Brown v. Rogers

⁵⁶⁴ Moylan, J., delivered the opinion of the Court. This is an appeal from a judgment against Arthur Brown, the defendant, for bodily injuries sustained by Shellia Rogers, the plaintiff, following a pedestrian-vehicular collision between the plaintiff and the defendant’s automobile. On appeal, the defendant raises numerous contentions. Firstly, he asserts that his motion for a directed verdict should have been granted because the plaintiff was guilty of contributory negligence as a matter of law.

In reviewing that question, we must look at the evidence in the light most favorable to the plaintiff, assuming the truth of all the evidence tending to negate the presence of contributory negligence and drawing all inferences of fact fairly deducible therefrom. Batten v. Michel, 15 Md. App. 646 , 292 A. 2d 707 . McHenry Street runs east-west in Baltimore City and has two lanes for traffic — one lane for eastbound traffic and one lane for westbound traffic. It additionally has a parking lane on each side of the traffic lanes.

On October 7, 1971, at about 6:00 p.m., the defendant-appellant Arthur Brown was proceeding in an easterly direction along McHenry Street. He was driving in the second lane from the right curb. There were cars parked in the lane next to the curb. The weather was clear and dry, the road conditions were good, and it was still daylight.

As he approached the intersection of McHenry and Calhoun Streets, he saw a police car heading west, in the opposite direction. The defendant was approximately three to five car lengths from the corner at that time. He checked his speedometer, saw he was going 21 or 22 miles per hour, and reduced his speed. He then looked up and, for the first time, saw Shellia Rogers, the plaintiff-appellee, age ten, about a yard out from a car parked next to the right curb at the corner.

He hit his brakes and turned to the left. She, •nevertheless, collided with either the right front or side of his car. The plaintiff testified that just prior to being struck by the defendant’s car, she was in a confectionary store at the southwest corner of Calhoun and McHenry Streets. After she left the store, she proceeded to cross from the southwest ⁵⁶⁵ to the northwest corner of McHenry Street on her way home.

She stepped off the curb, took a couple of steps so that she could see past a car parked at the curb on the corner, and looked to see if any cars were coming. From where she was standing in front of the parked car, she could see over its hood. She saw the defendant’s station wagon “coming down kind of fast, then it came slow, and I thought he was going to stop, and I went ahead and I got hit.” Vincent Emmel, who was standing at the northwest corner of the intersection at the time of the accident, testified that the plaintiff walked out about two feet from the curb, in front of the parked car, and looked in both directions before continuing to walk across the intersection in the crosswalk. There was no traffic control at the intersection of Calhoun and McHenry Streets.

The plaintiff was walking in an unmarked crosswalk. Article 66V2, Sec. 11-502 (a) requires that a driver yield the right-of-way to a pedestrian crossing a roadway within a crosswalk. This preference the pedestrian enjoys at a crosswalk, however, is not unlimited. The pedestrian must still exercise due care and caution to avoid injury and cannot cross blindly without looking for approaching traffic.

Chasanow v. Smouse, 168 Md. 629 , 178 A. 846 ; Sugar v. Hafele, 179 Md. 75 , 17 A. 2d 118 . A pedestrian cannot “suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.” Article 66 V2, Sec. 11-502 (b). There are instances, therefore, when a pedestrian even though favored as to right-of-way may still be guilty of contributory negligence as a matter of law. Cf.

Jackson v. Yellow Cab Company, 222 Md. 367 , 160 A. 2d 612 . The pedestrian, however, having looked before crossing and having seen no vehicle or a vehicle at a distance thought to be justifiably safe, has the right to assume that a motorist will respect his right-of-way. The question of contributory negligence on the part of a pedestrian crossing in a crosswalk, therefore, is usually for the jury. Merrifield v. C. Hoffberger Co., 147 Md. 134 , 127 A. 500 ; Wintrobe v. Hart, 178 Md. 289 , 13 A. 2d 365 ; Henderson v. Brown, 214 Md. 463 , ⁵⁶⁶ 469, 135 A. 2d 881 ; Folck v. Anthony, 228 Md. 73 , 178 A. 2d 413 ; Lipphard v. Hanes, 232 Md. 405 , 194 A. 2d 93 ; Nizer v. Phelps, 252 Md. 185 , 249 A. 2d 112 ; Straughan v. Tsouvalos, 246 Md. 242, 248-249 , 228 A. 2d 300 .

There is no question that a child of ten years can be guilty of contributory negligence as a matter of law. Dawson v. Christopher, 258 Md. 413, 419 , 265 A. 2d 906 ; Billings v. Shaw, 247 Md. 335 , 231 A. 2d 12 ; Oddis v. Greene, 11 Md. App. 153 , 273 A. 2d 232 . In assessing whether the child was guilty of contributory negligence, the standard of conduct is that of ordinarily prudent children of the same age, experience and intelligence. State, Use of Taylor v. Barlly, 216 Md. 94 , 140 A. 2d 173 ; Slaysman v. Gerst, 159 Md. 292 , 150 A. 728 .

In order to withdraw a case from the jury on the ground of contributory negligence, reasonable minds must not differ that there was some decisive act on the part of the plaintiff which directly contributed to the cause of the accident. Pratt v. Coleman, 14 Md. App. 76 , 286 A. 2d 209 . The issue of the plaintiffs contributory negligence was properly submitted to the jury. The evidence that the defendant had reduced his speed approximately three to five car lengths from the corner and that the plaintiff, in looking for approaching traffic before crossing, saw the defendant’s car slowing down, was sufficient for the jury to have inferred that the plaintiff, age ten, thought the defendant was braking in order to respect her right-of-way and that she exercised due care for her own safety before crossing.

The appellant asserts error in various rulings on evidence made during the course of the trial. He first objects to the admission into evidence of the complete set of progress notes made by the Instructive Visiting Nurses Association. The notes were admitted under Maryland Code, Art. 35, Sec. 59. Catherine O’Neil, a visiting nurse with the association, testified on behalf of the plaintiff that the records were kept in the ordinary course of business of the association.

She testified that the organization is a private Community Chest organization concerned with public health. Its function is to treat patients in the home, giving nursing service as well as counseling and physical therapy, only under the instructions ⁵⁶⁷ of a physician. On November 3, 1973, three weeks after the accident, the plaintiff was referred to the organization by a doctor from the University of Maryland Hospital. The patient was in a cast at that time and the purpose of the referral was “to teach the mother how to take care of the patient, and in this case, give her nursing service, and for the prevention of any deformity or pressure area.” The witness testified that the visiting nurses would make notes on each visit “for the record of the patient, and for a continuity of care, and for the progress — what we would do with the patient in regard to care, and the orders to be carried out.” The doctors did not check the notes but the notes were available to the physicians should they want to check them.

We are not persuaded that there was error in the admission of these records. See Snyder v. Cearfoss, 190 Md. 151, 159 , 57 A. 2d 786 . The defendant contends that the trial court erred when it restricted the cross-examination of Officer Joseph Unger, of the Southern Police District, one of the plaintiff’s witnesses. When Officer Unger arrived at the scene, his sergeant already “had things under control.” Officer Unger started investigating as soon as the ambulance left.

On direct examination, he testified as to what he observed when he arrived at the scene — the road and weather conditions, the position of the defendant’s car, etc. He testified that he “didn’t have the equipment [like that carried by the Accident Investigation Division of the Police Department] at my disposal to take measurements. So to me that is I go more on information from witnesses if I had them.” On cross-examination, the defendant attempted to examine the witness concerning the point of impact, specifically whether or not he determined if the plaintiff was in the crosswalk at the time of the accident. The trial court permitted the defendant to bring out that this information was received from other witnesses — another officer at the scene who witnessed the accident and the defendant. The court sustained the plaintiff’s objection to the question.

The appellant contends that the witness was competent to testify as to this because, being the investigating officer, any information he obtained at the scene was res gestae. All the ⁵⁶⁸ information obtained at the scene of an accident by an investigating officer is not res