. v. Zink, 217 Md. 22, at p. 33, 141 A.2d 721, at p. 726 (1958), said:

'The testimony of a witness may be contradicted or discredited by circumstances as well as by statements of other witnesses, and a jury is not bound to accept a witness' testimony as true if it contains improbabilities, or if there are responsible grounds for concluding that it is erroneous.'

Considering the plaintiff's evidence relevant to the issue of brake failure, we find that Wood's testimony was contradicted by both the testimony of other witnesses and inconsistent circumstances. Huffman testified he saw the Wood car about two blocks away and that Wood kept coming at a high rate of speed; made no attempt to cut around the stopped car and crashed into the rear of his car; that there was no other car at Wood's left at the time of the crash to prevent him from cutting around the stopped car; and that Wood did not mention brake failure to him as a cause of the accident. The plaintiff himself contradicted Wood's explanation by testifying that Wood did not attempt to cut around the stopped car until he was within about a car length from it and that he saw no evidence of Wood attempting to apply his brakes. The...