Finlayson v. Gruzs

Hammond, J., delivered the opinion of the Court. The jury found for the defendant driver in a suit on behalf of a boy almost five years old who was struck by her automobile. The claim on appeal is that the trial judge erred when he failed to instruct the jury as requested that if the driver “failed to exercise that higher degree of care that she would have to an infant than would ordinarily be required, then the jury’s verdict must be for the plaintiff.” About six-thirty p.m. on a clear day in July 1957, the defendant, a housewife en route to her home nearby, was driving on Fenway North, a twenty-foot wide one-way street in a thickly populated residential area in Essex in Baltimore County in which there were many children; a street sign several blocks away, of which the defendant was aware, urged caution because children were at play. She testified that she had been proceeding at about 15 miles an hour—the speed limit was 25 miles per hour—so as to make a left turn at Woodale Road, a short distance ahead, when two boys about ten years old dashed from her right across the path of her car, causing her to apply her brakes and skid to a halt.

(A police officer testified that there was one twenty-eight foot skid mark and a parallel shorter one.) She called out a reprimand to the boys and then had just started up again when she noticed the infant plaintiff’s head appear from between the parked cars at her right and saw the child run into the right front part of her car before she could stop. Two disinterested witnesses, who were seated in one of the parked cars, said they heard the sound of brakes just to the left of their car, and then observed the little boy running out in front of the car parked just ahead of theirs. One of these witnesses said the boy took about three steps and hit defendant’s car at its right front corner, and that the car went five feet or less after the impact. The point of impact was some four to six feet from the line of parked cars and was either in, or just outside, the crosswalk.

In his charge, the trial judge submitted to the jury the ¹⁹⁵ question of whether the accident occurred at a crosswalk where the pedestrian had the right of way, or at a point where the motorist had the right of way. After instructing them that the infant plaintiff could not be guilty of contributory negligence, he defined negligence and told the jury if they found from the facts before them that the driver had failed to use the care an ordinarily prudent person would have used under the circumstances, she could be found to have been negligent and, if her negligence caused or contributed to the accident, the verdict should be for the plaintiff but, on the other hand, if she did use the care an ordinarily prudent person would have used and the accident was caused by the little boy’s running out from between the parked cars and could not have been avoided by the exercise of due care, then the verdict should be for the defendant. The appellants concede that the charge would have been proper if the plaintiff had been an adult, but say that under the holding in State, Use of Taylor v. Barlly, 216 Md. 94 , the jury should have been instructed that the defendant, having seen the two boys run across in front of her car and realizing the large number of children in the area, should have exercised a greater duty towards the infant plaintiff than she would have been required to exercise if he had been an adult, Maryland Rule 554 requires in Section d that a party state distinctly the error of any instruction to which he objects and “the specific grounds of his objection.” Section e provides that the party assigning error on appeal “shall be restricted to (1) * * * the particular failure to instruct distinctly objected to * * * and