Maas v. Sevick

BOND, C. J., delivered the opinion of the Court. The owner of a motor truck and its driver appeal from a judgment against both of them for damages from injuries caused to a girl child of five years while the truck was passing along an alley in Baltimore City. No witness saw the truck strike the child, but she was injured, and a charge of negligent cause in the driving is based upon estimates of her position and that of the truck just before and after the accident. The child had been playing with others in the back yard of a house of a Mrs. Vester, on the east side of Parklawn Avenue, north of Erdman Avenue, and came into the alley just as the truck came along.

The truck had come east on Erdman Avenue, crossed a rough vacant lot to the south of the Parklawn Avenue houses, and, making a short turn, entered the alley driven northerly. It had been so driven through the alley a number of days. There was evidence that it was driven fast on Erdman Avenue, but nothing as to its speed in the alley can be inferred from that fact, and the driver’s testimony that he was moving at a rate of eight to ten miles an hour is the only testimony to it. A short stop to which all the witnesses testify tends to confirm his estimate.

The alley at the site is twelve feet one inch wide, paved with concrete, and without sidewalks. After the child was hurt, she was carried to a hospital, and according to the testimony of witnesses whd were with her, the driver, a police officer and a neighbor, she was conscious, talked plainly, and repeatedly told her mother and the officer that she ran from the yard into the truck, but the mother testified that the child was at that time in agony, screaming for her mother and did not make any statement; and in this there was a dis ⁴⁹³ pute which only the jury could settle. But the difficulty in the case is in finding evidence that, contrary to this explanation, the accident was caused by negligence in the driver. It happened quickly, in a short space behind one nineteen-foot yard, and the time and distances estimated in the evidence were all short.

Evidence of such a negligent cause is sought chiefly in the testimony of a Mrs. Vogel, who from time to time looked up at the children, among whom was one of her own, from work in her kitchen next door. The yards in the block are nineteen feet wide, and have wire fences about three feet high, and Mrs. Vogel had a clear view. She testified that just before the accident she saw the plaintiff walking up the side of the alley in the same direction as the oncoming truck, and pretty close to the fence. Mrs. Vogel did not see the truck coming, but obviously it was there.

She heard no horn. Then, “no sooner had I turned my back than I heard the holler and the brake. * * * I had hardly turned my head when I heard the holler. * * * It would not have been more than three or four seconds.” Counsel argue that the jury might take this estimate of seconds elapsed as exact, but it was not made as an exact estimate, and the court cannot find that in this context it would afford the jury a basis of an exact estimate on their part. The turning of the witness’ back or head would be much quicker. As to the position of the plaintiff before her contact with the truck, and that of the truck after the accident, the witnesses differ.

The plaintiff’s witnesses placed her at about midway the yard which, according to a plat exhibited, would be about five feet up from the gate, which is toward the south corner; and at that point she stood after she had been hurt. Mrs. Vogel did not know the exact position of the truck when stopped, but was inclined to place it at her gate, next to the north, a distance of nineteen feet, or the truck length, beyond the gate to the yard where the children had been