Bloom v. Good Humor Ice Cream Co.

Forsythe, J., delivered the opinion of the Court. The appeal is this case is from a judgment for costs, entered by the Baltimore City Court in favor of the appellees. The judgment was entered after the court had sustained a demurrer, without leave to amend, to the “First Amended Declaration.” The facts upon which this action is based are stated in the amended declaration. It contains but one count, and is as follows: “Leonard Bloom, an infant, by Hyman L. Bloom, his father, and next friend, sues The Good Humor Ice Cream Company of Baltimore, Maryland, a body corporate, and Adam C. Kearn. “For that at the time hereinafter mentioned the Defendant, the Good Humor Ice Cream Company of Baltimore, Maryland, a body corporate, was engaged in the vending of ice cream and other frozen products, in small packages, on the highways of Baltimore City, from trucks operated by their agents and employees in the City of Baltimore, State of Maryland; and on the 5th day of August, 1939, a truck belonging to the Defendant, The Good Humor Ice Cream Company of Baltimore, Maryland, and operated by the Defendant Adam C. Kearn, its agent, servant and employee, who was then engaged in selling its ice cream and other frozen products in small packages therefrom as aforesaid, was caused to come to a stop and was parked in a southerly direction in the southern lane of Payson Street, at or near Ridge Hill Avenue, both public thoroughfares in the City of Baltimore, but near the centre thereof, so that said truck was parked a distance of about eight (8) feet from the west curb of said.

North Payson Street; that the infant Plaintiff, who was then ten (10) years of age, and who was on the East sidewalk of said North Payson Street, was invited by the said Adam C. Kearn, in the scope of his employment, for the purpose of making a sale, to come to the said parked truck, which said infant pro ³⁸⁶ ceeded to do, and the said Adam C. Kearn then and there sold the said infant one of his employer’s products, after which the said infant walked behind the said truck and proceeded to return to the east sidewalk of said street when he was struck and seriously injured, as the result of the negligence of the Defendants by an automobile operated in a careful and non-negligent manner in a northerly direction on said Payson Street; that the aforesaid accident to the Plaintiff was caused by the carelessness and negligence of the said Adam C. Kearn, the employee and agent of the said Defendant, The Good Humor Ice Cream Company of Baltimore, Maryland, in inviting the said infant Plaintiff to a place of danger, for the purpose of selling him one of his employer’s products and in failing and neglecting to see that the said infant plaintiff was safely returned to the east sidewalk of said Payson Street, after he had consummated his purchase; that the said infant plaintiff sustained a concussion of the brain, various bruises, abrasions and lacerations of his head, body and limbs and was caused to suffer great pain and mental anguish, and other wrongs sustained. “And the Plaintiff says that the said accident was caused by the carelessness, recklessness and negligence of the said Defendants, and without any negligence on the part of the said infant plaintiff contributing thereto. “Therefore, the Plaintiff claims Fifteen Hundred (§1-500.00) Dollars damages.” From those allegations of the amended declaration, it appears that the only question presented by this appeal is, whether the facts as therein charged constitute a sufficient charge of actionable negligence against the appellees. The specific acts of negligence attributed to the appellee, Kearn, are stated in the following language: “That the aforesaid accident to the Plaintiff was caused by the carelessness and negligence of the said Adam C. Kearn, the employee and agent of the said Defendant, The Good Humor Ice Cream Company of Baltimore, ³⁸⁷ Maryland, in inviting the said infant Plaintiff to a place of danger, for the purpose of selling him one of his employer’s products and in failing and neglecting to see that the said infant plaintiff was safely returned to the east sidewalk of said Payson Street, after he had consummated his purchase.” In addition to the above allegations, the amended declaration expressly states that the infant appellant, after he had approached the appellees’ truck, and had made his purchase of ice cream, “walked behind the said truck and proceeded to return to the East sidewalk of said Street, when he was struck and seriously injured” by an automobile approaching on the other side of the street, and proceeding in the opposite direction. Those allegations are of two separate and intervening physicial acts, both of which occurred after