Ottenheimer v. Molohan

AixiíINS, J., delivered the opinion of the Court. On August 9th, 1921, Harold S. Molohan, aged six .and a half years., the infant plaintiff in this case, was struck by the automobile of Bernard M. Ottenheimer, the defendant, on the Washington-Baltimore State Bead, near Cottage City, in Prince George’s County, Maryland. Suit was brought by the infant, by his father and next friend, against Otten-heimer, and a verdict rendered by a jury in favor of plaintiff for $950, on which judgment was entered. This appeal is from that judgment.

The only bill of exception is. to the ruling of the trial court on the prayers. The road at the point of the1 accident is. twenty feet wide:, of which about sixteen feet is. of asphalt or macadam, and two feet on each side, spoken of by witness as coping or shoulders, is concrete. So- far as. can bei made out from the testimony, this so called coping is merely a widening of the road as originally built. On the right side of the road going towards Baltimore is a cinder drive-way in front of a gasoline station, located near the place where the child was: struck.

This, drive-way was made by the owner of the station as a convenient means of approach to. it, and is used by automobiles going in. It extends, about seventy-five fe:e.t each way from the station towards Baltimore and Washington. The defendant testified that he, with a, representative of his firm, Mr. Neville, was returning to1 Baltimore from Washington “riding leisurely along, and when we got to Cottage City, just before this accident occurred, there was. a machine right in front of us which was about three or four lengths from, my ¹⁸⁰ machine, and as this machine passed I noticed a couple of boys out on the cinder path to the right of the road; I did not know whether they were playing catchers or tags, but, anyhow, this little boy happened to jump away from the other boy and immediately in front of my machine. “Q. At the time the little boy jumped in front of your machine how far was he in front of you ?' Ans. Night immediately on top' of me; my machine was going along and I just seen the boys playing, and the first thing I knew I struck him.

Q. State how many feet directly in front of your machine ? Ans. He was five or six feet away when I first seen him. Q. How fast were you going?

Ans. You cannot go-through Cottage City fast; moderate speed; about eighteen miles. Q. What part of the road was your machine on? Ans.

I was to the right of the middle of the road, the right hand side, where you have to go-. Q. It was stated by the plaintiff’s counsel * * *. ' You were off the asphalt * * *. Were you on the shoulder or out on the cinders? Ans.

No, sir. Q. What did you do- as soon as the little boy darted in front of you ? Ans. I’ did not know anything until I heard a thump-, and Mr. Neville, who was with me, he said, e Joe, you must have struck the boy ?’ I stopped as soon as I could get out of our .machine, and Mr. Neville and I went back and seen the boy lying on the road, and he was unconscious,” etc. The witness further said he thought, when he went back, the boy’s body “was.lying on the concrete road; maybe his arm or his head or something might be on the cinders, but most part of him was lying on the cement road;” that witness travelled three or four lengths of the machine after he threw his brakes before he stopped. “Of course I did not expect to hit the child, so I was not prepared to stop immediately, but I stopped as soon as I could.

Q. Were your brakes working properly? Ans. Yes, sir, I am very particular about my brakes, and I don’t go without good brake®.” He further testified that at the time of the accident he had been driving five years; that he goes to Washington two or three times a week, generally over that same road. ¹⁸¹ On cross examination witness said, before be approached Cottage City, 'he knew he was coming to a thickly settled community. He explained that when he said he first saw the boy when he was fire or six feet in front of him he was referring to the time of the accident; before that he saw the two boys-playing. “They were out in the cinder path playing before I got there, I don’t know what, pulling and jerking with one another and one boy darted away in front- of the machine.” His estimate of the distance he went after the accident was from forty to sixty feet, and of the distance the boys were from him when he s.aw them playing, ten or fifteen feet. “Q. Ton could see they were young children five or six years of age ?

Ans. Tes, sir. Q. Did you slow down because of the danger of the child jumping in front of the machine ? Ans.

I do- not expect children to run in front of my machine; they were on the cinder path. Q. How far on the cinder path were they? Ans. About four feet.

Q. When you saw the boys did you slow down so that if one did jtrmp in front of you you could stop without striking them? Ans. I was going my usual pace. Q. What was your usual pace ?

Ans-. About eighteen miles an hour. Q. Ton are very particular about your brakes and you kept them in first class order? Ans..

Tes, sir. Q. Is. it not a fact that anyone can stop a car with good brakes in a whole lot less than forty to sixty feet? Ans.. Tes, sir.

Q. Why did not you? Ans. I was surprised at hitting the bay, nervous at hitting the boy, and I didn’t stop- right away. Q. When you saw him jump in front of you you did not do anything at all but you struck him?

Ans. I was going slowly and the boy darted out in front of me and it was. impossible to avoid it. Q. Did you try to turn the machine out of the way?1 Ans. I could not do it; I could not do anything.” Joseph F. Neville testified that they were going along at a very moderate rate of speed, a car was ahead of them and there was no other traffic on tire road; the two boys were on the cinder path; witness was on the right side of the car and saw the boys; “the little one darted out like a shot out of a gun”: witness jumped and said, “My Hod, you will hit ¹⁸² that boy.” “Q. Where was the car at that time?

Ans. Within five.or six feet of the boy.” Witness further testified that the car was on the asphalt, “not on the shoulder at all, but in the road proper,” that witness supposes the oar went forty or fifty feet after it struck the boy; witness was so certain they were not on the concrete shoulder ‘'because there was no machine, only one previous to us and nothing was in the way and there was no necessity of Mr. Ottenheimer driving that close and I know he is an exceptionally careful driver".” The oar in front of them was .about thirty feet .ahead; witness saw the children before the first car passed them; “One standing outside and the other standing in the cinder path.” Q. What were they doing? Ans. I don’t know; sky-larking or fooling like children will do.

Q. Was it possible for Mr. Ottenheimer to see them ? Ans. He could not see them clear as I did because he was on the other side and I was on this side; it was an open car1. •Q. The other machine was thirty feet-ahead ? Ans.

Yes, sir. Q. After that machine passed Mr. Ottenheimer could see them? Ans. Yes; he would have a clear view then.” There was no witness for the plaintiff who saw the collision •except the injured boy, who was not examined in regard to it.

Richard H. Mansfield, a detective sergeant of the Washington Police Department, heard “a loud screeching of brakes,” .and looking out his, window saw the machine pulling up in front of his house; he looked up the road and saw the child lyingi on the road about one hundred to one hundred and twenty-five feet from the machine; witness asked Mr. Ottenheimer, on the way to- the hospital, how the accident happened, and he said he didn’t see the child. Otten-heimer denied that he made such a statement. Mansfield further testified that the road from the place of the accident towards Washington is straight for the distance of an eighth of a mile; that the road at Cottage- City was at the time of the accident very much built up; that the boys head was lying along the outer edge of the coping. ¹⁸³ Richard A. Shreeve, Jr.,-testified that he owned the filling station in