Dorough v. Lockman

Hammond, J., delivered the opinion of the Court. Aggrieved by the verdict of a jury in favor of the driver and owner of the car which struck him, an eight-year-old boy appeals by his father as guardian, urging error in the trial court’s charge to the jury. ¹⁷⁰ The boy had been playing with several other children on the lawn of his home and was bouncing a soccer ball against a stone retaining wall thirty-eight feet from the curb. The ball bounced back past him and on into the street, and he ran after it and was struck by the car. He could not remember whether he looked to see if a car was coming, or not.

Other testimony would have permitted these findings: the driver had turned into the street some four hundred seventy feet from the point of impact; he was driving at a speed of fifteen miles an hour (the estimate of a passenger), at eighteen (the estimate of another passenger), at from twenty to twenty-five (the driver’s estimate), at not more than the speed limit of twenty-five (the deduction of the investigating policeman from the skid marks of some thirty-two feet from the rear wheel); the setting sun produced a glare which required the visor of the car to be drawn down, and produced reflections and deep shadows on the right side of the road (from which the boy ran); there were no parked cars on the right side, or there were two parked cars on that side; bushes on the right obstructed the view of the driver of the place the children were playing, or there was no obstruction; there were children playing on lawns on both sides of the street; several cars had turned into, and proceeded up, the street ahead of the car that struck the boy; the driver thought there was a parked car just behind the point of impact which would have required him to turn slightly to the left to have avoided it; he lightened his foot on the accelerator, turned his eyes momentarily to the right and realized the “parked car” was a heavy shadow, saw the ball come into the street, braked his car and hit the child as he followed the ball into the street. In Taylor, State for Use of v. Barlly, 216 Md. 94, 99, 100 , the injured boy was in the street when the motorist, who was exceeding the speed limit, was some one hundred forty feet away with unobstructed vision. We held that the boy was entitled to have the jury instructed that it was the driver’s duty, even between intersections, to keep a proper lookout and that children of tender years do not use the same degree of care and caution for their own safety as do adults, saying: “The appellants were entitled to have the jury instructed up ¹⁷¹ on their theory of the case.” Appellants in the case before us, relying heavily upon Barlly , seek reversal on the claim that his theory of the case was not put before the jury. This theory is that a motorist traversing a residential area must anticipate (a) that children will be at play whether he sees them or not, and (b) that they may suddenly run into the street, and therefore must warn of his approach by sounding his horn and must slow his speed to a point where he can avoid striking a child who does run into his path.

They find error also in that the jury was not told in terms that the motorist’s statutory right of way over pedestrians between intersections is not absolute. A litigant is entitled to have his theory of the case presented to the jury only if it is a correct exposition of the law and there is testimony in the case which supports it.