Gatling v. Sampson
| Decision Date | 04 April 1966 |
| Docket Number | No. 275,275 |
| Citation | 218 A.2d 202,242 Md. 173 |
| Parties | William GATLING v. Rodney SAMPSON, a minor, etc. |
| Court | Maryland Court of Appeals |
Marvin H. Smith, Denton (Webb & Travers, Salisbury, on the brief), for appellant.
Robert E. Farnell, 3rd, Cambridge, and George E. Bahen, Jr., Salisbury, for appellee.
Before PRESCOTT, C.J., HAMMOND, MARBURY, BARNES and McWILLIAMS, JJ., and J. DeWEESE CARTER (specially assigned), J.
This appeal involves unfortunate injuries received by a 5-year old child, while playing on, or near, a 'street' in Cambridge, Maryland, on May 12, 1962, when the child and an automobile driven by the appellant, collided.
The question which we must decide is whether the evidence, considered in a light most favorable to the plaintiff, and the proper and legitimate inferences to be drawn therefrom are sufficient to establish a prima facie case of primary negligence on the part of the defendant.
It is difficult to obtain an accurate picture of the scene of the accident from the record: no photographs thereof were made, and the descriptions given by the witnesses are not easily deciphered. Also, it is impossible for an appellate Court to ascertain with accuracy what a witness means when he is testifying from a drawing on a blackboard and he uses such expressions as 'from here to here,' 'it (the blacktop on the road) goes almost completely over on both sides except for the yards that start somewhere about here (indicating)' or 'this pole to here,' without further explanation.
The collision occurred on Cross Street, at about 5:30 p.m. on a clear, dry day in May. Cross Street, lined with small dwellings, is a macadam-surfaced, 2-way street running east and west; its width was not given, but an estimate or inference of about 21 feet was made for the entire right of way for the road. Toward the east from the scene of the accident at a distance of some 425 feet, it is intersected by Pine Street, which runs north and south. Shortly to the west of the scene Schoolhouse Lane comes into Cross Street from the south and dead-ends there. The houses on Cross are constructed very close to the edge of the 'street'; there are no concrete sidewalks or curbs to define the line between the 'street' and the properties upon which the dwellings are built; however fences, in front of at least some of the houses do run between the houses and the 'street.' What we are saying is that the best picture which we are able to obtain from the record is that Cross Street has something less than 20 feet of macadam running east and west. To the north this merges with some 4 to 6 feet of gravel and rocks (in the nature of a shoulder), which, in turn, merges with the property lines along which fences, at least in some spots, have been constructed. In the main, it is impossible to tell when the witnesses refer to the 'street,' whether they are referring to only the macadamized portion thereof or that portion plus the shoulders.
On the northern side of Cross (apparently slightly to the east of its intersection with Schoolhouse Lane) a utility pole is located 'in the blacktop,' or macadam (the distance from the edge of the macadam not being established). This pole was being used by the infant appellee and other children as the home-base for a game of hide-and-go-seek, which they were playing on the northern side of Cross. Just prior to the accident, the appellee, according to his own witnesses, was seen to run out from an alley to the pole.
Only two eye-witnesses to the collision were offered to establish primary negligence: one, Victor Dorsey, a child of 7 years as of the time of the collision; the other, Ruby Jackson, 12, and both were testifying at the trial 3 years thereafter. Dorsey said he was playing 'catches,' ('if he (another youth) catch'd me-tagged me-well, I would be the catcher'), with another youth about 'one-house' away, and gave the following account of how the accident happened:
'Q. Did you actually see the accident happen?
A. Yes, sir.
Q. Well, suppose you tell the ladies and gentlemen of the jury what you saw?
A. I saw Rodney was by the telephone pole. Then he made a step and see if any car was coming.
Q. Were any cars coming?
Q. Yes, sir.
Q. What did Rodney do?
A. He stepped into it and then he stopped.
Q. And what happened then?
A. The car had hit him.
Q. Was he moving or standing still when he was hit?
A. Stand still.
Q. Did he at any time run in the street?
A. No, sir. Q. Now, with whom was he playing?
A. With them children over to the-over in the other yard.
Q. Do you mean the yard on the same side of the street where he was standing?
A. Yes, sir.
Q. Well, were they out in the front yard?
A. Yes, sir.
Q. Now, if you will, step down from there and come up here to this table and illustrate for us * * *
(The witness left the witness stand.)
Q. Now, show us how close Rodney was standing to the telephone pole when the accident happened?
A. About this.
Q. And you say he took a step and stopped when he saw the car?
A. Yes, sir.
Q. Show us how much of a step he took?
(The witness complied.)
Q. And is that where the accident happened?
A. Yes, sir.
This witness said he saw the appellant when he came out of Pine Street some 425 feet to the east; he later, in answer to a question as to how far the appellant's car was away when he first saw it, said that it was 'near about at it (the place of collision)'; still later he again stated he saw appellant's car come out of Pine Street.
Ruby Jackson, the appellee's 'sister' (probably half sister), gave, inter alia, the following testimony Q. Do you remember this accident that people have been talking about here today?
A. Yes.
Q. What was Rodney doing?
A. Rodney was in the alley between two houses playing hide-and-go-seek.
Q. And what he do?
A. He ran out from the alley, and the post that they were talking about was the place that he was supposed to tag.
Q. And when he ran out where did he go?
A. He stopped by the pole and he took a step to see if he saw a car coming.
Q. Did he at any time run into the street?
A. No, sir, he did not.
Q. Now, if you would step down from there and come over here to where I am?
(The witness left the witness stand.)
Q. All right.
Now, show the ladies and gentlemen of the jury-let's say this table is the telephone pole-show us how close Rodney was to the telephone pole at the time of the accident?
A. About like this.
MR. FARNELL: Could we have the record show that she indicated about what-nine inches to a foot?
Q. Was he moving or standing still?
A. Standing still.
Q. You can go back to the stand now, Ruby.
(The witness resumed the witness stand.)
Q. Did you see this car coming?
A. Yes, I did.
Q. Where did it come from?
A. Pine Street.
Q. Now, were there other children playing out on Cross Street at this time?
A. Yes, there were.
Q. And do you remember the color of the car?
A. No, I do not.
Q. Did you see the man get out of the car after the accident?
A. Yes, I did.
Q. Now, Ruby, were there any other cars coming down Cross Street at this time?
A. No, there wasn't.
Q. From either direction.
A. No.
Q. You say these boys were playing hide-and-go-seek?
A. Yes.
Q. How many were there?
A. Round about five or six.
Q. And Victor Dorsey was one of them that was playing hide-and-seek?
A. I don't think he was. I didn't see him out there.
Q. Now, where was your mother when the accident happened?
A. She was back in the kitchen.
Q. Were there any cars parked out there on the street?
A. Yes, there were.
Q. On the same side of the street that the accident happened on?
A. Yes.
Q. How many?
A. I would say round about three.
Q. How ciose were they parked to the scene of the accident?
A. Not too far down.
Q. Well, would they have been within a car's length or two car lengths of the scene of the accident?
A. Yes.
Q. Now, were they parked on the street side of the telephone pole or were they parked on the house side of the pole?
A. They were parked on the house side of the pole.
Q. Now, there were two boys chasing your brother, I believe?
A. Yes, there were.
Q. This little Sampson boy is your brother?
A. Yes, he is.
Q. And you didn't actually see the car coming, did you?
A. Yes, I did.
Q. Well, now Ruby, you remember being up in Mr. Farnell's office on September the 22nd of last year when this gentleman here, Mr. Dowds, took down what you said?
A. Yes, I was.
Q. And do you remember Mr. Lewis from my office being down there and asking you some questions?
A. Yes.
Q. And you remember he asked you this-'Maybe I asked this before, Ruby, but can you tell me again, if you would, did you see his car before he and Rodney came together'-and do you remember Mr. Lewis asking you that question?
A. Yes, sir.
Q. And do you remember what your reply was-you said, Ruby,-'No, I didn't'-you remember that?
A. I can't say I do.
Q. You remember Mr. Lewis then went on and asked you another question and he said-'You didn't notice the car coming'-you remember he asked you that?
A. I can't say.
Q. You remember you gave the reply-'no'?
A. Yes, I did.
Q. Uh-huh. In other words, you didn't notice the car coming?
A. No, I didn't.
Q. Then you didn't see the accident?
A. Yes, I did see the accident.
Q. You saw the accident after it happened?
A. Yes, I did.
Q. Uh-huh. After you saw your brother was hit then you saw the accident?
A. Yes.
Q. But you didn't actually see the car hit your brother?
Q. Well, in other words, Ruby, you have a different idea about the thing today than you had last September-is that what...
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