Miller v. Graff, 57

• Citation: 196 Md. 609,78 A.2d 220
• Decision Date: 10 January 1951
• Docket Number: No. 57,57
• Parties: MILLER v. GRAFF et al. (two cases).
• Court: Court of Appeals of Maryland

Page 609

196 Md. 609

78 A.2d 220

MILLER v. GRAFF et al. (two cases).

No. 57.

Court of Appeals of Maryland.

Jan. 10, 1951.

Daniel B. Chambers, Jr. and Malcolm J. Coan, both of Baltimore (Francis T. Peach, Towson, on the brief), for appellants.

John Grason Turnbull, Towson (Walter B. Siwinski, Baltimore, on the brief), for appellees.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

This record contains two cases, which arose out of an accident wherein Leola Miller, age 4, was knocked down and injured by a taxicab in Dundalk on February 17, 1948. The accident happened on Dunmanway about 4:30 p. m., when the little girl, who had been to the nursery school at Dunmanway and Liberty Parkway, was walking home with her mother. When she was about 125 feet east of Liberty Parkway, she ran from the south sidewalk of Dunmanway into the street and was knocked down on the north side of the street by a westbound taxicab owned by Theodore Graff and operated by his employee, Harold Leroy Hall. In the first case the child claims damages for personal injuries sustained as the result of alleged negligence of the owner of the taxicab and his driver. Her declaration was filed for her by her father, Lee Miller, her next friend. In the second case her father claims medical and hospital expenses and other consequential damages. The cases were tried together before a jury.

Officer Gustav Zucker, the first witness for plaintiffs, testified that he received a call to come to the scene of the accident at 4:35 p. m. When he arrived shortly afterwards, the taxicab was not there, the driver having taken the child and her mother to a hospital in Baltimore; but he was told by a resident of the neighborhood where the collision occurred. There, about 125 feet east of Liberty Parkway, he found skid marks about seven or eight feet from the north curb. He also saw blood spots along the side of the skid marks. These spots were about seven feet from the north curb. He was asked by the judge whether there was any way to tell what car had made the skid marks. He replied: 'No, sir, I could not tell.' In view of that reply, the judge ordered the testimony as to the skid marks stricken out. He gave as his reason for the ruling that they had not been sufficiently identified to show that they had been made by the taxicab.

It is accepted rule of evidence that a witness can testify as to tire marks made by a motor vehicle on a roadway where he had an opportunity to observe them before any change in them had taken place. The testimony of a witness as to tire marks should not be admitted unless it can be reasonably inferred from the time of the observation, or from the relative locations of the marks and the car, or from other convincing facts, that the marks had actually been made by the car. Williams v. Graff, Md., 71 A.2d 450. In the case at bar the taxicab had been driven away from the scene of the accident before the investigating officer arrived. The testimony of a witness as to tire marks is not rendered inadmissible by the fact that the automobile which had made them had been moved before the witness arrived. In view of the fact that the witness arrived shortly after the accident and saw the skid marks where it happened, and also in view of the close proximity of blood spots to the skid marks, indicating where the child had been wounded, there is reasonable ground for the inference that the skid marks had been made by the taxicab. We, therefore, find that the officer's testimony was admissible.

The child's mother gave the following account of the accident: 'Leola was running ahead of me a little ways and she just turned and started across the street, so I started screaming at her to come back. I had seen the cab coming. * * * Well, she got almost to the other side of the street and I kept calling to her to come back, come back, and she turned around and had started to come back, and he applied his brakes when he hit her, * * * and she had her hand up like this, and the bumper on the front caught her and threw her up in the air, and she kept spinning around in the air, and she landed about the middle of the car.'

George F. Burke, and employee of Bethlehem Steel Company at Sparrows Point, who was the only disinterested eyewitness, testified that as he was walking across Liberty Parkway, he saw the child in the street and the oncoming car. Seeing the child's peril, he threw his hand up to warn the driver to stop. The driver put on his brakes, but was unable to avert the accident.

The trial judge said that the testimony did not give rise to any right of action, and accordingly directed a verdict in each case in favor of defendants. Plaintiffs have appealed here from the judgments entered thereon.

The main question on this appeal is whether the evidence was legally sufficient to warrant submission of the cases to the jury. The duty which a motorist owes to pedestrians is ordinary care and caution in such amount as the particular situation demands. Havermale v. Houck, 122 Md. 82, 89, 89 A. 314. It is contended that the taxicab was being driven in the westbound lane, and that no negligence can be inferred from excessive speed, since the accident did not happen in a street intersection. While it is generally true that a motorist must exercise greater vigilance when approaching a street intersection that when driving between intersections, yet even between intersections a motorist must keep a lookout for any children who may suddenly come out into the street in front of him. As we said in Heffner v. Admiral Taxi Service, Md., 77 A.2d 127, the public highways are for the use of everybody, and no one is barred from their use by age or physical condition. If a child darts out in front of an approaching automobile when the driver is going at a reasonable rate of speed and obeying the rules of the road, so that even with the exercise of due diligence he is unable to avoid running into the child, he is not liable for any injuries the child may sustain; but if the driver is going at an excessive speed, he cannot escape liability by saying that the child ran in front of the car so suddenly that the accident was unavoidable. Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591, 596, 26 A.2d 418.

Motorists should bear in mind that young children lack judgment and caution, and that in crossing a street they are often reckless by adult standards. Such carelessness of children should serve as a warning to...