Rush v. Lloyd

Hammond, J., delivered the opinion of the Court. In a suit to recover for damages suffered when a three year old child was struck by an automobile, the jury found for the defendant. The jury heard two versions of the accident which happened on an August evening about eight-thirty or nine. Plaintiffs’ witness said the child was crossing the street at the crosswalk and that there were no lights on the car, although it was dark.

Defendant and his witnesses say that it was so light headlights were not needed, but that the dimmers were on and that the child suddenly and unexpectedly darted out into the street some sixty feet from the corner. The location of the. nine-foot skidmarks corroborated the version of the defendant, who says he was driving “very slowly.” ⁹ Appellants rely chiefly on error alleged to be inherent in the court’s instructions on contributory negligence. He told the jury, midway in his charge, that the injured child was three years old and added “under the law a child of three years cannot be considered guilty of contributory negligence, but you are to consider the facts and circumstances concerning the matter and take them into your consideration in arriving at your verdict.” The court, before and after this portion of the charge, told the jury the real question in the case was whether the driver was negligent in coming across the intersection at the time and in the manner he did. Immediately before he had defined negligence, at some length.

It may well be that the court did not intend to qualify his statement that the child could not be guilty of contributory negligence but rather was saying that the jury must consider all facts and circumstances, including the propensities of very young children, in determining whether the driver was negligent, and that, at the time, the parties so understood the charge. In any event, the short answer to appellants’ present contention that there can be no qualification of the proposition that a three-year old child cannot, as a matter of law, be charged with contributory negligence—State v. Barlly, 216 Md. 94 , 101—is that there was no exception to the charge on this ground and therefore the point is not before us on appeal. Maryland Rule 554 d and e. Appellants’ subsidiary contentions are that the trial court erred in refusing to instruct that the driver “lost his right of way between intersections” if he was driving without headlights ; that it was improper to characterize the evidence so as to imply that the child came out suddenly from the sidewalk; and that the court erred “in telling the jury there was no evidence of excessive speed. * * *” The court instructed the jury that they must decide as a fact whether or not it was dark enough to require headlights and, if it was, whether the driver had lights on, and, if there w7as a violation of the statute (Code (1957), Art. 66^2,