
    GUTTERMAN v. BIGGS, et vir
    [No. 162,
    September Term, 1967.]
    
      Decided April 3, 1968.
    
    
      The cause was argued before Hammond, C. J., and Horney, Marbury, McWilliams and Finan, JJ.
    
      William J. Rowan, III, with whom were Robert C. Heeney and Heeney, McAuliffe & McAuliffe on the brief, for appellant.
    
      Earl H. Davis for appellees.
   Marbury, J.,

delivered the opinion of the Court.

On July 22, 1964, the appellee, Aldona A. Biggs, was a passenger in a 1963 Ford sedan owned by her and driven by her teenaged son. Their vehicle was in a line of traffic headed in a westerly direction in the 1800 block of Old Georgetown Road, one of the main streets of Bethesda, in a suburban area of Montgomery County, when they were struck from behind by a 1964 Triumph roadster, driven by the appellant, Robert P. Gutter-man, II, resulting in $400 damages to the appellant’s car and $125.87 to the appellee’s car. The impact caused serious injury to Mrs. Biggs, causing her to be hospitalized and requiring considerable medical attention.

In the court below, a jury found in favor of the appellees, Mr. and Mrs. Bertram J. Biggs, Jr., awarded Mrs. Biggs damages in the amount of $10,000 as compensation for her injuries and awarded Mr. Biggs $6,000. The appellant, at the close of all of the evidence duly moved for a directed verdict which was denied, and also filed a motion for a new trial which was taken under advisement by the judge, who subsequently filed a written opinion on March 6, 1967, denying that motion and judgment was entered upon the verdicts for the appellees on March 7, 1967.

The sole issue on this appeal is whether it was error for the judge to instruct the jury that as a matter of law there was no contributory negligence in this case.

The facts testified to at the trial are as follows. Mrs. Biggs stated that her vehicle was in a line of traffic with approximately five cars in front of it and that her automobile and those in front of it were stopped for a red light and had been stopped for about a minute when they were struck from behind. Edward J. Biggs, the driver of the Biggs vehicle, testified substantially to the same facts as did his mother. Roy Dennis, a truck driver who witnessed the accident, testified that he had slowed to about twenty miles per hour when the appellant came from behind him, apparently to pass, and that there was no room for him to get back in line and that he (appellant) struck the rear of the Biggs vehicle which was then at a standstill. Another witness, Otho Viands, a delivery truck driver, was going-east on Old Georgetown Road when he witnessed the accident. He testified that the appellant came from behind a truck and could not get back into line and collided with the rear of the appellee’s automobile. He also stated that the Biggs vehicle had been stopped for about fifteen seconds and that there were eight or ten cars in front of it that had stopped for the traffic light. Police Officer, Francis Moyers, of the Montgomery County Police Department, investigated the accident. He stated that he arrived at the scene at approximately 1:20 p.m.; that the weather was cloudy, the road surface was dry and it was daylight; that the vehicles were in the same position they were in at the time of the accident and that upon talking to the appellant he was told that he (appellant) saw the brake lights of the Biggs car when he was about one car length behind it, that he applied his brakes and skidded into the rear of the Biggs vehicle, tie further testified that he found approximately eighteen inches of skid marks left by the appellant’s automobile.

Where the defendant chooses to rely on contributory negligence as a defense he has the burden of proving that the plaintiff was negligent. Judge Horney, speaking for the Court, said in Wheeler v. Katzoff, 242 Md. 431, 435-36, 219 A. 2d 250:

“While contributory negligence on the part of a plaintiff is a defense which a defendant may assert to protect himself from liability, he has the burden of proving such negligence. See Sears v. Baltimore & Ohio R.R., 219 Md. 118, 148 A. 2d 366 (1959); Lindenberg v. Needles, 203 Md. 8, 97 A. 2d 901 (1953); Goldman v. Johnson Motor Lines, Inc., 192 Md. 24, 63 A. 2d 622 (1949). And if the plaintiff’s evidence does not disclose any negligence on his part and the defendant fails to produce evidence warranting a finding of such negligence, the court should either instruct the jury that the plaintiff was not guilty of contributory negligence as a matter of law or not instruct it at all as to such negligence.”

In the Goldman case this Court further said, at page 31:

“Although contributory negligence is ordinarily a question for the jury, unless there be some evidence of negligence of the plaintiff contributing to the happening of the accident beyond a mere scintilla, or evidence from which negligence may be legally inferred by reasonable persons, there is nothing which justifies the submission of plaintiff’s negligence to the jury. Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 170, 125 A. 779; Greer Transp. Co. v. Knight, 157 Md. 528, 539, 146 A. 851; Baltimore Transit Co. v. State, 184 Md. 250, 40 A. 2d 678.”

The appellant relied on the following testimony to support his contention that the question of contributory negligence should have been submitted to the jury. First, Officer Moyers’ report which indicated that the Biggs vehicle was not yet stopped, and second, the appellant’s own testimony that the traffic in front of him came to a sudden stop, that he applied his brakes very forcibly and that his car slid into the rear of the Biggs car. These items of evidence do not rise above the level of a scintilla and were not of sufficient substantiality to show negligence of Mrs. Biggs or her son in the operation of the car.

In the instant case the plaintiff’s evidence does not disclose any negligent act or omission on the part of Mrs. Biggs or the operator of her car from which a rational mind could draw an inference of negligence. Nor does the defendant show any such negligent act or omission. This being the case, the judge properly instructed the jury that as a matter of law there was no contributory negligence for them to consider.

Judgments affirmed, with cost.  