Mondshour v. Moore

• Decision Date: 05 February 1970
• Docket Number: No. 201,201
• Citation: 256 Md. 617,261 A.2d 482
• Parties: Kerry Donald MONDSHOUR, infant, etc., et al., v. Willie Warren MOORE et al.
• Court: Maryland Court of Appeals

Page 617

256 Md. 617

261 A.2d 482

Kerry Donald MONDSHOUR, infant, etc., et al., v. Willie Warren MOORE et al.

No. 201.

Court of Appeals of Maryland.

Feb. 5, 1970.

John C. Evelius, Baltimore (John H. Doud, III, Gallagher, Evelius & Finnerty, Baltimore, on the brief), for appellants.

Hamilton O'Dunne, Baltimore (Patrick A. O'Doherty, Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and BARNES, FINAN, SMITH and DIGGES, JJ.

SMITH, Judge.

The unfortunate set of circumstances producing this case was set in motion when Kerry Donald Mondshour (Kerry), then six years of age, mounted the rear wheel of a stopped Baltimore Transit Company bus to show one of his friends a 'trick'. Kerry was injured, as a result of which suit was filed against the Baltimore Transit Company and its driver. ¹ At the close of the plaintiffs' case the trial judge directed a verdict for the defendants, thus producing this appeal. We shall affirm the action of the trial judge.

Kerry was with a friend at the intersection of Payson Street and Frederick Avenue in Baltimore City. The bus stopped at the intersection. The boys went to the back of the bus and Kerry asked his friend, 'Do you want to see a trick?'. The friend replied, 'I don't care.' Kerry then stuck his foot on the rear wheel and reached up for the window pane. When the bus started he was pulled under the wheel which crushed his pelvis and right leg.

The bus driver was called as a witness by the plaintiff. It was established by his testimony that he knew of Kerry's presence on the corner, but not on the bus. The plaintiffs contended that there was negligence on the part of the Transit Company in that there was no rear view mirror on the right side of the bus, despite frequent 'bus-hopping'. They further contended that there was negligence on the part of the driver in that he failed to ascertain Kerry's location prior to pulling away from the corner. It was pointed out that buses more recently acquired by Baltimore Transit Company than the bus here in question are equipped with right rear view mirrors.

Kerry recognizes the doctrine enunciated by our long series of cases that state, '(T)he owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from wilful or wanton misconduct and entrapment.' Fopma v. Board of County Com'rs, 254 Md. 232, 234, 254 A.2d 351, 352 (1969); Herring v. Christensen, 252 Md. 240, 241, 249 A.2d 718 (1969); Levine v. Miller, 218 Md. 74, 79, 145 A.2d 418 (1958), and cases there cited. He urges, however, that the point here involved 'is, in fact, an undecided part of Maryland law', that '(t)here is no Maryland case in which recovery (has) been denied to a child injured on or by a chattel because he was at that time a trespasser.' Kerry says that the trespass doctrine is 'recourse to an anachronistic aphorism (which) merely obfuscates the true inquiry.' He doesn't in so many words call for application of the attractive nuisance doctrine, but it is apparent that this is the basic direction of his argument.

The problem of children on buses, other motor vehicles, and, in an earlier day, on street cars is not new. It is interesting to note that even in most of those jurisdictions which, unlike Maryland, have adopted the attractive nuisance doctrine that theory of law has been held not applicable to situations similar to this. See, for instance, 7 Am.Jur.2d Automobiles and Highway Traffic, §§ 433-435 (1963); 55 Am.Jur. Urban Transportation, § 202 (1946); Annot. 'Attractive Nuisances-Vehicles', 3 A.L.R.2d 760 at pp. 765, 767 and 792; and 60A C.J.S. Motor Vehicles § 401 (1969).

Kerry in his brief says, '(T)here are cases reported in various jurisdictions, including our own, in which child trespassers injured on or by personal property have been awarded a recovery in damages. In those cases, the trespass rule has proved no bar to recovery. In some it was ignored; in others deemed inapplicable.' The only Maryland case cited by him is Pindell v. Rubenstein, 139 Md. 567, 115 A. 859 (1921). In that case a little boy not quite three years old was walking down a public street holding the hand of his ten-year-old aunt. She testified that she was walking between him and a fence, he being next to the gutter. He apparently was behind her, however. In some fashion a gate in the fence fell on the boy. The aunt apparently did not see it fall. There was testimony as to they defective condition of the gate. There was no direct evidence of any trespass so far as the child was concerned. It is true that there was an attempt to show that the aunt said that the boy climbed on the gate. The aunt denied making any such statement, however, and this Court held the testimony that she had made such statement 'had no effect other than to impeach her credibility by contradicting her, and was not in itself substantive evidence of the facts referred to in the statement attributed to her.' Id. at 580, 115 A. at 864. Thus, Pindell does not put forth the doctrine espoused by Kerry here, nor have we found a Maryland case that does.

As we see it, the issue here involved was disposed of by this Court in State, to Use of Altson v. Baltimore Fidelity Warehouse Co., 176 Md. 341, 4 A.2d 739 (1939). In that case a child had fallen from a raft owned by the defendant and was drowned. The raft was moored in public waters. Therefore, it was in no way a part of the defendant's real property. The raft was claimed to be in full view of a child of tender years. It was alleged that the defendant knew young children were constantly playing on the highways about the intersection and nevertheless 'permitted a dangerous, defective, and unsafe raft or float to remain on the water along its property at the foot of Battery Avenue, unguarded and without notice or warnings of any kind or character to the children to warn them of the danger of the use of the raft'. The further contention was made that the particular child was mentally sub-normal. On those facts there was an attempt made to persuade this Court that a right of action arose on the theory that the doctrine of 'attractive nuisance' was applicable. Judge Parke there said for the Court:

'A raft, which is floating in the harbor at short rope's end from defendant's warehouse, and is inaccessible to any one in the use of the highway on land except by leaving the highway and becoming a trespasser by climbing over the barrier of a stone wall and going upon the raft, is neither such a danger as to be a nuisance, nor an invitation extended for its occupation or use by adult or child. Invitation involves the existence of an intent to induce others to act responsively. The raft was a necessity in the defendant's business. Its utility...