HAMMOND, J., delivered the opinion of the Court.
A tractor-trailer driving along a City street, veered to the right and struck three cars parked at the curb, when its driver suddenly became ill either just before or just after the impact. The appellee, the owner of one of the cars, sued the appellant, the owner of the tractor-trailer, and recovered judgment on the verdict of a jury. This appeal challenges the action of the trial court in denying a motion for a directed verdict and a motion for a judgment notwithstanding the verdict, and also, the court's refusal to admit in evidence parts of hospital records and a statement made to the police.
The plaintiff below produced testimony that the tractor-trailer, owned by the defendant, ran into his parked automobile, and rested. The defendant asked for a directed verdict which the court refused, holding that the evidence permitted an inference of negligence on the
The appellee, to rebut the appellant's efforts to show that the accident was a result of the sudden, unanticipated and incapacitating seizure of the driver, and so, unavoidable or an act of God, produced several witnesses who testified that after the accident, the driver of the truck was sitting up in the seat with both hands at the wheel, as a normal driver would sit. Another witness testified that he came out from the establishment in front of which the accident happened as soon as he heard the crash and that the helper was getting out of the truck as he came out of the building. At that time, this witness said the front wheels of the tractor were up on the appellant's car, and the helper went to the back of the truck, and standing on the right hand side, directed the truck driver to back off the car. When questioned as to how he did this, the witness said that the helper directed the driver: "By yelling, come back or hold it or turn the wheels." The witness further testified that the truck was "correctly" backed off the car which it struck. The witness said further that he saw the driver immediately after that and he was in the truck, sitting upright with his hands on the wheel. The witnesses all agree that shortly after the truck had been backed off and stopped, the driver was lying on the pavement shaking and frothing at the mouth and that the ambulance was then called.
It is not seriously contended here that the trial court was wrong in sending the case to the jury on the testimony
Here the tractor-trailer admittedly was under the exclusive control of the defendant, and a vehicle moving down the street ordinarily does not hit a parked car if proper care is exercised. This Court has held that the doctrine may be applicable in the case of a motor vehicle. American Express Co. v. Terry, 126 Md. 254, 261. There a car which had been parked unattended started down grade. There was precluded the possibility that an intervening act had caused the machine to start and the Court held that the evidence was sufficient to permit an inference of negligence: "... which the defendant was bound to rebut or overcome." See also Singer Transfer Co. v. Buck Glass Co., 169 Md. 358; and Hickory Transfer Co. v. Nezbed, 202 Md. 253. A number of courts have held that a moving vehicle which hits a parked vehicle
It may well be that a defendant can avoid the impact of the doctrine of res ipsa loquitur if his evidence goes beyond mere contradiction or the assertion of every precaution taken. This Court has held that if the plaintiff's testimony shows an exculpatory cause, the inference may not be drawn. Hickory Transfer Co. v. Nezbed, supra; Lee v. Housing Authority of Baltimore City, supra; Klan v. Security Motors, 164 Md. 198, 200; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 444; Strasburger v. Vogel, 103 Md. 85. It divided in two cases on the question as to whether the particular circumstances sufficiently excluded the probability of exculpatory cause as revealed by the testimony of both the plaintiff and the defendant. Potomac Edison Co. v. Johnson, 160 Md. 33; Cloverland Farms Dairy v. Ellin, 195 Md. 663. In Tittlebaum v. Pennsylvania R.R. Co., 167 Md. 397, a passenger on a train was injured by glass from a window which suddenly broke across the aisle from her. The defendant produced evidence that a boy had thrown a stone at the train. The doctrine of res ipsa loquitur was held inapplicable, on the ground that if the evidence discloses that the injury may have been caused either by the defendant's negligence or by the act of another, for which the defendant was not responsible, the doctrine does not apply. In Frenkil v. Johnson, 175 Md. 592, there was a full discussion of res ipsa loquitur, and it was said that the doctrine does not apply if the injury be inflicted by an act of God or vis major or is the result of inevitable accident, as defined or contemplated by law.
The appellant, in support of its position that the doctrine in this case should be subject to the qualification referred to in the Frenkil case, cites cases in other jurisdictions,
We assume, without deciding, that if, without contradiction or effective challenge, there had been shown that the driver's sudden illness preceded the accident, the verdict should have been directed for the appellant. That is not this case. Here, there is a very effective challenge to the appellant's position as to the time of the onset of the unexpected illness. The evidence permits a difference of opinion in the minds of reasonable men as to whether the illness preceded or followed the striking of the parked car. The testimony that the helper left his friend and fellow worker immediately after the crash to inspect the damage and chock the trailer, could reasonably be found to make his testimony that the seizure occurred before that time incredible. The explicit evidence of of the appellee's witnesses, in rebuttal, that the tractor-trailer was backed by the driver, under the direction of the helper, after the accident, also would permit the jury to find that the illness followed the accident, rather than preceded it. Cases, in situations where there is conflict as to the time of the sudden physical disability of the driver, have said that the matter is one for the determination of the jury. One is Lagasse v. Laporte (N.H.) 58 A.2d 312, where the court distinguished Cohen v. Petty, supra, saying that there the sudden unconsciousness was uncontradicted or undisputed, while the evidence before it warranted an inference that the defendant was conscious at a time when he should have acted other than as he did. See
In the case before us, the inference of negligence permissibly to be drawn from the facts of the accident was sought to be dispelled by the defendant's explanation and the validity of that effort was challenged by the rebuttal testimony of the plaintiff. Reasonable minds could draw different inferences from all the testimony presented. As was said in Potts v. Armour & Co., 183 Md. 483: "If the trial court finds that conflicting inferences may be drawn, choice of inference must be made by the jury" and we think that this is one of the cases where that must be so and that the trial court was correct in refusing to direct a verdict or to grant the motion N.O.V.
Nevertheless, we think that the judgment must be reversed and the case remanded for a new trial because of the refusal of the court to admit all of the hospital records. The case turns entirely on the narrow issue as to the exact time the driver of the tractor-trailer became incapacitated by the seizure. The excluded portions of the hospital record were, in the language adopted in Lee v. Housing Authority of Baltimore City, supra, pathologically germane to the physical condition which caused the patient to be brought to the hospital for treatment, in that they referred to apparent good health and to sudden convulsions which followed, as well as to the fact that the patient, after being removed from the truck, continued to convulse until brought into the accident room. The appellee complains that the reference in the statement about hitting three parked cars was inadmissible. We think not. In the Lee case, the hospital records, which, it was held should have been admitted under the provision of Code (1951), Article 35, Sec. 68, included the recital that the patient was brought in: "... after being burned when a gas stove exploded near her", as well as a reference to the
Since the case must be remanded for a new trial, it is appropriate to say that the statement which was made by the helper on the truck to the police officer was, in our opinion, admissible as part of the res gestae. The testimony shows that it was given within seven or eight minutes, certainly not more than ten, after the accident happened. One of the witnesses for the appellee testified that he came from the establishment in front of which the crash occurred as soon as he heard it and that, after observing the driver sitting at the wheel, he went straight in and called the police. The police say that they received the call at 3:11 P.M., were at the scene of the accident at 3:16 P.M., and immediately took the statement from the helper. We think that his responses were made under the "immediate spur" of the occurrence
Judgment reversed, with costs, and case remanded for a new trial.