Ottenheimer v. Molohan
Decision Date | 20 June 1924 |
Docket Number | 35. |
Citation | 126 A. 97,146 Md. 175 |
Parties | OTTENHEIMER v. MOLOHAN. |
Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Carroll T. Bond Judge.
"To be officially reported."
Action by Harold S. Molohan, by his father and next friend, M. C Molohan, against Bernard M. Ottenheimer. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before PATTISON, URNER, ADKINS, OFFUTT, and DIGGES, JJ.
L Wethered Barroll, of Baltimore (William L. Marbury, of Baltimore, on the brief), for appellant.
Joseph Addison, of Baltimore (T. Howard Duckett, of Washington, D. C., on the brief), for appellee.
On August 9, 1921, Harold S. Molohan, aged six and a half years, the infant plaintiff in this case, was struck by the automobile of Bernard M. Ottenheimer, the defendant, on the Washington-Baltimore State Road, near Cottage City, in Prince George's county, Md.
Suit was brought by the infant by his father and next friend against Ottenheimer, and a verdict rendered by a jury in favor of plaintiff for $950, on which judgment was entered. This appeal is from that judgment.
The only bill of exception is to the ruling of the trial court on the prayers.
The witness further said he thought, when he went back, the boy's body "was lying on the concrete road; maybe his arm or his head or something might be on the cinders, but most of him was lying on the cement road;" that witness traveled 3 or 4 lengths of the machine after he threw his brakes before he stopped.
He further testified that, at the time of the accident, he had been driving five years; that he goes to Washington two or three times a week, generally over that same road.
On cross-examination witness said before he approached Cottage City he knew he was coming to a thickly settled community. He explained that, when he said he first saw the boy when he was 5 or 6 feet in front of him, he was referring to the time of the accident; before that he saw the two boys playing.
"They were out in the cinder path playing before I got there, I don't know what, pulling and jerking with one another, and one boy darted away in front of the machine."
His estimate of the distance he went after the accident was from 40 to 60 feet; and of the distance the boys were from him when he saw them playing, 10 or 15 feet.
Joseph F. Neville testified that they were going along at a very moderate rate of speed; a car was ahead of them, and there was no other traffic on the road; the two boys were on the cinder path; witness was on the right side of the car and saw the boys; "the little one darted out like a shot out of a gun"; witness jumped and said, "My God; you will hit that boy!"
Witness further testified that the car was on the asphalt, "not on the shoulder at all, but in the road proper"; that witness supposes the car went 40 or 50 feet after it struck the boy; witness was so certain they were not on the concrete shoulder "because there was no machine, only one previous to us, and nothing was in the way, and there was no necessity of Mr. Ottenheimer driving that close, and I know he is an exceptionally careful driver." The car in front of them was about 30 feet ahead. Witness saw the children before the first car passed them; "one standing outside and the other standing in the cinder path."
There was no witness for the plaintiff who saw the collision except the injured boy, who was not examined in regard to it.
Richard H. Mansfield, a detective sergeant of the Washington Police Department, heard "a loud screeching of brakes," and, looking out his window, saw the machine pulling up in front of his house. He looked up the road and saw the child lying on the road about 100 to 125 feet from the machine. Witness asked Mr. Ottenheimer, on the way to the hospital, how the accident happened, and he said he didn't see the child. Ottenheimer denied that he made such a statement. Mansfield further testified that the road from the place of the accident towards Washington is straight for the distance of an eighth of a mile; that the road at Cottage City was at the time of the accident very much built up; that the boy's head was lying along the outer edge of the coping.
Richard A. Shreeve, Jr., testified that he owned the filling station in front of which the accident happened; that he was sitting in front of his place reading, when he heard a lick back of him, and, turning around, saw the machine going down the road and the boy lying on the side of the road; that the machine stopped between 100 and 120 feet from the boy; that the "brakes were screeching awful loud"; that the boy was lying alongside of the road, partly on the cinders, his head was on the shoulder, or partly on the shoulder; that he saw the boy before the accident.
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