Bielski v. Rising

Bond, C. J., delivered the opinion of the Court. The appellee, a boy then ten years of age, was struck by a bakery truck driven by the appellant, while the boy, with two other small boys, was pushing a toy wagon across the Key Highway in Baltimore City at Jackson Street; and he has recovered judgment against the driver, Bielski, for damages alleged to have been sustained by him. On the appeal by Bielski, two questions are raised: (1) Whether the evidence established contributory negligence on the boy’s part beyond controversy, so that the defendant was entitled to have the court direct a verdict in his favor because of that fact; and' (2) whether the defendant was entitled to introduce in evidence testimony given in the traffic court of Baltimore City by a witness considered to be insane at the time of trial of this suit. That there was evidence legally sufficient to support a finding of negligence on Bielski’s part is not now questioned.

There was evidence tending to prove that the three boys were attempting to cross Key Highway, at a point where it runs eastwardly and westwardIy, from the southwest corner of Jackson Street, which enters Key Highway from the south. Bielski’s truck was coming westwardly from the right-hand or easterly side of the boys, but the boys testified ⁴⁹⁴ that, as they started and looked that way, the truck was distant about the length of a city block, and that they knew they could cross before it would reach them. The movement of the truck and the place of contact are subjects on which the witnesses disagree, but there is evidence that the truck was moving at a rate of about forty miles an hour, and that the defendant, perceiving some trouble in the working of the truck, and turning his attention to his dashboard, permitted the truck to move over to the left or southerly side of the highway, where the boys were, and to strike them there. The plaintiff testified that, after having looked for on-coming vehicles as he left the sidewalk, and having seen that this truck was at about the distance of a block away to his right, he did not look again until he was struck; and that testimony is the principal reliance in the argument that contributory negligence had been established as matter of law. .

The testimony does not, we think, so establish contributory negligence. We concur in the trial court’s ruling to that effect. It was permissible for the jury to infer from the evidence that the truck did come over to its left, that the plaintiff was justified, and exercising due care, in assuming that he need not guard himself against it there, and in .assuming that the truck would not come with such rapidity .as to overtake him anywhere in the street. If either fact could be found by the jury, then the court could not hold that on the evidence the plaintiff must