Schapiro v. Meyers

Bond, C. J., delivered the opinion of the Court. The defendant, in a suit by a pedestrian injured at a street crossing by an automobile driven by the defendant, seeks a review of rulings on prayers for instructions. The plaintiff, ²¹⁰ a small boy, testified that as he was walking across at the intersection of three streets in Baltimore City, he was struck unexpectedly. And witnesses on his behalf testified further that he started across in a proper manner, and that the speed of the oncoming automobile was increased so that it reached the boy more quickly than would be expected.

Witnesses for the defendant, on the other hand, testified that the boy suddenly started running from the sidewalk diagonally across the intersection as the automobile came along properly, and ran into the side of the automobile. A policeman testified that the boy said he had so run into the automobile. The first ruling objected to is the refusal of a prayer for an instruction, the defendant’s second prayer, that if the injury was found to have resulted from an unavoidable accident unmixed with negligence on the defendant’s part, the verdict should be for the defendant. But as such a coming together of a pedestrian and an automobile could, under the circumstances, clearly have been avoided by care on one side or the other, plaintiff or defendant, the description of unavoidable accident appears to be inapplicable, and rejection of the prayer was proper for that reason.

Dwyer v. Chew, 149 Md. 281, 285 , 131 A. 350 . A third prayer was for an instruction commonly granted in similar cases. See, for instance, the defendant’s second prayer in the case of Zipus v. United Railways, 135 Md. 297 , 108 A. 884 . In substance, it is that there can be no recovery unless the plaintiff has shown by a preponderance of the evidence that the accident was caused by negligence of the defendant, and that the law makes no unreasonable demand, and will not consider the defendant guilty of negligence in failing to take precautions which in the opinion of the jury no person of ordinary prudence would have taken under the circumstances.

The instruction *was refused in this instance as academic and not helpful. The prayer should be considered together with two others. On a fifth prayer of the defendant, the jury was instructed that if they believed that the boy stepped or ran into the automobile at a time when it could not be arrested in its course and under circumstances ²¹¹ where with ordinary care on the part of the driver the car could not be stopped in time to avoid collision, the verdict must he for the defendant. A sixth prayer, refused by the court, was for an instruction that for a mere accident unmixed with negligence or fault no action will lie even though .an injury has been done, and that unless the jury