Robinson v. Hall

Prescott, C. J., delivered the opinion of the Court. This case arose when the 6 year old (at the time of the accident) pedestrian plaintiff-appellant instituted suit against the motorist defendant-appellee for damages for injuries resulting from a collision at an uncontrolled street intersection in Baltimore City. Questions of primary and contributory negligence were submitted to the jury, and, after an adverse jury verdict and the entry of judgment against him for costs, the plaintiff has appealed. He contends that the trial judge erred: (1) in its instruction “concerning the degree of care required in an emergency”; and (2) in refusing to grant his Nos. 2 and 3 prayers.

The parties, commendably, have agreed upon many of the facts. The accident occurred at about 4:30 p.m. on a clear afternoon in September, 1961, at the uncontrolled intersection of Baker Street (42 feet wide, running east and west) and Mc-Kean Avenue (42 feet wide, running north and south). The streets at this location were level, and the sidewalk on the west side of McKean is IS feet wide. No pedestrian lines were painted in the street.

Cars were parked on the north and south sides of Baker west of McKean, and traffic in Baker Street was proceeding in a single line both east and west. Immediately prior ¹⁹ to the accident, the young plaintiff had been to a confectionary store, and at the time of the accident was crossing from the northwest corner to the southwest corner of the intersection. When the accident occurred, the defendant, accompanied by one Arthur Flax, was operating his automobile easterly along Baker. Only two eyewitnesses to the accident testified.

The appellee stated that he was proceeding easterly on Baker. When he reached Monroe, a street 170 feet immediately west of Mc-Kean, he stopped for a red light. The light changed and he proceeded toward McKean at a speed of 15 to 20 miles an hour. When he had nearly arrived at the intersection, a car, travelling westerly on Baker, passed him, and, as it did, the plaintiff ran from behind this car in front of his.

The first time he saw the child, the appellant was less than a foot away. He immediately applied his brakes and stopped within a couple of feet, but his car came into contact with the boy. He got out and went to the child, who was lying about V/2 feet in front of his vehicle, which was about 15 feet north of the south curb of Baker and about 9 feet west of the west curb of McKean. A Mrs. Frazier was produced by the appellee.

She was driving her car westerly on Baker and had nearly arrived at Mc-Kean. She saw a car ahead of her traveling west on Baker as it passed appellee. She saw the appellant “dash” out of the store, and “without stopping or looking” run into the street. He ran behind the car that was proceeding west on Baker (at a time when appellee’s vehicle was just 3 to 4 feet away) directly into the path of appellee’s automobile.

I Appellant attempts to make this contention a two-pronged challenge to a portion of the court’s instructions. He states that the court failed to permit the jury to determine whether appellee was confronted with an emergency at the time of the accident, and, even if an emergency existed, the court should have instructed the jury that the emergency rule cannot be invoked by one whose negligence has created the emergency. There can be little doubt that if there be evidence in a case legally sufficient to support a finding that an emergency existed, the existence, vel ncm, of such emergency, generally, becomes a ²⁰ question of fact for the jury. Lehmann v. Johnson, 218 Md. 343 , and cases therein cited.

And there also can be little doubt that one, who by his own wrong has brought about an emergency, cannot invoke the emergency rule. Baker v. Shettle, 194 Md.