Levine v. Beebe

• Decision Date: 15 April 1965
• Docket Number: No. 235,235
• Citation: 209 A.2d 67,238 Md. 365
• Parties: Sol LEVINE v. Diane BEEBE, etc., et al.
• Court: Maryland Court of Appeals

Page 365

238 Md. 365

209 A.2d 67

Sol LEVINE v. Diane BEEBE, etc., et al.

No. 235.

Court of Appeals of Maryland.

April 15, 1965.

Thomas D. Washburne, Baltimore, for appellant.

Samuel D. Hill, Baltimore (Dorothy T. Jackson, Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellees.

Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

MARBURY, Judge.

This is an appeal from judgments entered upon verdicts of a jury in favor of the plaintiffs Diane Beebe and Wesley Beebe, her father, in the Circuit Court for Baltimore County, in the respective sums of $2500 and $750. Sol Levine, defendant below, appealed.

At approximately 7:45 a. m. on November 11, 1960, a clear and dry day, appellant was driving his 1959 Chevrolet sedan in a southerly direction in the right lane of Orems Road located in the Essex area of Baltimore County. This road in the area of the accident was a level, macadam, two lane thoroughfare, 26 feet wide. It proceeded approximately north and south through a residential area with houses on both sides, but without sidewalks or curbs. Levine who had traveled this road many times and knew that children customarily waited along the road to board school buses, was driving his automobile within the posted speed limit of thirty miles per hour. He first saw Diane, six years of age, and her brother, Billy, a year older, standing in their graveled driveway near the west edge of Orems Road about 200 feet away as he rounded a curve. The school bus usually picked up the children across the road from their driveway or at the corner of Orems Road and Entrance Road. Appellant saw the school bus moving west on Entrance Road which enters Orems Road from the east approximately 100 to 150 feet south of the spot where the children were standing. Diane saw the school bus and started across the road. Billy saw the Levine car and called to her but it was too late because she had already started to cross the road. Appellant immediately applied his brakes and his car continued forward in a straight line striking Diane with the left front side of the car's grille and bumper. The vehicle came to a stop about 28 feet from the point of impact.

The school bus driver testified that he followed his usual route, having approached Orems Road from the east on Entrance Road. He stopped to see if traffic was coming from his left, looked to his right, saw Diane in the road and a car 'coming at her with the front down like the driver already had applied his brakes.' He saw the car hit her, knock her out of her shoes, roll her down the street 40 to 50 feet and the car stop 25 to 30 feet after the impact. Officer Messina, who investigated the accident, with Officer Krawczyk, testified primarily from the investigation records made by the latter. He located the point of impact from a plat, made by Officer Krawczyk, to be 118 feet north of Entrance Road. This diagram showed 46 feet of skid marks, 28 feet of which were after the point of impact, and that Diane was thrown 58 feet. It also placed the bus on Entrance Road. A police photograph admitted in evidence showed damage to the left front hood of appellant's car. As a result of the accident Diane suffered lacerations of the forehead and right eyelid, abrasions of both knees and the right buttock, together with assorted contusions.

The appellant first contends that the trial court should have granted him a directed verdict because he was not negligent and the infant appellee was guilty of contributory negligence as a matter of law. We do not agree. This case properly went to the jury on the question of appellant's primary negligence because of his admission that he was aware of the presence of the children near the roadside at a considerable distance from the point of the accident, had knowledge that a school bus was near the location on Entrance Road, saw that the children were looking toward the bus and should have realized the probability that they would be required to cross the highway for the purpose of boarding the bus. His duty was that of ordinary care under the circumstances but required more caution than if he had been approaching an adult standing beside the road. Although Diane was not on the road when he first saw her, she was standing near the road and the bus was coming, so that the potential aspect of her crossing the road in his path was very real. A driver must accommodate his movement to children in potential as well as immediate peril. Dorough v. Lockman, 224 Md. 168, 167 A.2d 129. Appellant admittedly did not decrease his speed or...