Roberts v. Cave

263 A.2d 863, 257 Md. 582, 1970 Md. LEXIS 1342
CourtCourt of Appeals of Maryland
DecidedApril 8, 1970
DocketNo. 291
StatusPublished
Cited by1 cases

This text of 263 A.2d 863 (Roberts v. Cave) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. Cave, 263 A.2d 863, 257 Md. 582, 1970 Md. LEXIS 1342 (Md. 1970).

Opinion

Barnes, J.,

delivered the opinion of the Court.

At 9:00 p.m. on Friday, April 21, 1967, Richard Augusta Burgess (Burgess) met his pre-arranged date, Rosezena Pauline Cave (Miss Cave), at a bar in the Pimlico section of Baltimore City. Each had a beer in the bar and then they left together to go somewhere where they could dance and play shuffieboard. Traveling in a panel truck owned by Burgess’ employer, Samuel Angelo Brocato (Brocato), the couple arrived at a second bar about an hour later. There, they each had another beer and danced for “an hour or so.” Then they left in the truck and went to a third bar, where each had another beer and played shuffieboard. At approximately 1:30 a.m. on April 22, they left that bar and proceeded on their way to a Chinese restaurant to eat. During the trip to the restaurant the couple was engaged in a conversation and from time to time would look at each other while talking. Unfortunately, their trip came to a premature finish when the panel truck being driven by Burgess struck the rear of a double-parked automobile in the 2100 block of Mount Royal Terrace at about 2:00 a.m. Miss Cave described what took place in the truck just prior to the accident as follows:

“* * * [H] e [Burgess] was talking to me, and he would take — looking at me from time to time, and we — right before we saw the car, he was looking at me and I was talking to him and [584]*584looking at him and we both turned around about the same time and the car — we saw it right ahead of us, but the car — it was too close up on top of the car before either one of us saw it.”

In August 1967 Miss Cave brought suit against Burgess and Lamar Roberts, the owner of the double-parked car, in the Baltimore City Court for permanent injuries and other damages she sustained in the accident, allegedly due to the negligence of the defendants. Miss Cave was unable to locate Burgess for service of process and in July 1968 the lower court granted her petition under Article 66Y2, Section 167A of the Annotated Code of Maryland (1967 Replacement Volume) to join in and make a party defendant the Unsatisfied Claim and Judgment Fund Board (Fund). An Amended Declaration naming the Fund as a defendant was then filed and, thereafter, in October 1968 a second Amended Declaration was filed naming Brocato, the owner of the truck operated by Burgess, as an additional defendant in the case.

The case was tried before a jury in June 1969. At the close of the Plaintiff Cave’s case, Roberts and the Fund each filed a Motion for a Directed Verdict. These motions were denied then and upon their renewal at the conclusion of the entire case. However, the lower court (Cullen, J.) did direct a verdict in favor of Brocato upon his Motion at the close of the evidence. The case was then submitted to the jury and a verdict was returned in favor of Miss Cave for $15,500 against both Roberts and the Fund. Roberts’ subsequent Motion for Judgment N.O.V. or in the alternative for a New Trial was denied and the judgment was made absolute on July 3, 1969. Roberts alone has taken a timely appeal to this Court from the final judgment.

Roberts’ appeal to this Court asking us to reverse the action of the trial court is based upon two grounds (1) that Judge Cullen should have granted Roberts’ Motion for a Directed Verdict at the close of Miss Cave’s case or at the close of all the evidence; and, (2) that Judge [585]*585Cullen made various errors in his instructions to the jury on points of negligence law. Since we are of the opinion that Roberts was entitled to a directed verdict at the close of Plaintiff Cave’s case, and we so hold for the reasons which follow, we need not reach and consider the alleged errors in the lower court’s instructions to the jury.

The basis of Roberts’ Motion for Directed Verdict at the close of the evidence offered by the Plaintiff Cave included the following grounds:

“1. That the uncontradicted and conclusive evidence offered by the Plaintiff establishes that the Defendant Lamar Roberts did not leave his vehicle in a double-parked position prior to the accident and said evidence rebuts the prima facie presumption that the Defendant Lamar Roberts, or his agent, servant or employee did so leave his vehicle.
“2. That there is no evidence of negligence on his part which was a direct and proximate cause of the Plaintiff’s injuries.”

It is upon these two stated grounds which we think Judge Cullen was required to direct a verdict in favor of Roberts upon his motion.

As this Court has often stated, “In deciding whether a defendant’s motion for a directed verdict or for a judgment n.o.v. should have been granted, we shall, as we must, consider the evidence together with all reasonable and legitimate inferences which may be deduced therefrom, in the light most favorable to the plaintiff.” Stoskin v. Prensky, 256 Md. 707, 262 A. 2d 48 (1970). Accordingly, for the purposes of the opinion, we shall so consider the evidence introduced by Miss Cave with regard to the grounds of Roberts’ motion.

It is undisputed by the parties that as the trial began Miss Cave had the benefit of a rebuttable presumption that the car had been double-parked by Roberts or his agent acting for him, since Roberts has never denied ownership of this car. Fowser Fast Freight v. Simmont, [586]*586196 Md. 584, 588, 78 A. 2d 178, 179 (1951). There is also the uncontradicted testimony of the Plaintiff Cave, corroborated by the testimony of the investigating police officer, that Roberts’ car was double-parked without lighted taillights at the time of the accident. We agree with Roberts’ counsel who concedes that this evidence of a negligently double-parked automobile, when coupled with the presumption that this had been done by Roberts or someone on his behalf, constituted a prima facie case for Miss Cave against Roberts. The problem in this case arises, however, because counsel for Miss Cave apparently chose not to rely on this presumption of Roberts’ negligence. Rather, the Plaintiff Cave elected to call the investigating police officer and the Defendant Roberts as her witnesses to give testimony as part of her case. In so doing, Miss Cave elicited testimony from her own witnesses which directly conflicted with and rebutted the presumption of Roberts’ responsibility for the double-parked automobile. When called by Cave to take the witness stand, the investigating officer read from his official records of the accident a notation of an unsigned oral statement made by Roberts to another interviewing officer over the telephone several hours after the accident.

“(The Witness) Owner stated his vehicle was parked at the curb about 11:00 p.m., on April 21st, 1967 and — (west curb of Mt. Royal Terrace), and he was visiting a friend around the corner.”

When Roberts was called as an adverse witness by Miss Cave’s counsel he testified in direct examination:

“Q. And on that night in question, where were you when you last saw your car? A. When I last saw it, I had parked the car on the corner of Newington Avenue, that is Newington and Park.”
“Q. And when you say you last saw it, what [587]*587time was that? A. That was approximately 11:30 or 12:30, something like that.
“Q. Did you take the car to that location at Newington Avenue and Park Avenue? A. That is where I parked it, yes, sir.

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Cite This Page — Counsel Stack

Bluebook (online)
263 A.2d 863, 257 Md. 582, 1970 Md. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-cave-md-1970.