Benton v. Henry

Marbury, J., delivered the opinion of the Court. This case involves injury to Richard Owen Benton, infant, plaintiff-appellant, occasioned by his fall from the running board of a moving ice cream truck, owned by defendant-appellee, Wesley Lee Henry. Suit was brought in the Circuit Court for Prince George’s County on behalf of the infant plaintiff by his father and next friend, Samuel Jethro Benton. The father also sued individually.

A jury trial was held on February 10, 1965, Judge Parker presiding. On this appeal it is contended that the trial judge was in error in directing a verdict for the defendantappellee at the end of the plaintiffs’ case because (1) the question of whether the plaintiff was guilty of contributory negligence was for the jury’s determination and not a question which could be decided as a matter of law by the judge, and (2) the doctrine of last clear chance would have been applicable under the evidence if contributory negligence had been shown as a matter of law. On the date of this unfortunate accident, May 21, 1963, the eleven year old victim and some of his fellow classmates celebrated the end of the school day by purchasing ice cream from the appellee’s truck parked on the right hand side of Prince George’s Avenue, a public street, near Kentland Elementary School. Ice cream was dispensed from the right side of the vehicle, which was driven by Frank Crayle, an employee of the appellee, the former being assisted by Richard Bell, who was the right front seat passenger at the time of the accident.

The child testified that after finishing his ice cream he stood for approximately two minutes on the driver’s side of the vehicle and he then proceeded to get on the truck’s running board. The only evidence which explained why the boy got on the truck came from the hospital records which were introduced into evidence by the plaintiffs-appellants, without defendant’s objection. These records indicated that the boy stated after the accident that his purpose in getting on the running board was to get a ride. The photographs of the truck introduced into evidence by the appellant show that the running board on which ³⁴ the infant appellant chose to position himself extends from the rear of the cab to the left rear fender for a distance of approximately two feet, with a width of about eighteen inches.

The photographs clearly indicate that a person standing on the running board would not be within the peripheral vision of a driver who was conventionally seated within the cab of the truck. Young Benton testified that he could not remember whether the driver had already entered the cab of the vehicle when he, Benton, climbed on the running board, but he did testify that the truck was moving some five or six seconds after he had gotten on it. The appellants’ theory of primary negligence as claimed in their declaration was that the driver failed to use reasonable care to determine whether there were children on the truck or in close proximity thereto before he drove away, and that thereafter the truck driver operated the vehicle in a negligent and careless manner with knowledge, actual or imputed, that the minor plaintiff was on the running board, causing the infant to fall from the truck. The Benton boy testified that the truck “started going fast” up hill for