Lloyd v. Yellow Cab Co.

Prescott, J., delivered the opinion of the Court. This appeal involves an action for damages, before a jury, for personal injuries sustained by the infant appellant-plaintiff and for loss of services, etc., sustained by his father, also an appellant-plaintiff, as the result of an accident which occurred when said infant was struck and injured by a taxicab owned by The Yellow Cab Company and operated by its employee, Mahlon Lancaster, both of whom were defendants below and are appellees here. The accident occurred on the 4th day of June, 1957, at or about 5 p.m., when the infant plaintiff, three years of age, was struck between the intersection of Preston and Biddle Streets, while crossing from the west to the east side of Madison Avenue. The taxicab was proceeding north on Madison Avenue approaching its intersection with Preston Street.

The infant was on the step or sidewalk in front of his house, and attempted to follow two other children across the street to the opposite side of Madison Avenue. The other two children ran across ahead of him when the taxicab was approximately twenty-five feet away. The operator of the cab testified that lie had noticed some children on the west side of the street, ⁴⁹⁰ but did not see any children crossing until they were almost to the center of the street, where they must have emerged from between parked cars. When he saw these children, they were 15 to 20 feet away from him and it was only necessary for him to slow up, as he was running between 20 and 30 miles per hour.

He stated that he naturally continued to watch the two children who were crossing in front of him, and when they were about across the street, “someone hollered and said ‘my brother’ ” and, “at that particular time [he later testified that the child, the infant plaintiff, was about 3 feet from the cab at this time] I saw this other little child nearing the cab, and I immediately applied the brakes and pulled to the curb to my right * * *; the child was running with his head down, as children running do, and he made contact with the left fender of my cab—the front fender.” When the cab came to a stop, it was about two inches from the right curb and the child was lying about two feet in front of the cab. He also stated that he observed his skid marks and estimated them to be approximately 25 feet long. The passenger in the cab testified that the infant plaintiff ran into the fender of the cab, when it was about in the middle of the block, and the cab was being operated “fairly slow.” The adult appellant, the injured child’s father, testified that he was lying down in his home at the time of the accident; when he got out of the front door, he saw his wife and the cab driver picking the “baby up”; that “I didn’t pay the baby and wife any attention whatsoever, I went straight to the investigating part of it to make sure that this cab was the one that made the skids”; and that the skid marks were 85 feet in length. Mrs. Evans, a witness called on behalf of the plaintiff, testified that she saw the cab when it was about two feet from the injured child, and, in her opinion, the cab was going “fast.” The principal question raised by the appellants is what they term “error in granting the defendants’ unavoidable accident prayer.” During the course of his instructions to the jury, the trial judge stated: “In summary, if you find that the accident was unavoidable, unmixed or without any negligence on ⁴⁹¹ the part of the driver of the cab, as I have heretofore explained to you about negligence, then your verdict must be for the defendants.” (Emphasis supplied.) This was the only reference made in the charge as to the accident being unavoidable.

The appellants earnestly and strenuously object to this portion of the court’s instructions. They first point to Judge McSherry’s classical definition of an unavoidable accident in the early case of Washington C. & A. Turnpike Co. v. Case, 80 Md. 36 , 30 A. 571 , wherein it is said that an unavoidable accident is “an inevitable occurrence, not to be foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, its agents, employes or servants.” Then, they call attention to the fact that in Leland v. Empire Engineering Co., 135 Md. 208 , 108 A. 570 , this Court held that it tended to mislead the jury by merely informing them that the plaintiff was not entitled to recover if his injuries resulted from an unavoidable accident, without informing them what the law regards as such an accident; in Schapiro v. Meyers, 160 Md. 208 , 153 A. 27 , where a child was struck by an automobile at or near a street crossing, it was held that an unavoidable accident prayer was properly refused, the Court stating that, under the circumstances, the collision could clearly have been averted by care on one side or the other; and in Peoples’ Drug Stores v. Windham, 178 Md. 172 , 12 A. 2d 532 , Fogle v. Phillips, 191 Md. 114 , 60 A. 2d 198 , and State, to use of Whitaker v. Greaves, 191 Md. 712 , 62 A. 2d 197 , it was held, in substance, in each case that even when an unavoidable accident prayer is appropriate, it would be misleading unless unavoidable accident were defined. 1 From the above, they argue that the facts in the instant case clearly show that the accident could have been avoided by the exercise of proper care by one side or the ⁴⁹² other, i.e., the infant plaintiff or Lancaster, hence, under the previous decisions of this Court, an “unavoidable accident prayer” was inappropriate; but, even if such a prayer were proper, it was misleading because the court failed to inform the jury as to what the law considers an unavoidable accident. This argument would have great force, and, unquestionably, would be controlling here, if the trial court did, in fact, grant a conventional and formal unavoidable accident prayer, as it is apparent that the facts herein would not warrant such a prayer. However, we must examine the court’s charge as a whole to determine whether it fairly covered the different contentions of the parties, and what the court meant by the part quoted above, and objected to by the appellants.

As stated by the appellants, themselves, in their brief, “[t]he real question in this case * * * was whether or not the defendant [Lancaster], under all the circumstances, was negligent.” We turn now to the remainder of the court’s instructions to ascertain whether this question was fairly covered therein, Maryland Rule 554 b 1, and to see if the instructions were misleading or confusing. In order to do this properly, we find it necessary to refer to the charge in some detail. Near the beginning of his charge, the court informed the jury that, “[t]his case involves a question of primary negligence on the part of the driver of the taxicab,” and “negligence is a relative term depending for its determination in a particular case on all the circumstances surrounding that particular case.” After stating a few of the undisputed facts, he instructed them that the burden of proof was upon the plaintiffs to establish, by a preponderance of affirmative evidence, that Lancaster “was negligent; that is to say, that this cab driver did not exercise ordinary care in the operation of his automobile, and as a direct and proximate result of his failure to exercise ordinary care, struck the infant plaintiff.” The judge then explained the meaning of ordinary care. (It may be noticed that from this point in the charge until we reach that portion objected to by the appellants the instructions particularly tend to negate the idea of a conventional ⁴⁹³ unavoidable accident prayer.

Any emphasis in the charge will be supplied.) The jury were then instructed that if they found that the “infant plaintiff ran or walked in front of the taxicab in the middle of the block under circumstances where, with the exercise of ordinary care on the part of the driver of the taxicab, the striking of the infant couldn’t have been prevented, then the plaintiffs are not entitled to recover,” but, “if you find the defendant was negligent in the operation of the taxicab and that his negligence was the direct