Henkelmann v. Metropolitan Life Ins. Co.

• Decision Date: 26 May 1942
• Docket Number: 18,19.
• Citation: 26 A.2d 418,180 Md. 591
• Parties: HENKELMANN v. METROPOLITAN LIFE INS. CO. DOWNS v. HENKELMANN.
• Court: Maryland Court of Appeals

26 A.2d 418

HENKELMANN v. METROPOLITAN LIFE INS. CO.

DOWNS v. HENKELMANN.

180 Md. 591

Nos. 18, 19.

Court of Appeals of Maryland

May 26, 1942

Appeals from Baltimore City Court; Rowland K. Adams, Judge.

Suit by Paul W. Henkelmann,, an infant, by Henry Henkelmann, his father and next friend, against the Metropolitan Life Insurance Company and William R. Downs to recover damages for personal injuries. The jury rendered a verdict for $2,500 against both defendants, and thereafter the court entered a judgment non obstante veredicto in favor of the Metropolitan Life Insurance Company. From the judgment non obstante veredicto, plaintiff appeals, and from the judgment for plaintiff as against him, William R. Downs appeals.

Judgments affirmed.

BOND C.J., dissenting in part.

Deely K. Nice and M. William Adelson, both of Baltimore (Dickerson Nice & Sokol and Max Sokol, all of Baltimore, on the brief) for appellant in No. 18 and the appellee in No. 19.

G. Van Velsor Wolf, of Baltimore (Jesse Slingluff, Jr., and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellee in No. 18.

Daniel S. Sullivan, Jr., of Baltimore (Fred J. Van Slyke, of Baltimore, on the brief), for the appellee in No. 19.

Before BOND, C.J. and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

DELAPLAINE Judge.

This suit was brought in the Baltimore City Court by Paul W. Henkelmann, infant, against the Metropolitan Life Insurance Company and William R. Downs, its agent, to recover damages for injuries received when he was struck by an automobile driven by Downs in the course of his employment.

The accident occurred in Baltimore early on the afternoon of April 12, 1939. The plaintiff, 8 years old at the time of the accident, was struck while on the way to school as he was crossing Franklintown Road at or near the intersection of Boyd Street. Near the corner a bakery truck was parked on the east side of the road, while opposite was an automobile. The boy swore that the truck was parked about six feet south of Boyd Street, and that on stepping from the south pavement of Boyd Street he walked in front of the truck and could not see any car coming. One of his schoolmates testified: 'Mr. Downs' car swung around in front of the truck and hit Paul. He knocked Paul in the middle of Boyd Street near the manhole pipe.' On the contrary, Downs swore that the truck was parked north of Boyd Street, and that as he drove around it he caught a glimpse of a child coming from the right about 35 feet north of the corner, and he applied his brakes and swerved toward the middle of the road. The boy received an injury to the brain, and had a convulsion before he reached the hospital. It is provided by statute in this State that in the event of an accident resulting in injury to any person, the operator of a motor vehicle shall within 24 hours report the details of the accident to the Commissioner of Motor Vehicles. Code, art. 56, sec. 198. Downs admitted on the witness stand that he made no report of the accident to the Commissioner of Motor Vehicles.

The Metropolitan Life Insurance Company prayed for a directed verdict, but the Court submitted the case to the jury against both the company and the agent. The jury rendered a verdict for the sum of $2,500 against both defendants. Subsequently the Court entered a judgment non obstante veredicto in favor of the company.

In appealing from the judgment against him, Downs contended that there was no evidence of negligence legally sufficient to justify submission of the case to the jury. The plaintiff and his schoolmate testified that the accident occurred at the street crossing. The Legislature has enacted that all pedestrians shall have the right of way at street crossings in the cities and towns of the State, except where traffic is controlled at such crossings by traffic officers. Code, art. 56, sec. 235. It is the duty of a driver at a street crossing to be exceedingly vigilant and to have his car under such control, and the speed of the car so reduced, that he may be able to stop or divert its course at the slightest sign of danger in order to avoid collision with pedestrians as far as reasonably possible. If he fails to do so and an accident results, he is liable in damages for the consequences. Merrifield v. C. Hoffberger Co., 147 Md. 134, 127 A. 500; Deford v. Lohmeyer, 147 Md. 472, 128 A. 454; Parr v. Peters, 159 Md. 106, 150 A. 34; Sheer v. Rathje, 174 Md. 79, 197 A. 613; Von Cannon v. Philadelphia Transportation Co., Pa.Super., 25 A.2d 584. It is well established that before a prayer for a directed verdict can be granted, the Court must assume the truth of all the evidence tending to sustain the suit and of all inferences of fact fairly deducible therefrom, even though such evidence may be contradicted in every particular by the opposing evidence in the case. Atholwood Development Co. v. Houston, 179 Md. 441, 19 A.2d 706. Accordingly in an action for injuries to a child struck by an automobile while crossing a street, contradictory testimony on the question whether he was crossing at an intersection or between intersections justifies refusal of a directed verdict. York Ice Machinery Corporation v. Sachs, 167 Md. 113, 173 A. 240.

It is a statutory crime in Maryland for any person to operate a motor vehicle upon any public highway of this State recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway. Code, art. 56, sec. 196. Upon approaching a crossing of intersecting highways, a driver shall have the motor vehicle under control and shall reduce its speed to a reasonable and proper rate. Code, art. 56, sec. 197. Even between intersections, motorists are required to keep a lookout for children who may suddenly come upon the road in front of them. If a child darts in front of an automobile when the driver is obeying the rules of the road and driving at a reasonable rate of speed, and the driver cannot by the exercise of due diligence avoid striking the child, the driver is not liable for resulting injuries. Sorsby v. Benninghoven, 82 Or. 345, 161 P. 251. But if a driver is running his car at an unreasonable speed, he cannot escape liability for striking a child by saying that the child ran in front of the automobile so suddenly that the accident was then unavoidable. Morrison v. Flowers, 308 Ill. 189, 139 N.E. 10. The record shows that Franklintown Road is only about 18 or 20 feet wide, and it is very dangerous to pass when motor vehicles are parked on both sides of the road. Downs admitted at the trial: 'It is awfully dangerous getting through. You just have room of about a foot on each side when you go between.' Yet he readily admitted that he drove the car through the narrow space between the truck and the automobile near the street intersection at the speed of between 15 and 20 miles per hour. The evidence was ample to warrant the conclusion reached by the jury that the driver did not exercise the degree of care required of a driver in the light of the circumstances confronting him, having regard to the width, traffic and use of the highway.

It was argued that the schoolmate's testimony that Downs' car swerved around the bakery truck and struck the plaintiff is legally incredible in view of his statement that the plaintiff was standing only a foot in front of the truck. The record shows, however, that when the schoolmate was asked whether he was certain that the plaintiff was standing only about a foot in front of the truck, he replied: 'Not quite sure, but the car had to swing in. As he swung in, he hit Paul.' An accident of this nature happens so suddenly that it is sometimes difficult for a witness, especially a child, to testify with precision as to distance. The schoolmate maintained that the plaintiff was standing in a place of safety. Downs admitted that he swerved around the truck and that the plaintiff had not walked into the street more than three feet. We do not believe the theory of incredibility can be invoked in this case.

The further contention that the plaintiff was guilty of contributory negligence as a matter of law can also not be sustained. To justify withdrawal of a case from the jury on the ground of contributory negligence, the evidence must show some act so decisively negligent as to leave no room for difference of opinion thereon by reasonable minds. A child of tender years is not held to the same measure and kind of care required of a reasonably prudent adult, but only to that degree of care which children of the same age and intelligence would be expected to exercise under similar circumstances. Bozman v. State, to Use of Cronhardt, 177 Md. 151, 9 A.2d 60. For example, in a case where a boy 11 years old, before starting to cross a street, looked in the direction from which the defendant's automobile was approaching but did not see it, probably because the view was obstructed by a telephone pole, the Court held that it was not contributory negligence as a matter of law to fail to look again after passing the pole. Wickman v. Lundy, 120 Wash. 69, 206 P. 842. In the Court below a witness, who swore that he had been standing for about one hour on the corner of Franklintown Road and Hollins Street while waiting for a man to make some bets for him at a bookmaking establishment, swore that he saw from that distance a boy push the plaintiff into Downs' car. It is generally held that when evidence is conflicting, so that the credibility of the witnesses is of paramount importance, the issue of contributory negligence of a pedestrian at a street crossing is a question for the jury. American Express Co. v State, to Use of Denowitch, 132 Md. 72, 103 A. 96; Riley v. State, 140 Md. 137, 117 A. 237; ...