State for Use of Taylor v. Barlly

• Decision Date: 24 March 1958
• Docket Number: No. 167,167
• Citation: 216 Md. 94,140 A.2d 173
• Parties: STATE of Maryland, for the Use of Ellena TAYLOR, etc., et al. v. Martin John BARLLY.
• Court: Maryland Court of Appeals

Page 94

216 Md. 94

140 A.2d 173

STATE of Maryland, for the Use of Ellena TAYLOR, etc., et al.

v.

Martin John BARLLY.

No. 167.

Court of Appeals of Maryland.

March 24, 1958.

W. Albert Menchine, Towson (Sidney Blum, Baltimore, on the brief), for appellants.

W. Lee Harrison, Towson, for Appellee.

Before BRUNE, C. J., HENDERSON, PRESCOTT and HORNEY, JJ., and J. DE WEESE CARTER, J., Specially Assigned.

PRESCOTT, Judge.

A jury in the Circuit Court for Baltimore County rendered verdicts in favor of the defendant in two cases that were tried together; one was an action under Lord Campbell's Act for negligence causing the death of Keith Taylor, aged 5 years and 10 months, and the other was by the administratrix of the deceased child. From judgments entered upon these verdicts, the plaintiffs-below have appealed.

In the early afternoon of March 10, 1955, a clear, sunny day, the appellee was operating his automobile in a westerly direction on Edmondson Avenue, in Baltimore. At the location of the accident, this avenue is 60 feet, 3 inches wide, and is traversed by two street-car tracks. The two tracks are 6 feet apart and the distance between the individual rails of each track is 5 feet, 10 inches. The distance from the south curb of Edmondson Avenue to the southernmost street-car rail and from the north curb to the northernmost rail is, in each case, a little over 21 feet. A playground entrance on the north side of said avenue is 98 feet west from the west curb of Evergreen Avenue at its intersection with Edmondson Avenue. The deceased child, with other children, was on the south side of Edmondson Avenue, and, intending to cross the avenue to the playground, they walked from said south side to the southern car track, when the deceased started to run for the playground entrance. At that time, the appellee, who had his wife as a passenger, was operating his automobile on Edmondson Avenue in a westerly direction a few inches to the north of the northernmost street-car rail. The car collided with the child, who died as a result of the injuries received. The plaintiffs' witness, Turner, stated the left front bumper of the appellees' automobile struck the child, while the appellee and his wife testified the child came into the left side of the car.

I

The appellants first contend that the trial court's charge was incomplete with respect to the duty owed by the defendant to the plaintiffs' decedent under the circumstances of this case. They argue that if the death had been that of an adult, the instructions on primary negligence probably were proper; but, in the instant case, the charge wholly ignored the well-established legal principle that the caution owed by an operator of a motor vehicle to a child of tender years is greater than that owed to an adult, whose age, experience and training reasonable can be expected to be utilized to avoid danger.

In this regard, there was testimony, although some of it was disputed, from which the jury could have found the following facts; when the deceased boy had walked from the curb to the south street-car track and started to run toward the playground, the appellee was some 140 feet to the east, operating his car between 30 and 35 miles per hour in a 25 mile zone; the street was straight, with no moving traffic thereon; and, without at anytime observing the child or slowing his car, the appellee struck the child with the front of his car when the child was just a few inches north of the northern car track.

The court instructed the jury concerning the burden of proof, defined negligence, and then stated:

'that if you believe from the evidence that the defendant, Mr. Barlly, was operating his automobile as an ordinarily prudent person would operate an automobile under the same or similar circumstances as existed in this case, and if you believe from the evidence that the accident complained of was not due to any failure on the part of the defendant, Mr. Barlly, to use reasonable and ordinary care as any other reasonable person would have used in the operation of his automobile, then, of course, your verdict should be for the defendant, Mr. Barlly.'

As an abstract statement of law, there is little, if anything, to be found wrong with this quotation. However, the court had not mentioned the fact that the deceased was a child of tender years, and did not do so until he instructed on contributory negligence. The judge did not inform the jury that it was the defendant's duty, even between intersections, to keep a proper lookout for children who may suddenly come out into the street in front of him; nor that the defendant was required by law to recognize that children of tender years do not use the same degree of care and caution for their own safety as do adults. The appellants were entitled to have the jury instructed upon their theory of the case. The deceased was under six years of age. The law requires greater caution from the operator of a motor vehicle who observes a child in the middle of the street than one who sees an adult; and, if his vision were unobscured for 100 feet, or more, it places a duty upon him to see the child. From the above evidence the jury, if they so desired, were at liberty to conclude that the appellee, having an unobstructed view for some distance, could have avoided striking the child, if he had been driving at a rate of speed that was reasonable under the circumstances and had used proper care to look out for the boy. Miller v. Graff, 196 Md. 609, 616, 619, 78 A.2d 220; Ottenheimer v. Molohan, 146 Md. 175, 184, 185, 126 A. 97; 2 Rest., Torts, sec. 290(j); cf. 30 A.L.R.2d p. 9, p. 46 sec. 12, p. 97 sec. 89, p. 91 sec. 83; Mahan v. State, 172 Md. 373, 385, 191 A. 575; Stafford v. Zake, 179 Md. 460, 463, 20 A.2d 144; Lenehan v. Nicholson, 214 Md. 414, 135 A.2d 447. Of course, we are not attempting to evaluate the evidence in this case and hold that the defendant was negligent, but are pointing out that there was evidence from which the jury could have found negligence on his part if they were so inclined, after being properly instructed. However, the trial judge failed to instruct them, except in very general terms which probably were not fully understood, that they were at liberty to find negligence on the defendant's part if they found as facts the matters above enumerated.

This Court has held that we cannot put the 'trial judge in a straight jacket, and prescribe or adopt a formula to be used and followed by him,' with reference to his charge to the jury. Feinglos v. Weiner, 181 Md. 38, 48, 28 A.2d 577, 581; Shaneybrook v. Blizzard, 209 Md. 304, 313, 314, 121 A.2d 218. We have also held that there is no obligation upon the trial judge to point out, in minute detail, all of the reciprocal duties and obligations of the respective parties to a case, provided the subject under discussion by the judge is fully and comprehensively covered in his charge to the jury. Ager v. Baltimore Transit Co., 213 Md. 414, 425, 132 A.2d 469. We are unable to conclude that the subject of primary negligence was fully and comprehensively covered in the charge, under the circumstances of this case; and we believe this failure resulted in prejudice to the appellants. Cf. Zulver v. Roberts, 162 Md. 636, 642, 161 A. 9.

What we have said does not, in any way, alter the previous rulings of this Court in such cases as Cocco v. Lissau, 202 Md. 196, 202, 95 A.2d 857, wherein it was held that if a child darts out in front of an approaching automobile when the driver is traveling at a reasonable rate of speed and obeying the rules of the road, so that with the exercise of reasonable care he is unable to avoid running into the child, he is not liable for any injuries the child may sustain.

II

The appellants requested the court to instruct the jury that the plaintiffs' decedent could not, under any circumstances, be guilty of contributory negligence, because he was a child of only 5 years and 10 months of age. They cite to us the cases of Miller v. Graff, supra; Bozman v. State, 177 Md. 151, 155, 9 A.2d 60, and Mahan v. State, 172 Md. 373, 385, 191 A. 575, as authorities supporting such a request. In the Miller case, this Court held that a child four years of age could not be guilty of contributory negligence, and stated [196 Md. 609, 78 A.2d 224]: 'We have definitely held that a child four years old cannot be guilty of contributory negligence under any circumstances.' The Bozman and Mahan cases were named as authorities for this statement. A reading of these cases fails to disclose such a ruling. In the Bozman case, there was no ruling on the point; the child was 8 years old, but the opinion (177 Md. at page 155, 9 A.2d at page 62) said, 'a child four years of age can not be guilty of contributory negligence under any circumstances,' and cited the Mahan case. In the Mahan case, the child involved was 3 years of age, and this Court specifically stated, 172 Md. at page 385, 191 A. at page 581, that a child of tender years may be guilty of contributory negligence in this State, although the great weight of authority is opposed to the 'proposition that a child a little over 4 years of age can be guilty of contributory negligence.' This Court has on many other occasions ruled that a child of tender years may be guilty of contributory negligence. Among the cases so holding, see United Rys. & Electric Co. v. Carneal, 110 Md. 211, 231, 72 A. 771 (child 3 years old); State, to Use of Kolish v. Washington B. & A. Electric R. Co., 149 Md. 443, 459, 131 A. 822 (child a little over 4 years old); York Ice Machinery Corp. v. Sachs, 167 Md. 113, 123, 173 A. 240 (child 6 years of age); Ottenheimer v. Molohan, supra (child 6 1/2 years old); Baltimore & O. R. Co. v. State, 30 Md. 47, 51 (child 5 years old); Stafford v. Zake, supra, 179 Md. 463, 20 A.2d 144 (child 7 years old); Baltimore City Pass. Co. v. McDonnell, 43 Md. 534, 551 (child 2 years and 2...