Mullikin v. Mayor of Baltimore

Stockbridge, J., delivered the opinion of the Court. On October 23rd, 1914, between the hours of four and five in the afternoon the infant plaintiff (appellant here) was playing hockey .with. a number of companions in the bed of Windsor avenue, a public highway of Baltimore City: - At the same time H. Helson Gambril, an inspector in the office of the water engineer of the city, was returning to his home on a motorcycle, at a speed of between five and seven miles an hour, having completed his day’s work. His route lay along Windsor avenue. As he approached the group- of boys, of which the plaintiff was one;, he reduced his speed, sounded his horn and called out to the boys who were before him.

The plaintiff apparently did not hear him, nor the warning of his approach given by some of the plaintiff’s comrades. Gambril endeavored to avoid colliding with the plaintiff by swerving the course of his machine, but when not more than three or four feet from the plaintiff, the latter jumped directly in front of the machine, and in endeavoring to avoid striking the lad Gambril again changed the direction of the machine, but the left handle bar hit the boy, throwing him to the pavement, where he struck his head- and was severely injured. To recover damages for that injury this suit was brought.' The record is chiefly noteworthy for the fact that there is no conflict of evidence presented. The sole exception is a blanket one to the ruling of the Court on the prayers.

The ground mainly relied on by the appellant is the alleged error of the trial Court in submitting to the jury the ³⁶⁵ question of contributory negligence in the '5th, 7th, 8th and 10th prayers. The record does not disclose any objection taken in the trial Court such as that now presented here. Certainly no special exception was reserved upon the ground of the lack or insufficiency of evidence tending to show contributory negligence. The Code provides (Art, 5, see. 9) : “Nor shall any question arise in the Court, of Appeals as to the insufficiency of evidence to support any instruction actually granted, unless it appear that such question was distinctly made to and decided by the Court below.” This section has been frequently applied by this.

Court. Gunther v. Dranbauer, 86 Md. 1; Sturtevant v. Dugan, 106 Md. 615 ; Stewart Taxi Serv. Co. v. Roy, 127 Md. 79 . If there was no other reason, the judgment appealed from would have to be affirmed.

There is another and controlling reason which leads to the same result. The first two prayers offered on behalf of the City asked for a directed verdict for the defendant; the first being in form a general demurrer to the evidence, and the- second to the like effect, upon the specific ground of the failure to show any act of negligence such as to warrant the submission of the ease to the jury. These prayers were refused by the trial Court. This was error, but not such error as involves any reversal of the judgment.

As has already been said there is no real conflict in any of the evidence as. to the wav in which the accident occurred. The plaintiff himself on the stand testified, that ho did not remember anything about the accident; that he did not recollect hearing a motorcycle approach, by the blowing of a horn, or any signal or