STEVENS v. CHANDLER MOTOR COMPANY, INC. ET AL.
No. 194, September Term, 1959.
Court of Appeals of Maryland
Decided May 16, 1960.
222 Md. 399
Kelley Litteral and Harold T. Grier, for appellant.
Carleton U. Edwards, II, and John J. Pyne, for appellees.
As the result of a collision between two automobiles during a snowstorm on the snow-covered highway from Gaithersburg to Rockville, on February 1, 1958, three suits were filed in the Circuit Court for Montgomery County. The losing party, claiming error in the instructions to the jury, seeks reversal of the judgments entered against her.
The Chandler Motor Company, Inc. (Chandler), the owner of the Mercury automobile involved in the accident, sued Georgia Belle Stevens and Charles Stevens (the Stevens) for property damage (in No. 7829). Virginia Bryant Holmes (Holmes), operator of the Mercury, sued the Stevens for personal injuries (in No. 7956). The Stevens (Georgia Belle and Charles), the operator and owner, respectively, of the Chevrolet automobile involved in the accident, countered by suing Holmes and Chandler for personal injuries and property damage (in No. 8207). The suits were consolidated for trial. At the close of the testimony, Chandler and Holmes (the appellees here) entered voluntary nonsuits (in Nos. 7829 and 7956) as to Charles Stevens. The verdicts of the jury were in favor of Chandler and Holmes in all three cases. When the trial court denied motions for new trials and judgments n. o. v., only Georgia Belle Stevens (the appellant here) appealed from the judgments—two for money damages and one for costs—entered on the verdicts. The only claim of error is based on the refusal of the trial court tо grant an instruction as to the possibility of a sudden emergency.
Shortly before noon on the day of the accident, as the au
According to the appellant, as she approached a left curve, she saw the Mercury come around the curve and on to the straightaway and that as it rounded the curve it was on her (the appellant‘s) side of the road. At the hospital, approximately a half-hour later, after she had regained consciousness, the appellant was unablе to give the trooper, Charles F. Gowans, any reason why the accident happened except that as she was going south on the snow-covered road she suddenly lost control as the Chevrolet went to the left and collided with the Mercury. However, at the trial, the appellant testified to the effect that when she saw the Mercury coming toward her, she judged or guessed from the “bank and telephone poles,” that it was in her path; that she was very positive the Mercury was on her side of the road when she “had that little time to do something;” and that as a consequence she “immediately just switched and turned left” as she “saw this oncoming car.” Even on cross-examination, her testimony was much the same, though she admitted, since she could not see the center line for the snow, that she could have been mistaken as to where the Mercury was on the roadway when she first saw it, and reiterated that it was on the straightaway when the accident occurred.
According to the appellee Holmes, and A. B. E. Anderson,
The trial court charged the jury generally as to primary and contributory negligence and as to proximate cause, the burden of proof and the measure of damages. The jury was also informed when and under what circumstances the negligence, if any, of the respective operators of the automobiles could be imputed to the respective owners аnd when such negligence could not be so imputed. The jury was further instructed with respect to the rule of the road based on
“[B]ut since the evidence, in some degree, discloses that а traffic violation may be involved, the Court is going to instruct you on the traffic violation or traffic law pertaining to the case. Drivers of vehicles proceeding in opposite directions shall pass
each other to the right and upon roadways having widths of not more than one lane of traffic in each direction, each driver shall give to the other at least one-half of the main traveled portion of the roadway, as nearly as possible. Now thаt is the statute law of Maryland with reference to vehicles passing on a highway where there are two lanes, but the violation of a traffic regulation does not of itself constitute negligence unless such violation is the proximate cause of the accident.”
Although requested, the court refused to instruct the jury with respect to the assertion by the appellant Stevens that she had acted in an emergency which could excuse apparent negligenсe. There was an exception to the failure to instruct on this point.
Under the circumstances in this case, where it was uncontradicted that the collision occurred on the appellant‘s wrong side of the road, the instructions given, particularly the part quoted above, absent an adequate instruction with respect to negligence on the part of the appellee Holmes and/or absent an instruction embodying the theory of the appellant that she had been confronted with a sudden emergency, was tantamount to a directed verdict in favor of the appellees.
If the instructions bearing on the alleged primary negligence of the appellee Holmes in the case (No. 8207) of Stevens against Chandler and Holmes had been adequate, we think the necessity of invoking the emergency doctrine would have been eliminated. But the instruction on this point was clearly deficient. Other than mere reference in a general way to primary negligence the instructions did not deal with the situation it is claimed existed as of the few seconds before the collision occurred when the Mercury automobile first rounded the curve and came into the appellant‘s view. Indeed it appears that the only reference to the rules of the road was confined to the one concerning the passing of automobiles approaching in opposite directions. The rule of the road requiring motor vehicles to be driven on the right side of the road was not mentioned, yet a violation of that rule will constitute negligence, if, but only if, it was a direct
The appellant could have requested instructions, based on her theory of the facts, that the jury be charged as to the negligence of the appellee Holmes as well as to the emergency. Had an instruction as to the negligence of Holmes been given, her negligence, if any, would, of course, have been contributory in the cases (Nos. 7829 and 7956) of Chandler and Holmes against Stevens. The appellant, however, sought such an instruction only as to the alleged emergency. We think the refusal to give it in these two cases was clearly erroneous.
It has been held that “[o]ne who is apparently guilty of negligence excuses his apparent negligence by asserting that he acted in an emergency and that what in other circumstances would have been negligence is not negligence in view of the emergency.” Sonnenburg v. Monumental Motor Tours, 198 Md. 227, 238, 81 A. 2d 617, 622 (1951). Other than this case it seems superfluous to cite many authorities in support of this well known rule of law. In the recent case of Lehmann v. Johnson, 218 Md. 343, 146 A. 2d 886 (1958), Chief Judge Brune, speaking for the Court, had occasion to review many of the aspects of the emergency doctrine in this State. Most, if not all, of the Maryland cases were cited therein.
As we see it, the doctrine of negligence in emergencies is a defense or a shield against liability. It may, but need not, come into play as the result of negligence on the part of a plaintiff. Here (at least in Nos. 7829 and 7956), the legal shield had to spring from action on the part of the appellee Holmes which was negligent. Whеther or not there was in fact an emergency as the appellant alleged should have been submitted to the jury. Warnke v. Essex, 217 Md. 183, 141 A. 2d 728 (1958). But the court refused to submit the question (the alleged emergency) to the jury and no one thought of submitting to the jury the other point (the contributory negligence of Holmes), which arose out of the same set of
There is, therefore, no doubt that the judgments in the cases (Nos. 7829 and 7956) of Chandler and Holmes against Stevens must be reversed and remanded for new trials unless we can rule, as the appellees insist we should, that the error of refusing to grant an emergency instruction was not prejudicial because it was cured by the verdict. Their contention—based on the conclusion that since the verdict of the jury in the case (No. 8207) of Stevens against Holmes and Chandler necessarily was bottomed on a finding that the appellee Holmes was not guilty of any primary negligence in that case, it also established that she was not guilty of any contributory negligence in the cases (Nos. 7829 and 7956) of Chandler and Holmes against Stevens—is that the jury by its verdict indicated that it had accepted the appellees’ version of the facts which did not raise the emergency issue. The difficulty with this contention is that the verdicts must do more than indicate the possibility that the jury accepted one party‘s version of the fаcts rather than the facts relied on by the opposing party. The principle of the cases seems to be that a court may not rule that an error in refusing to grant an instruction or the giving of an erroneous charge can be cured by the verdict when the court is required to speculate as to what facts the jury relied on in reaching the verdict it did.
Since there is no doubt that the lower court should have given an emergency instruction, the real question, then, seems to depend on whether it is necessary for a court to speculate as to what facts or circumstances, or combinations thereof, induced the jury to decide as it did. It is, of course, impossible to hold that the verdict will cure the failure to give an instruction, or the giving of an erroneous one, in every case. On the contrary, each case must be separately examined to ascertain, for instance, (i) whether the position of the objecting pаrty would have been improved if the instruction had been granted as requested since the primary question of liability had been resolved in his favor;1 or (ii) whether the
In the two cases (Nos. 7829 and 7956) of Chandler and Holmes against Stevens, it is quite possible that the jury, had it been given an appropriate emergency instruction, might also have found that the appellant was not at fault in view of the emergency. Besides, and more to the point, it is evident that we cannot determine without speculation what facts, or combinations thereof, caused the jury to find that the appellee Holmеs was not negligent. The jury could have believed (i) the testimony of the trooper that the appellant had stated that
But in the case (No. 8207) of Stevens against Holmes and Chandler—though it is not based on any theory of the curative effect of the verdict of the jury—it appears that the judgment for costs in favor of the appellees must be affirmed. In this case, where the appellant was the plaintiff and nоt the defendant, the existence of an emergency as such had no appli
We deem it unnecessary to discuss the other contentions of the appellees—that (i) the form of the requested instruction was ambiguous and misleading [in that it lacked some of the essential elements of an emergency charge and had misstated others] and (ii) that the blackboard diagram of the scene of the accident was not preserved by the appellant—which, in any event, wеre inconsequential. As to the first, the appellees are referred to Maryland Rule 554 b 1 and particularly Rule 554 c. As to the second, the record discloses that
Judgments in Nos. 7829 and 7956 reversed and cases remanded for new trials; judgment in No. 8207 affirmed; two-thirds of costs to be paid by appellees and one-third by appellant.
HENDERSON, J., dissenting in part, filed the following opinion.
Upon the authority of Sieland v. Gallo, 194 Md. 282, 287, and the сases there cited, I think the alleged error, in the failure to instruct as to the effect of an emergency, was cured by the verdicts. See also Wright v. Baker, 197 Md. 315, 318. It is true that here the consolidated cases were not tried upon issues, as in the case last cited, but a correct analysis of the jury‘s findings leads inevitably, I think, and without “speculation,” to the conclusion that the alleged error was harmless.
In the action by Mrs. Holmes against Mrs. Stevens, the verdict in favor of Mrs. Holmes could only be predicated upon findings that Mrs. Stevens was negligent and that Mrs. Holmes was not guilty of contributory negligence. Again, in the action by Mr. Stevens against Mrs. Holmes, since he as the owner of the vehicle used by Mrs. Stevens on her own account, would not be barred by the contributory negligence of Mrs. Stevens, the verdict in favor of Mrs. Holmes could only be predicated upon a finding that Mrs. Holmes was free from negligence. It would seem to follow, as the night the day, that the alleged emergency wаs not created by the neg
Factually, the issues in the instant case were simple, and capable of resolution by the determination of whether one or both of the operators were at any time upon the wrong side of the road. The majority opinion outlines only one theory upon which Mrs. Stevens could recover, in suggesting that the jury could have believed Mrs. Holmes crossed the center line when rounding the curve, but that she had returned to her own side “in time to avoid being guilty of negligence,” and that there was “the possibility of an emergency situation, which, if found to exist, would have excused the appellant [Mrs. Stevens] from liability.” In my view, if Mrs. Holmes crossed the center line at any time, in such proximity to the рoint of collision as to be the cause of Mrs. Stevens’ turn to the left, the jury could not have found Mrs. Holmes free of negligence. Conversely, if Mrs. Stevens turned to the left, at a time when such a choice was not forced upon her by Mrs. Holmes, Mrs. Stevens would not be excused from the consequence of her choice, even if she had been in the proper lane at that time. In short, I can visualize no factual situation, consistent with the findings of the jury, that would allow her to reсover against Mrs. Holmes, or vice versa. I think all of the judgments should be affirmed.