179 A. 179 | Md. | 1935
This case embraces two appeals in one record from the Court of Common Pleas of Baltimore City. On the 23rd day of February, 1934, Sylvia Mayson, who at that time was employed as an entertainer at the Oasis Cabaret, a public resort located at Frederick and Baltimore Streets, in the City of Baltimore, having completed her duties for the night's entertainment, at about two A.M. left the cabaret in company with Patricia Lamonte, who was a coemployee, and a Mr. Shipley, a guest of the cabaret. In front of the establishment the party hailed a taxicab driven by the defendant Rubenstein, trading as the Peerless Cab, Inc.; and the driver was instructed first to take the party to 1912 North Castle Street, which was the home of the plaintiff. Upon reaching this point, however, *666 and without leaving the taxicab, they continued their journey to the Midway Tavern, another public resort, located in the southwest section of the city. On the journey between the two resorts, Mr. Shipley and the two other passengers occupied the rear seat; the driver being alone on the front seat. Arriving at the Midway Tavern, they remained for a short while, leaving the latter resort around 3.30 A.M.; and upon their return, Miss Lamonte occupied the front seat of the cab, the other two passengers continuing to occupy the rear seat. The course of the return trip took them to Baltimore Street and then eastwardly on Baltimore Street; and when reaching the intersection of Liberty and Baltimore Streets, the cab collided with a dairy truck belonging to the Western Maryland Dairy Corporation, also known as the Fairfield-Western Maryland Dairy, approaching from the north and driven by Gustav B. Zeller, its employee. The evidence adduced by the respective parties as to the speed at which they were driving at the time of the accident, as well as to the distance from the point of intersection at which each observed the other approaching the intersection, is, as usual in such cases, conflicting; but the physical facts adduced by the testimony of the two drivers located the point of collision at approximately the center of the intersection of the two streets, although it is impossible, from the evidence, to determine which motor vehicle first reached and entered the street intersection. Both the taxicab and truck were considerably damaged, and both vehicles came to a stop at or near the southeast corner of the intersection of the two streets. As a result of the collision, the plaintiff received extensive lacerations over the forehead, numerous other lacerations over her entire face and jaw, injury to her teeth, bruises on the left side of the neck, and serious bruises about her body, especially her right hand, knees, and ankles. By virtue of these injuries she was confined in Mercy Hospital for nearly a week, and at other places for nearly three and a half months. She also suffered from insomnia, *667 and was under the care of her physician for five and a half months. Miss Lamonte was also injured.
The record contains fourteen exceptions, thirteen of which deal with rulings on evidence, and the fourteenth with the ruling of the trial court on the prayer. All of the exceptions as to rulings on evidence were abandoned in this court except Nos. 1 and 11; and these will be dealt with in their order.
At the conclusion of the plaintiff's testimony, and after she had exhibited scars on her face, neck, and forehead, her counsel offered to exhibit to the jury the injuries to her knees, to which formal objection was made by the defendants Zeller and the Dairy Corporation. Counsel for plaintiff stated that the reason for his desire to have his client exhibit her knees was because of her occupation, she having testified that her vocation was that of an entertainer, dancer, and singer, and the disfiguration of her knees vitally affecting her in this respect; and the court stated, in explanation of its ruling, that while ordinarily such scars upon the knees of a plaintiff would not be an element of significance, in view of the plaintiff's occupation the objection was overruled. Thereupon the plaintiff was permitted to exhibit her knees to the jury. The admission of this form of evidence, it must be conceded, was entirely in the discretion of the trial court, and we can see no impropriety or error in its ruling. The plaintiff had testified that she had two brush burn wounds on her knees, the scars of which remained. The exhibition of her knees merely corroborated her oral testimony in this respect, and, if anything, was additional evidence incumbent upon her to meet the burden of proof. In Chicago A.R. Co. v. Clausen,
The eleventh exception raises the question as to the admissibility of evidence showing the prior conviction of Zeller, the driver of the dairy truck, in the Traffic Court of Baltimore City, for failing to give the right of way upon the occasion of the accident which forms the basis of the instant case. The witness Zeller having testified that he had given evidence in the traffic court in regard to *669
this same accident, his entire testimony in that court was read to him, and he corrected one statement in it relating to the distance that he first saw the cab coming down Baltimore Street. He was then asked what disposition was made of the case in the traffic court, which was objected to, and the court said: "In so far as this witness alone is concerned, the objection is overruled." The witness thereupon answered that he was fined twenty-five dollars and costs for failing to give the right of way. In the trial of a civil suit for damages arising from an accident, it is within the discretion of the court to permit testimony to be given by a party to the case as to the disposition of criminal charges against him growing out of the same accident; and its action will not be disturbed unless it clearly appears to have been an abuse of such discretion. Nelsonv. Seiler,
In Mattingly v. Montgomery,
The rule with respect to the admission of this class of evidence is not now as broad as in the past, and is becoming increasingly constricted with advancing years. Greenleaf and Wigmore, in their respective works on Evidence, after thoroughly canvassing a great mass of decisions on this point, incline to the theory that the better practice would be to avoid all reference, in civil cases, to the action taken on criminal charges arising from the same subject-matter. However, as stated, in this case the jury were given the evidence in controversy with instructions for its restricted consideration; and we cannot say that the trial court abused its discretion in this regard.
The fourteenth exception relates, as hereinbefore stated, to the ruling on the prayers. The only prayers embraced in this exception, to which objections are pressed in this court, are the defendants Zeller and the Dairy Corporation's A and B prayers, and the defendants Rubenstein and Cab Corporation's A prayer, all of which were rejecteed by the trial court. The A prayer of the defendants Zeller and Dairy Corporation asked a *671 directed verdict in their favor because of no legally sufficient evidence of negligence on their part to entitle the plaintiff to recover; and their B prayer asked a similar verdict because from all the evidence in the case it appeared that the plaintiff was guilty of negligence which directly contributed to the happening of the accident complained of. There was evidence adduced in the case tending to show that the dairy truck operated by Zeller was, at the time of the accident, being driven recklessly, and that it was driven beyond the north line of Baltimore Street, at its intersection with Liberty Street, after the taxicab driven by Rubenstein had entered the intersection, approaching from the dairy truck driver's right. Under this state of facts, it was not the province of the court to weigh the conflicting testimony, but, in our opinion, the jury was entitled to pass upon its sufficiency. 2 Poe Pl. Pr., sec. 295 (a).
It is contended by the appellants that the plaintiff was guilty of contributory negligence because, being seated on the rear seat of the taxicab, she could have noticed Rubinstein, the driver, engaged in conversation with Miss Lamonte, a fellow passenger on the front seat, and could have noticed the alleged attempt of the driver to put his arm on the back of the seat. It is testified by Miss Lamonte, however, referring to this action on the part of the driver, that she told him she did not like it, "so he put both hands on the wheel and still continued to talk, but after putting his hand up there once, and me telling him not to do it, he didn't do it again."
"Q. Well, now, how far away from the scene of the accident was it that he put his arm up over the back of the seat? A. Oh, it was about — as I told you, he started to talk to me about halfway home from the Midway Tavern, and he probably talked to me two or three minutes and put his hand up there, and I told him I didn't like it. Q. Well, I say, how far away from the scene of the accident was that? A. I don't remember exactly. Q. Well, was it a few feet, or a few yards, or a few blocks? A. Oh, no, it was blocks. Q. And then you say after you *672 protested he took his hand down and kept both hands on the wheel? A. That's right."
Clearly, if the single act above detailed was observed by the plaintiff (and it follows that if she saw the driver place his arm on the back of the seat, she was also in a position to observe him remove it), there was no duty incumbent upon her to warn him to do what he had done without warning. Besides, this act of the driver took place blocks away from the scene of the accident, and could have no bearing on the charge of contributory negligence against the plaintiff. It can hardly be logically contended that a conversation engaged in by the driver of a motor vehicle with a passenger sitting beside him is an act of negligence; and we cannot conclude that the failure of the plaintiff to protest against the conversation was an act of contributory negligence. In the case of Merrifield v. C.Hoffberger Co.,
What we have said with reference to the B prayer applies with equal force to the A prayer of the defendants Rubenstein and Cab Corporation, and therefore it is unnecessary for us to discuss the last-mentioned prayer further in this opinion.
Finally, there is a question attempted to be raised before this court, and argued in the appellants' briefs, based upon the refusal of the trial court to grant motions for a new trial, filed by the respective defendants, and a special motion to strike out the verdict and grant a new trial, jointly filed by the defendants, upon an affidavit of one Judson K. Kirby to the effect that John H. Segwalt, one of the jurors who rendered the verdict, during the interval in which the case was being tried, visited the Oasis Cabaret. The affidavit is purely hearsay evidence, and for that reason alone should not be considered. Motions for a new trial are addressed to the sound discretion of the court, and from its action in granting or refusing them, whether absolutely or on terms, no appeal will lie. 2 Poe's Pl. Pr., sec 349. This same principle is affirmed in the case ofWashington, B. A. Electric R. Co. v. Kimmey,
Finding no error in the rulings of the trial court, the judgment will be affirmed.
Judgment affirmed, with costs to the appellee.