Harrison v. Smith

Urner, J., delivered the opinion of the Court. The single question presented for decision on this appeal is whether the trial court erred in refusing an instruction, at the request of the defendant, based upon the theory that the injury sued for may have been the result of an unavoidable accident. The plaintiff, a little girl six years of age, while crossing Thirty-sixth Street in Baltimore City, was injured by the automobile which the defendant was driving. According to testimony produced in the plaintiff’s behalf, she was struck by the right front fender of the automobile, passing rapidly from her left, when she was proceeding across the street, between the white lines marking the space for pedestrian passage, at the intersection of Thirty-sixth and Poole Streets.

It was testified for the defendant that the automobile driven by her had proceeded beyond the pedestrian crossing when the plaintiff collided with it, as she ran into the street from the sidewalk between two cars parked along the curb. The issues of primary and contributory negligence were submitted to the jury by appropriate instructions. The verdict was for the plaintiff, and the appeal is from the ensuing judgment. In view of evidence tending to prove that the defendant was exercising due care, and upon the hypothesis that the plaintiff, because of her immaturity, was not legally chargeable with negligence, it is argued that there was proper ground for an instruction exonerating the defendant if the jury should find the injury to the plaintiff to have been caused by an accident which was unavoidable.

The form of the proposed but rejected instruction was as follows: “The court instructs the jury that if they shall find from the evidence that the injury to the plaintiff was caused by an unavoidable accident, unmixed with negligence on the part of the defendant Katherine B. ³ Harrison, the verdict of the jury shall be for the said defendant.” It is contended for the plaintiff that such an instruction could not properly have been granted in this case because each of the parties to the suit offered evidence tending to prove that the accident would have been avoided if the other had not been negligent. A granted prayer, offered by the defendant, instructed the jury that if the infant plaintiff was guilty of any negligence which contributed to her injury, the verdict should be for the