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Mitchell v. Montgomery County10/2/1991
Finally, Mitchell proffered an instruction on the effect to be given the bus driver's testimony, quoting McSlarrow v. Walker, 56 Md. App. 151, 160, 467 A.2d 196 (1983):
"Where a witness testified that he looked and listened, but did not see or hear a certain object, which, if he had actually looked and listened, he must necessarily have seen and heard, his testimony is not worthy of consideration."
As worded, this instruction was properly rejected, because it could be deemed to direct the jury to disregard the bus driver's testimony in its entirety, if they found he would have seen Mitchell had he looked. Nevertheless, this proffered instruction, even if taken out of context, was directed at an issue not covered by the trial judge's instructions; namely, the effect of the jury's possible conclusion that the bus driver could have or should have seen Mitchell in
enough time to have avoided the collision. Mitchell's accident reconstruction expert testified that the driver should have seen Mitchell, while the bus driver and a neutral witness, Karen Lund, testified that the driver could not have seen Mitchell prior to the impact. Although this was a point for Mitchell's counsel to argue and the jury to decide, Mitchell was entitled to an instruction from which to base his argument that the bus driver was negligent. The proffered instruction, while grossly overstated and taken out of context, did suggest the issue. Although arguably Mitchell failed to preserve this issue, our resolution of the case on other grounds eliminates any need to address this issue more directly, particularly since neither party briefed these precise points.
As a general matter, we also note that several of Mitchell's proposed instructions consisted of quotes of law from cases. While correct as statements of law, these excerpts do not necessarily constitute proper jury instructions. "The reasoning of courts in opinions is not addressed to juries and is not always adapted to use in instructions to them." Flohr v. Coleman, 245 Md. 254, 262, 225 A.2d 868 (1966).
JUDGMENT REVERSED.
CASE REMANDED FOR A NEW TRIAL.
COSTS TO BE PAID BY APPELLEE.
Disposition
JUDGMENT REVERSED. CASE REMANDED FOR A NEW TRIAL. COSTS TO BE PAID BY APPELLEE.
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