Leonard Ex Rel. Leonard v. Bratcher

Finan, J., delivered the opinion of the Court. At about 6:3Q in the evening on July 5, 1966, Arthur Joseph Leonard (hereinafter “AJ”), a fourteen year old boy, was playing “catch” with his brother Billy in the front yard of their family home near Kingstown, Queen Anne’s County. “AJ” was standing in the driveway near the westerly side of the highway which leads to Chester-town. He was holding onto a twenty-two inch high “mini” bicycle while tossing the ball back and forth. At one point the ball got away from him and rolled up the highway.

In pursuit of the ball, he pedalled up the southbound lane of the hard surfaced road in a southerly direction for at least 150 feet. When he started out he did not know where the ball was. He did know it was across the road. Deciding to cross over, he looked back over his left shoulder, saw no traffic behind him and looked forward where he said he could see “about five miles of straight road, you can see as far as you can.” He testified he saw no oncoming vehicles.

His own description of his conduct at this point is, “then I cut across the road.” In the process he was struck by a northbound vehicle. The impact occurred in the middle of the northbound lane. “AJ” gave ¹⁸⁸ no signal indicating that he was turning across the road, because, as he testified, “I didn’t see any cars so I thought it wasn’t necessary.” There was testimony to the effect that the operator of the motor vehicle did not sound his horn or swerve to avoid the collision by directing his vehicle onto the gravel shoulder or into the clear left lane. The testimony based on the observation of skid marks indicated that the operator of the vehicle applied the brakes fifteen to twenty-five feet before the point of impact. After the impact the car continued about 150 to 200 feet striking a speed sign along the side of the highway before coming to a stop.

There were no skid marks after the point of impact. The identity of the operator of the car as between Mr. Randolph Elgie Bratcher, defendant-appellee, and Mrs. Betty Ann Bratcher, who was also a defendant below, was disputed. The appellant claimed Mr. Bratcher was driving the car while the appellee maintained Mrs. Bratcher was the operator. There was evidence that Mr. Bratcher had been drinking.

In deciding the appeal before us we shall consider Mr. Bratcher as the operator of the car. “AJ’s” father brought suit on his behalf to recover damages for the substantial injuries sustained by the boy. At the conclusion of the plaintiff’s case, in the Circuit Court for Queen Anne’s County, the trial judge gave a directed verdict for each defendant. An appeal was taken from the judgment in favor of Mr. Bratcher. The issue before this Court is whether, as a matter of law, the infant plaintiff was guilty of contributory negligence, this being the reason assigned by the trial judge for the granting of the directed verdict.

Code, Article 66% (1967 Repl. Vol.) § 184(a) subjects the operator of a bicycle on a “roadway * * * to the rules of the road * * as spelled out in the Article. Section 228 (a) of the Article provides: “(a) Turning — No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with ¹⁸⁹ reasonable safety and then giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.” Unfortunately, in the instant case “AJ” failed to observe any of the rules of the road and in his own words, “* * * cut across the road.” We view the plaintiff’s statement that he looked before he crossed the road, in the light of the observation we made in Sears v. B. & O. Railroad, 219 Md. 118, 123 , 148 A. 2d 366 (1959) : “* * * we take account of the oft-repeated truism that if a witness says he looked and did not see, when if he had looked he must have seen, such testimony is unworthy of consideration.” The case at bar is similar to Billings v. Shaw, 247 Md. 335 , 231 A. 2d 12 (1967), wherein we held that a ten year old boy was old enough to be bound by the rules of the road and may be guilty of contributory negligence should he violate them. In Billings , both the plaintiff cyclist and the defendant motorist were traveling in the same direction and the cyclist “shot” to the left across the road as the motorist attempted to pass him.

We said, “It is clear to us that the proximate cause of the accident was Billings’ sudden and not to be anticipated lunge into the roadway.” In the case at bar we have the unanticipated and decisive movement of the cyclist cutting across the path of the oncoming vehicle. We see no substantial distinction between the two cases. It is true that in Billings , the motorist did sound his horn; however, he was in the position of an “overtaking vehicle” passing an “overtaken vehicle” on the highway. In that case the cyclist was on the