Antonelli v. Pugh , 231 Md. 194 ( 1963 )

Henderson, J.,

delivered the opinion of the Court.

These appeals arise out of a collision between two automobiles, one driven by Stewart J. Whitney, Sr., in which his twelve year old son, Stewart J. Whitney, Jr., was a passenger. The father died before the ambulance arrived and the son died in the hospital the next day without making any statement. The car, a 1949 Mercury, was owned by Robert J. Pugh, who testified that Whitney was driving it as a convenience to him, so that he could get it home to put in a new transmission, and replace two burnt valves. The other car, a 1955 Packard, was owned by Vincent L. Antonelli, and driven by his daughter Marlene (now Mrs. Thompson), who was seriously injured but survived the accident and testified in the case.

Suits were filed by the administratrix of Whitney, Jr., the administrators of Whitney, Sr., and the State to the use of his widow and living children against the owner and driver of the Antonelli car. The Antonellis in turn sued Pugh and the administrators of Whitney, Sr. The cases were consolidated for trial and submitted to a jury on special issues, after motions for directed verdicts had been submitted by each party and denied. The jury found verdicts in varying amounts in favor of the Whitneys and against the Antonellis, and found for the Whitneys in the suits by the Antonellis. Motions for judgment n.o.v. were overruled, except as to the judgments against Mr. Antonelli, which were stricken on motion to revise. We shall first deal with the question of his liability, as owner of the Packard.

Although his ownership was alleged in the amended declaration, and conceded, there was no allegation or proof of agency. Miss Antonelli testified that she was using the car to visit a friend. The Whitneys relied upon the admitted fact that Mr. Antonelli had signed an application for his daughter, who was under 21 years of age, under Code (1957), Art. 66½, sec. 93. Although not proven until after the trial, it was shown in connection with the motion to revise the judgments, that a certificate of Financial Responsibility had been filed and was in effect at the time of the accident, and hence that he was not liable on the theory of imputed negligence. See State, Use of Shipley v. Walker, 230 Md. 133, 137, and Rule 625. We think the trial court did not abuse its discretion in striking the judgments.

.The motions for directed verdicts call for a close examination of the evidence. Miss Antonelli was the only eye-witness, since the occupants of the Mercury died without making any statements and no third person saw the collision. She testified that she was driving west on the Lanham-Severn Road at about 6:15 P.M. on October 24, 1959. She had had a regular driver’s license for only ten days. It was raining, but the visibility was good. After she came over the crest of a hill and around a slight curve she started down a slight grade on a straight stretch of road, when “just all of a sudden there was a car almost right in front of me, and he seemed to be going awfully fast.” She remembered “trying to turn the wheels to the right and that was it.” She testified that she was in her proper westbound lane, driving at a speed of thirty-five miles an hour in what was stipulated to be a fifty-mile zone. She was rendered unconscious by the crash and came to in the hospital.

The testimony on the other side was almost wholly circumstantial. A neighbor who heard the crash and called ambulances testified as to the position of the cars. So did a police officer, Souder, who arrived before the cars were moved, another officer who took photographs, Mr. Antonelli, and a garage man. All agreed that the left fronts of both cars were crushed as far back as the windshields. The paved or macadamized portion of the two-lane road was 22 feet, 4 inches wide, with 8 foot dirt shoulders. There were no skid marks, but the Mercury was entirely off the paved portion of the road on the south side (the Whitneys’ lane) with its rear against the bank. The Whitney boy was lying in a ditch beside the Mercury, and a seat cushion was also on the south shoulder. The Packard was also in the eastbound lane on the south side of the road, although its right rear wheel was over the solid yellow center line of the road. Most of the debris was in the eastbound lane, although bits of chrome were scattered over the road, some on the north side. The fronts of both vehicles were in contact. There were two cut marks in the eastbound lane, leading to the left front rim of the Mercury, on which the tire was cut in two. Souder, however, testified that he was unable to locate the point of impact.

The crucial question in the case is whether there was sufficient evidence in the case to support the jury’s findings that Miss Antonelli was guilty of negligence and Whitney, was not. We think there was. The jury was not bound to- believe Miss Antonelli’s story, which was not unimpeached, and certainly not undisputed. If the occupants of the Mercury had been alive, failure to produce them might have permitted an inference that their testimony would be unfavorable. Disbelief of Miss Antonelli’s testimony that she was in the proper lane might, under the circumstances, amount to belief that she was in the wrong lane. Cf. Gray v. Dep’t of Correction, 230 Md. 508, 511. Moreover, there was no explanation as to why she did not see the Mercury until the moment of impact. This in itself might be some evidence of failure to keep a proper lookout. This was not a case in which the accident could be found to be inevitable or unavoidable. One or both of the drivers must have been over the center line and hence at fault. The position of the cars on the south side of the road and the location of debris would support a reasonable inference, we think, that the impact occurred there, even in the absence of expert testimony to reconstruct the events leading to the accident. Cf. Acme Poultry Corp. v. Melville, 188 Md. 365, 372 and Melville v. State of Maryland, 155 F. 2d 440, 442. (C.A. 4th). See also Terry v. O’Neal, 194 Md. 680, 689 and Scott v. James Gibbons Co., 192 Md. 319, 330. The case of Shafer v. State, 171 Md. 506, relied on by the appellees, was distinguished on its facts in Wolfe v. State, 173 Md. 103. Of course, the circumstantial evidence must rise above conjecture. Cf. State, Use Stickley v. Critzer, 230 Md. 286. We think it does, under the unusual circumstances of the instant case. It follows that the Antonellis were not entitled to a directed verdict on the strength of her testimony, although it was uncontradicted by any direct testimony. We need not now consider whether the distinction between uncontroverted and uncontradicted testimony is sound or tenable. Cf. Smith v. Bernfeld, 226 Md. 400, 405, and Vogelsang v. Sehlhorst, 194 Md. 413, commented on in 11 Md. L. Rev. 44. See also Rickard v. Ellis, 368 P. 2d 396 (Ore.), note 11 Mich. L. Rev. 198 and Edelen v. First Nat. Bank, 139 Md. 413, 419.

The Antonellis contend, however, that the trial court erred in refusing to grant an instruction that Whitney was guilty of negligence per se in failing to wear eyeglasses at the time of the accident, and that the jury were entitled to consider what effect the absence of glasses would have on his driving. These requested instructions were based upon the testimony of Officer Souder that he found on the person of Whitney, Sr., a driving permit issued by the District of Columbia for him to drive, with the restriction that he wear glasses, and that no glasses were found at the scene of the accident or at the hospital. The alleged D. C. permit was not produced or offered in evidence. Mrs. Whitney testified that they had moved to Bowie, Maryland, about the middle of September and he had obtained temporary work as a plumber’s helper. Pie had a chauffeur’s license issued by the State of New York, where they had resided for many years, and the license, good until May 31, 1961, was offered in evidence without objection. She testified that her husband had applied for a job as a bus driver in Washington, D. C., and obtained a permit. She did not know if it contained a restriction or not. Her husband never wore glasses, except when reading, and had no eye trouble. He did not obtain a job in the District, although she received a notice for him to report, after his death.

Under the circumstances it seems clear that Whitney was properly driving under his New York license. Code (1957), Art. 66½, sec. 87 (d) exempts a non-resident of Maryland from the necessity of obtaining a Maryland license, if “licensed in his home state * * We think the proof shows that New York was still his home state, and that he had not become a resident of, or been employed in, the District of Columbia. Hence the restriction imposed in the District was inapplicable, even if we assume, without deciding, that the restriction would be sufficient to establish his inability to drive in Maryland without glasses, that his eye sight was impaired, or that the failure to use his glasses was a contributing cause of the accident. In any event, all of the evidence was before the jury for consideration. We find no error in refusing the instructions.

Judgments affirmed, costs to be equally divided.