Greenbaum Ex Rel. Greenbaum v. Costa

⁵²⁵ Stockbridge, J., delivered the opinion of the court. At the conclusion of the plaintiff’s evidence, at the trial of this case in the Superior Court of Baltimore City, the defendant offered four prayers. The first of these was1 granted, and is in the following language: “At the request of the defendant the court instructs the jury that there is no evidence in this case of negligence on the part of the defendant and that the verdict of the- jury must therefore be for the defendant.” The three other prayers- do not ap-pear to have been ruled upon by the court. The subjects embraced in these prayers were: (1) the contributory negligence of the plaintiff; (2) the legal sufficiency of the evidence offered to entitle the p-laintiff to recover; and (3) the legal insufficiency under the pleadings of the evidence offered to entitle the plaintiff to a recovery.

All that this Court is called upon to do is to examine the testimony as given before the jury, and see- whether it warranted a withdrawal of the ease from- the consideration of the jury. Iu the brief filed, upon behalf of the appellant the following language is attributed to the court, in its remarks to the jury upon the granting of the prayer of the defendant: “Under those circumstances, whether the man who was driving the automobile was guilty of negligence or not, it is perfectly clear to me tbat that little girl, standing there under those circumstances, was guilty of negligence and want of care herself, and in that way contributed to tbe accident. Under those circumstances, she has no right to recover in an action for damages; and, therefore, on the call of the clerk, Mr. Foreman, you will announce the verdict of the jury in favor of the defendant.” It is difficult to understand this, for the reason that if the court- used, the language attributed to it, the real cause- for the court’s action in withdrawing the case was because o-f ⁵²⁶ contributory negligence on the part of the plaintiff, and if the court did not use it, the statement has no proper place in the appellant’s brief. It only remains, therefore, to examine the testimony adduced before the jury, and which, for the purposes of this appeal must be regarded as true, and see if the facts recited warranted, tire instruction of a verdict for the defendant.

There is little, if any, conflict in the testimony, certainly not more than is usually to be found where different persons are stating their recollection of a past event. .. On the evening of October 15th, 1919, at about 8.45 P. M. ,the infant plaintiff, a girl then thirteen years of age, was ^ncting on the west side of Payson Street between Ashton a¡p.d Ramsay Streets. She had on roller' skates, and as she stood there her right foot was upon the curbstone and her left foot in the gutter. On the sidewalk and, leaning against her while adjusting her skates, was Marjorie Norford, who was about a year older than the infant plaintiff.

Payson Street at this point is rather narrower than the usual city street. Ota. the opposite side of this street there was a carnival being held, which had attracted to it quite a number of people, estimated by the police officer on the beat at about two hundred, while in the street itself, and close up to the east curb, stood a large automobile trad? with seats for the accommodation of passengers, the chauffeur of which was endeavoring to gather up a load of people to take to Oatonsville and bad?. Gathered about the truck were quite a number of children, estimated by the police officer at about two hundred. It had rained a little earlier in the evening, leaving the street wet, and Payson Street was a smoothly paved street frequented by children upon roller skates. ■ About the hour before named an automobile driven by the defendant was coming north on Payson Street, and, apparently to avoid the crowd, it veered from the east side of Pay-son Street, where it was entitled to the right of way, to the west side.

At what rate of speed it was moving