Olney v. Carmichael, 120

• Decision Date: 17 April 1953
• Docket Number: No. 120,120
• Citation: 96 A.2d 37,202 Md. 226
• Parties: OLNEY v. CARMICHAEL et al.
• Court: Maryland Court of Appeals

Page 226

202 Md. 226

96 A.2d 37

OLNEY v. CARMICHAEL et al.

No. 120.

Court of Appeals of Maryland.

April 17, 1953.

Max R. Israelson, Baltimore (Samuel S. Levin and Melvin S. Silberg, Baltimore, on the brief), for appellants.

Max Sokol, Baltimore (Dickerson, Nice & Sokol, Melvin J. Sykes, Deeley K. Nice and Emanuel H. Horn, Baltimore, on the brief), for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, and HAMMOND, JJ.

HAMMOND, Judge.

Melvin Olney, a three year old boy, and Howard Olney, his father, sued in separate actions the Checket Columbia Company, owned of an automobile, and Arthur C. Carmichael, its employee and the driver, for damages resulting to them, respectively, from an accident in which the automobile struck the child. At the conclusion of the plaintiff's case (the two cases were tried together), the Court instructed the jury, on motion of the defendants, that there was no evidence of any primary negligence and that they must find a verdict in favor of the defendant in each case. From the judgment which followed, the plaintiffs appealed to this Court.

As we must, in passing on an instructed verdict for the defendant, we have resolved all conflicts in the evidence of the appellants and assumed the truth of all evidence and all inferences which may naturally and legitimately be deduced from that evidence, which tend to support their right to recovery. We conclude that they have failed to prove any negligent act or omission of the appellees responsible for injury to either appellant. This being so, the Court below was correct in holding that on appellants' own showing there was no rational ground upon which a verdict for them could be based. Eisenhower v. Baltimore Transit Co., 190 Md. 528, 59 A.2d 313.

The accident occurred on March 5, 1951 about 12:50 P.M. on a bright, clear day on Aisquith Street south of Low Street in Baltimore City. The automobile was being driven south on Aisquith Street at a speed of approximately twenty miles an hour about two feet east of a row of parked cars along the west side of Aisquith Street. The child was struck by the right front of the car. The driver did not see the child before the impact and stopped the car immediately after he felt the bump. When he got out, he saw the child lying about a foot from the right rear of the car.

Edward Madden, the passenger sitting in the front seat, gave a statement to the investigating Police Officer, which was read in evidence by the Officer, called as plaintiffs' witness, in which he said: 'We made a right turn to go south on Aisquith Street and had went just a short distance when I saw the child run out into the street after a ball. He ran from between parked cars and we were about ten feet from him. I yelled to Mike, the driver, to look out, because I didn't think Mike could possibly see him. Mike was not going fast at the time, about twenty miles an hour. The way that those cars were parked I don't see how Mike could have seen the boy'.

The appellants' theory of the negligence of the appellees is that the child did not come from between the parked cars on the west side of Aisquith Street, but rather, crossed from the east to the west as the last of a group of children, who made that crossing. The appellants argue that Carmichael, the driver of the car, had an unobstructed view sixty or seventy feet ahead and about ninety feet to the east side of Aisquith Street, which was to his left as he drove south. They say that as a matter of law, it cannot be said that the appellees were free from negligence, (a) in failing to see the children playing there, and (b) being thus chargeable with awareness of their presence, not to realize and guard against their well-known habit of starting, turning, or stopping suddenly. In support of this argument, they rely on 2 Restatement of the Law of Torts, Chapter 12, Section 290, page 781; Stafford v. Zake, 179 Md. 460, 20 A.2d 144; and Miller v. Graff, Md., 78 A.2d 220, 223, where the Court said: '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 motorists to reduce their speed and to use caution whenever they see children in the street.'

There can be no quarrel with the validity of the theory of the appellants. The difficulty is that, striving as valiantly as they did, they were unable to produce any evidence which showed, or permitted any rational inference, that the accident happened as they suggest that it did. They produced two witnesses in an effort to support their position. The first witness, Rogers Leverette, had been sitting on a bench in Jefferson Court, across the street from where the accident happened, watching his children play. He had gotten up and walked to one of the entrances to the yard of this housing project. He had seen the children playing, then he realized that they had disappeared. A few minutes later, he heard the screech of brakes, heard the bump, and looked and saw the child lying at the rear of the car. He remembered the children playing around there, that Melvin Olney was among them, and that then they disappeared. The appellants at this point told the Court that they had been taken by surprise by the testimony of the witness, and that they had taken a conflicting statement from him before the trial. There was then read to him questions and answers from the statement. The witness agreed that he had said: 'All the children except one got across the street safely, * * *' and that 'The last one was Melvin Olney and that he got within a step or two to a point between two cars parked on the west side of Aisquith Street'. The witness further agreed that he had said in the statement that the child was three or four feet from where he was lying after the accident, 'when I saw an automobile that was coming south on Aisquith Street. My attention was called to the automobile when I heard a loud screech * * *.' The witness at no time said he saw the automobile strike the child. The Court ruled that the appellants could ask the witness whether what he said in the statement was true or what he said on the stand was true. A qualification by the Court was that he could not be asked whether the entire statement was true but must be asked separately as to each conflicting statement and appellants' counsel agreed that this was right. After this ruling, the witness was never asked whether the statements which have been quoted above were or were not true. If, however, we assume for the purpose of the case, that he would have testified that they were true, if asked, later, in his testimony, Leverette said that what he had said from the stand before the statement was produced was the truth, the whole truth, and nothing but the truth, and that 'I wasn't watching the boy in the accident, before I heard the screech of brakes'. The witness said further that he had not seen anyone in the street at the time of the accident. When he was asked on redirect by the appellants, he said that he didn't remember when the children left the entrance, but about five minutes or perhaps less, afterwards, he heard the screech of the brakes. He was asked again if he had been the automobile before the accident and he said definitely that he had not. At one point in the effort of appellants to examine Leverette on redirect, the Court below observed: 'Well, you mean he might give us another...