UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANA SHERWOOD, An infant, by
Ethel Sherwood, Mother and Next
Friend; ETHEL SHERWOOD,
Plaintiffs-Appellants,
                                                                  No. 96-2052
v.

MICHAEL ELWOOD ARMSTRONG,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-95-850-H)

Submitted: September 9, 1997

Decided: September 26, 1997

Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Leonard A. Orman, Baltimore, Maryland, for Appellants. Kathleen
M. McDonald, KERR MCDONALD, L.L.P., Baltimore, Maryland,
for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Ethel and Dana Sherwood filed a complaint in the dis-
trict court seeking damages on behalf of Dana Sherwood, who was a
minor at that time, for injuries Dana Sherwood received in an automo-
bile accident in Ocean City, Maryland, and for expenses that Ethel
Sherwood incurred on Dana's behalf and for loss of her daughter's
services. The case proceeded to trial before a jury. At the close of the
evidence, the Sherwoods moved for judgment as a matter of law
which the district court denied. After the jury returned a verdict in
favor of the Defendant, the Sherwoods moved for a new trial and
judgment notwithstanding the verdict. The district judge treated the
motion as a motion for a new trial and a motion for judgment as a
matter of law. The district court denied the motions and the Sher-
woods timely noted their appeal.

On appeal, the Sherwoods argue that the district court erred by
denying their motions for judgment as a matter of law and committed
error in giving one jury instruction and by failing to give another
instruction requested by the Sherwoods. Finding no error, we affirm.

The Sherwoods filed this suit as a result of a motor vehicle accident
which occurred in Ocean City, Maryland, on August 10, 1992. Dana
Sherwood, a minor at the time, was a passenger in a car operated by
Adam Geary. Defendant Michael Armstrong was proceeding north on
Baltimore Avenue in his van around 11:00 p.m. The Geary vehicle
struck Armstrong's vehicle when he was making a left hand turn at
an intersection.

Dana Sherwood and Michael Armstrong were the only witnesses
at trial to testify regarding the circumstances leading to the accident.
Sherwood did not remember many of the details leading to the actual
crash; those details she could remember were the result of someone

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else refreshing her memory. The critical issue as to liability was
whether the headlights of Geary's vehicle were on at the time of the
accident. Dana Sherwood testified that she recalled that Geary turned
on his headlights in the parking lot he was parked in before heading
onto Baltimore Avenue. Armstrong testified that before he made the
left turn he slowed to a near stop, signaled, and looked for oncoming
traffic. Armstrong testified that he did not see any oncoming traffic,
that although there were streetlights on Baltimore Avenue, they were
dim and the lighting was poor. He further testified that he did not
know what had hit him when the Geary vehicle struck his van.

In reviewing the denial of a motion for judgment as a matter of
law, this court must determine whether a reasonable jury, based upon
the evidence presented, could have found the verdict. See Trimed, Inc.
v. Sherwood Medical Co., 977 F.2d 885, 888 (4th Cir. 1992). To the
extent that the Sherwoods assign error to the trial court's application
or interpretation of Maryland law, the standard of review is de novo.
Id. at 890.

The Sherwoods first argue that the district court should have
granted their motions for judgment as a matter of law because Mary-
land law presumes negligence, or that a portion of testimony is
untrue, when a person testifies that he looked but did not see some-
thing which was in plain sight. See Johnson v. Dortch, 342 A.2d 326,
333 (Md. App. 1975). The Sherwoods rely upon Dietrich v. Canton
R.R., 151 A.2d 163 (Md. 1959), to argue that Armstrong's testimony
that he looked north but did not see the Geary vehicle is a negative
inference which cannot overcome Dana Sherwood's positive testi-
mony that Geary turned on his headlights before proceeding onto Bal-
timore Avenue. Dietrich and Johnson are inapplicable to this case
because it was not established at trial that no reasonable jury could
do other than find that Armstrong was negligent.

The facts in this case are similar to those in Hiltgen v. Sumrall, 47
F.3d 695 (5th Cir. 1995). In that case, the driver of a tractor trailer
had testified that he did not turn off his rear lights. The plaintiff's wit-
nesses testified that they did not see the tractor trailer's lights prior
to the accident although they were in a position to see the lights had
they been on. The court concluded that the jury was free to consider

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the driver's interest in the outcome of the litigation and his credibility
in general. See Hiltgen, 47 F.3d at 700.

The jury's verdict essentially boiled down to a determination of
credibility of the witnesses. If the jury fully credited Armstrong's tes-
timony, the jury would find that Armstrong was not negligent. The
jury was entitled to infer from Armstrong's testimony that he did not
see the Geary vehicle because its lights were not turned on. The jury
was likewise entitled to give little or no credit to Dana Sherwood's
testimony regarding the accident. Dana Sherwood was fifteen years
of age at the time, and the trial was held nearly three years after the
accident. Determinations as to the credibility of witnesses and the
weight to be accorded evidence are matters within the province of the
jury. See Trimed, 977 F.2d at 888; McNairn v. Sullivan, 929 F.2d 974,
978 (4th Cir. 1991). We find that the issue of whether Geary's auto-
mobile had its headlights on was in dispute and the question properly
went to the jury and the district court properly denied the motions for
judgment as a matter of law on this issue.

The Sherwoods also argue that the motions for judgment as a mat-
ter of law should have been granted because Armstrong allegedly vio-
lated Maryland's "left turn" statute, Md. Code Ann. Transp. II § 21-
402(a) (Repl. Vol. 1992). The district court properly instructed the
jury that if it found that Armstrong violated the left turn statute, it
might consider such violation as evidence of negligence. See Fisher
v. O'Connor's, Inc., 452 A.2d 1313, 1315 (Md. App. 1982). The
Sherwoods specifically requested that this instruction be given.
Whether a party complied with a statute and whether that failure
caused a plaintiff's injuries are questions for the jury. See Ford v.
Bradford, 132 A.2d 488, 492 (Md. 1957). Therefore, the district court
properly refused to grant the Sherwoods's motion for judgment as a
matter of law on this ground.

The Sherwoods assign as error two jury instruction issues. The for-
mulation of jury instructions is reviewed for an abuse of discretion.
See Trimed, 977 F.2d at 890. If the propriety of giving the instruction
is a matter of state law, it is reviewed de novo. Id. First the Sher-
woods argue that the district court erred by instructing the jury that
"[t]he mere happening of an accident . . . does not in itself constitute
negligence." The two cases that the Sherwoods rely upon do not hold

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that the mere happening instruction is improper in a negligence case
such as the one at issue here. In Ristaino v. Flannery, 564 A.2d 790
(Md. 1989), the Court of Appeals of Maryland held that when the pri-
mary facts are in dispute and the availability of the inference of negli-
gence is also in dispute, a mere happening instruction is proper. See
Ristaino, 564 A.2d at 794-95. In Kennelly v. Burgess, 654 A.2d 1335
(Md. 1995), the Court of Appeals of Maryland held that while the
mere happening instruction was inappropriate in that particular medi-
cal malpractice case, the instruction may be properly given in negli-
gence cases although the instruction may "elucidate the obvious" and
be redundant. See Kennelly, 654 A.2d at 1341-42. We find that the
district court did not err in giving the mere happening instruction.

Finally, the Sherwoods argue that the district court erred by failing
to include the following jury instruction: "[t]he Court instructs the
jury that when a person testifies that he looked but did not see that
which was or should have been in plain sight, it necessarily follows
either that some part of his or her testimony is untrue or that the per-
son was negligently inattentive." The Sherwoods rely upon Johnson
v. Dortch as the legal foundation for the instruction. Johnson does not
involve a sufficiently similar factual situation to this case. Further, as
discussed above, it was for the jury to decide whether Geary's vehicle
was in plain sight of Armstrong. We find that the district court prop-
erly declined to give the plain sight instruction as requested by the
Sherwoods.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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