Graham v. Western Maryland Dairy, Inc.

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment entered on a Verdict by a jury in favor of the defendants, appellees. Suit' was entered for injury to the infant plaintiff, three years and three months of age, and for injury to his tricycle. ■■ On June 6th, 1949, Normand E. Fetsch drove a Western Maryland Dairy truck in an alley, claimed by the plaintiff to be a public one, between Winston Road, the northernmost street in Northwood, a suburb of northeast Baltimore, and Stonewood Road, at about 9 A.M., the weather being clear and the street being dry. Fetsch testified that he had been delivering milk in that alley for two years and had seen the infantplaintiff at an earlier stop in that alley that morning. «The mother knew that the child was playing in the alley at that time.

Fetsch stopped his truck on the right side and got put and delivered milk to three of the houses on the righthand side of the alley and returned to the truck intending to move it further down the alley. He approached the truck on its righthand side toward its front and said that he did not see anything in front of the truck at that time. He got in the truck on the right side and looked in his rear view mirror and saw nothing. He looked in the left mirror and saw nothing.

He then looked forward and seeing nothing started the truck in motion. He'then “seen the flash going forward toward the front of my truck down the alley and instinct will tell you to stop.” He stopped the truck, it'having moved not more than “five or six or eight feet” from the place where he originally started. He said: “As I started to pull away, I was reaching down for the emergency and as I reached down to.the emergency to pull away, I seen the boy on; a tricycle coming from the left to the front of the truck as if he was racing me, or just what he was doing- at ²¹³ that time, you know how children are, and right away I stopped the truck.” He said he could not see exactly what part of his truck hit the boy, but he would say it was the left front fender. He had not moved the truck more than five, six or eight feet.

He got out of the truck and found the tricycle lying underneath the left center of the front of the truck. He picked up the child who was scrambling around near the right front step of the truck and carried him to the home of his parents, stating to the mother that he did not see the child. The mother said it was the custom of children to play in that alley and there were three children in the alley at the time of the accident. Mrs. Sann, a neighbor, testified that she had seen the boy up against her fence “in front of the truck that was coming down the alley”.

It is not clear whether she was referring to the motion of the truck at the time of the accident or at some previous stop. In the charge to the jury, the court among other things said: “So you may consider whether, in your opinion, Mrs. Graham was guilty of contributory negligence in permitting an infant of three years and three months to be alone in the alley with the tricycle under the circumstances that you have heard in this case, without it being in the care and custody of some older person.” At the end of the charge the attorney for the plaintiff said: “I except to the charge as to the contributory negligence of the mother, and as to the sign.” This Court said in the case of Seiland v. Gallo, 194 Md. 282 , 71 Atl. 2d 45, at page 46: “Under the provisions of Rule 6(c) and (d) of the General Rules of Practice and Procedure, Part Three, Section III, the exception must state distinctly the portion of the charge to which the objection is made and the specific grounds of the objection. (Citing cases). On appeal we can only consider the particular portions of the instructions objected to, before the jury retired, when the specific grounds of such objection are distinctly stated.” From the wording of this objection, we can only assume that the ob ²¹⁴ jection was to the fact that the trial judge had said anything at all about contributory negligence, because appellant claims that no negligence could be imputed to the child.

In Cumberland v. Lottig, 95 Md. 42 , 51 A. 841 , a boy, six years of age, was carried by his mother to the roof of their house at night to look into an adjoining theater. This six year old boy, the plaintiff, was brought within reach of an electric wire which ran across the roof which he touched at an exposed point and he was severely burned. In that case, in holding that the mother was guilty of contributory negligence as a matter of law, this Court said at page 48: “The evidence of the infant plaintiff’s mother showing, as we have said, that she recklessly and