Lenehan v. Nicholson

Collins, J., delivered the opinion of the Court. This is an appeal by the plaintiffs, appellants, from a judgment rendered as the result of a directed verdict for the defendants, appellees, granted by the trial judge in a trial before a jury. The facts, for the purposes of this case, are substantially as follows: James J. Lenehan, Jr., (Jimmy), six years of age, and his friend, Tommy Murphy, age 7, on October 9, 1955, were playing near a culvert on the east side of Norbeck Road, Route 28, near Rockville, Maryland. The concrete road at that point was twenty feet wide from shoulder to shoulder, a two lane highway with a solid white line down its center.

The speed limit was forty miles per hour. Mr. Charles F. Nicholson, one of the defendants, was operating his automobile on that road about 5 P. M. in daylight in a southerly direction, accompanied by his wife, the other defendant. The weather was clear and dry and the visibility from the curve in the road was about 350 feet. Along the east side and off the road was a rubble of broken concrete on which it was difficult to walk.

Behind that, at a distance of 10 feet, was a hedge. Jimmy ran across the road about 110 feet south of the culvert and was struck by the Nicholson car. At the end of the plaintiffs’ case the trial judge instructed a verdict for the Nicholsons, defendants, and from a judgment for costs on that verdict the plaintiffs appeal. Jimmy said that on Sunday, October 9, 1955, he and Tommy Murphy and Tommy’s three brothers were hunting for frogs in a culvert.

He and Tommy crossed Norbeck Road from west to east and went down an incline to the culvert on that side. He later recrossed the road and when he was half way across, the car hit him on the legs. He did not see the car before he started across nor did he see or hear it before he was struck. On cross examination he said he fell on the ⁴¹⁷ side of the road where the automobile was and it struck his legs.

Tommy Murphy said that he was seven years of age and was playing with his three brothers and Jimmy down near the culvert on the west side of Norbeck Road trying to catch frogs. They saw a mouse run into the culvert and Jimmy said he was going to cross the road and Tommy said: “I will, too.” His three brothers told him not to cross but he and Jimmy did so. They went down the hill, looked into the culvert for the mouse, but did not see it. They then climbed up the hill.

They were not behind the hedge at any time. At one point Tommy said that he, Tommy, went up the side of the road and then crossed. He did not know where Jimmy was. At another point he said Jimmy was still at the culvert.

He further said he was on the west side of the road, a short distance south of the culvert, when he turned and looked and saw Jimmy standing about the same distance from the culvert on the east side of the road. At another point he said that he, Tommy, had not crossed the road and was in the middle of it when Jimmy was struck. Later he said he turned around to make sure Jimmy was crossing. At another point, when asked whether he turned around to make sure Jimmy was crossing, he replied: “No.” At one time, when asked where he saw Jimmy, he said that Jimmy was along the side of the road.

When asked whether Jimmy was standing on the edge of the road, he said: “I don’t know.” At another point Tommy said that he, Tommy, was almost across the road when he heard the squeaks of the car, turned around and saw the car hit Jimmy. He later said he did not actually see the car strike Jimmy. When asked when he turned and whether he saw Jimmy moving or standing still, he, Tommy, said he did not know. He also said that the first time he knew Jimmy was hit by an automobile was when he heard the squeaks.

He then turned and saw Jimmy skidding across the road and the automobile was skidding across to the right side of the road. Mr. Charles Nicholson, defendant, testified that he was driving his Buick sedan on October 9, 1955, along Route 28, near Rockville, about twenty-five miles an hour, at approxi ⁴¹⁸ mately five o’clock in the afternoon. It was still daylight and the weather was dry and clear. He had had nothing to drink.

He came down around a winding hill and was approaching another hill going up grade. The road at that point was straight for several hundred yards up the hill. When he first saw Jimmy, he was running fast straight across the road from the concrete shoulder, was half way across to the other side, 10 or 15 feet across the road running toward his car. He kept coming, kept running and the left headlight of the automobile hit him in the head.

The instant he saw Jimmy he applied all his brakes and it seemed to him that he stopped immediately or within 1 foot after the impact. When he stopped the car, one wheel was off the right shoulder of the road. The only damage to the car was at the left headlight, which was repaired at a cost of $3.00. Mrs. Nicholson testified that she saw no children on the road.

She did not see Jimmy until he was practically half way across the road. He was running very fast right toward the car and he hit the front edge of the automobile on the right side of the road. The car stopped within a foot after Jimmy was struck. When it stopped the right front wheel was then off the shoulder of the road.

Marion S. Nicewarner, of the Montgomery County Police Department, testified that he arrived at the scene shortly after the accident. Mr. Nicholson told him he did not see Jimmy when he ran out. When he did see him he came out of the hedge right across the road. He applied his brakes and cut to the right to keep from hitting Jimmy.

He struck him with the left front of his car. Officer Nicewarner said he noticed a smell