Faulkner v. Cummings

.Barnes, J., delivered the opinion of the Court. Two questions are presented to us in this appeal: (1) Whether or not the appellee, Priscilla Spencer Cummings (Priscilla or defendant) was guilty of primary negligence in the operation of her automobile on May 27, 1968, on Tilghman’s Island, Talbot County and (2) Whether or not James A. Faulkner, Jr. (Jimmy), seven (almost eight) years of age when the accident happened, whose mother and next friend Mildred H. Faulkner (Mildred) was the plaintiff below and is an appellant here, and was also a plaintiff individually by oral amendment permitted by the lower court prior to opening statements at the trial, was guilty of contributory negligence as a matter of law. The Circuit Court for Talbot County (Clark, J.) which had originally declined to grant Priscilla’s motion for a directed verdict at the end of the case, submitted the case to the jury which rendered a verdict for $2,500 for Jimmy and $1,902.75 for Mildred. The trial court then granted Priscilla’s motion for a judgment N.O.V. for costs.

The lower court indicated in its written opin ⁵⁵⁴ ion that there was no sufficient evidence of primary negligence on the part of Priscilla so that it was unnecessary to further determine whether or not Jimmy was guilty of contributory negligence as a matter of law. We are of the opinion that Judge Clark properly ruled that there was no sufficient evidence of primary negligence on Priscilla’s part and we, too, do not find it necessary to pass upon the question of Jimmy’s contributory negligence as a matter of law. At approximately 3:30 P.M., Jimmy and his friend Joey Lowery were walking home from school on the westerly edge of Maryland Route 33, which is the main street of Tilghman, in a northerly direction toward the bridge at Knapps Narrows. Several other school children were also walking in the same direction.

The accident occurred at a point where the road is straight and has a width of 20 feet, including both the shoulders and paved surface. There are no pedestrian sidewalks and the shoulder area, approximately two feet wide on each side of the road, is used as an area in which pedestrians walk. It had been raining the day of the accident, and was drizzling slightly at the time of the accident. The road surface was wet.

The accident occurred in a residential area of Tilghman near the store of Mary McCarthy. Jimmy and Joey had crossed Mission Road at the point of its intersection with Route 33 and were continuing toward the store. Three or four automobiles were parked off the main portion of Route 33 in front of the store and were facing north toward the bridge. All the cars were on the “wrong side” of the road.

The car parked farthest from the bridge was owned by a Mrs. Mister; the car in front of the Mister car was owned by Mr. and Mrs. Gerald Phillips. The house immediately south of the McCarthy’s store—owned by a Mrs. Harrison—has a sidewalk running from the house to the edge of the road. On the east side of Route 33 opposite the sidewalk, is a private driveway leading to Mrs. Garvin’s house. It was at this point, in the middle of the block, that Jimmy attempted to cross Route 33.

Jimmy’s father testified for the plaintiffs that his son ⁵⁵⁵ was crossing “past his turn” in the middle of the block inasmuch as his home was on Mission Road and Jimmy had been taught to cross at the Mission Road intersection with Route 33. Priscilla, called as an adverse witness by the plaintiffs, testified that she saw Jimmy before he crossed Route 33 when he came out from behind a parked car (this car was the last of the three cars parked off the west side of Route 33), looked to his left toward the bridge and “then just darted out in front of me striking my car.” She was driving between 10 and 15 miles per hour. She immediately put on her brakes and stopped almost immediately less than a foot after the impact. She said that the impact with Jimmy occurred where the bumper curls around the front of the fender of her automobile.

Jimmy’s body was thrown “off the left side” of her car, about two or three feet from her car. Leaving her car, Priscilla walked forward to reach him. Jimmy and other witnesses testified that he walked across Route 33. When Priscilla saw Jimmy look to his left, she testified he was “maybe five, six foot” from her car.

She did not sound her horn but stopped almost immediately. Jimmy’s injuries consisted of a fracture of the femur in his right leg and a large bruise from his right hip to his knee. Priscilla, Joey and Mrs. Phillips all testified that Jimmy had his head down as he was going to cross Route 33. Mrs. Phillips testified that “he was sort of bent over like he was trying to keep things from getting wet.” There is no dispute that Priscilla’s automobile was proceeding on the right-hand side of the road, east of the center of Route 33, when the impact occurred and that she had driven on the right-hand side of the road prior to the accident.

Priscilla testified that she was in a congested area and had her mind on her driving, on the traffic in front and in back of her and further that there was traffic, including a school bus, crossing in the opposite direction at the time of the impact. In the present posture of the case, we must assume the ⁵⁵⁶ truth of all evidence, and all reasonable inferences from those facts, in favor of the appellants. Polson v. Martin, 228 Md. 343 , 180 A. 2d 295 (1962); Henkelmann v. Metropolitan Life Insurance Co., 180 Md. 591 , 26 A. 2d 418 (1942). If there is“ ‘any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence will be left to the jury.’” Perlin Packing Co., Inc. v. Price, 247 Md. 475, 483 , 231 A. 2d 702, 707 (1967); Valench v. Belle Isle Cab Co., 196 Md. 118, 122 , 75 A. 2d 97, 98 (1950).

We are mindful that the driver of a motor vehicle must exercise greater