Gellerson v. Rasins

Horney, J., delivered the opinion of the Court. This appeal is from the judgment for costs entered on a jury verdict in favor of the defendants-appellees (Robert C. Rasins, et ux.) against the plaintiffs-appellants (Russell McC. Geller-son, et al.) arising out of a bicycle-automobile collision. At the time of the accident, Betty Jane Rasins was operating the automobile and Russell was riding as a passenger on the handlebar of the bicycle pedaled by Andrew Andre.

Russell was facing frontward with a hand on each side of the handlebar and with his feet on the axle of the front wheel when the collision occurred. As he had often done, Russell was helping Andrew deliver newspapers. Both boys were twelve years old. The operator of the automobile testified that she saw the boys a block away while she was driving at the twenty-five mile speed limit.

She slowed down at once, began touching the brakes and sounded the horn when she was two or three car lengths behind the bicycle. Apparently the operator of the bicycle and the passenger were unaware of the automobile approaching them from the rear until they heard the beep of the horn. The bicyclist testified that he was steering the bicycle and that the passenger was “just holding on,” but there was no evidence one way or the other as to whether or not the position of ⁷⁸ the passenger on the bicycle impeded the ability of the bicyclist to balance and steer the vehicle. There was a conflict in the evidence as to what part of the road the boys were traveling on and as to whether the bicycle was turned to the right or the left in an effort to avoid being hit by the automobile.

The only clear fact is that as the operator of the automobile approached the bicycle from the rear with the apparent intention of passing it, the automobile and the bicycle collided. Although Andrew was not made a party to the action, there is evidence in the record indicating that he might have been negligent. But when the attorney for the appellants requested an instruction advising the jury that any negligence it might believe Andrew guilty of should not be imputed to Russell, the rtrial judge refused to do so. We think this was error.

It is clear that negligent conduct by the operator of a vehicle is not imputable to a passenger in the absence of an agency relationship or actual or presumed control over the vehicle by the passenger. Powers v. State use of Reynolds, 178 Md. 23 , 11 A. 2d 909 (1940); Tobin v. Hoffman, 202 Md. 382 , 96 A. 2d 597 (1953). See also Slutter v. Homer, 244 Md. 131 , 223 A.2d 141 (1966), where it was said that the doctrine of imputed negligence, like agency, is based on relationship but turns •on the facts in respect of the right to control the vehicle whereas the agency doctrine (predicated on status rather than on an inference of fact) applies irrespective of the momentary "right of physical control. In M. & C. C. of Baltimore v. State use of Cirtout, 146 Md. 440 , 126 Atl. 130 (1924), our predecessors refused to impute the negligence of a motorcycle operator to a passenger, stating (at p. 450) that "[tjhis case falls within the rule that ‘the contributory negligence of * * * the driver •of a * * * private vehicle, not owned or controlled by the passenger, and who is himself without fault, will not constitute a bar to the right of the passenger to recover