Stafford v. Zake

Bond, C. J., delivered the opinion of the Court. The appeal is by an owner of a motor truck from a judgment for damages for injuries to a little girl of seven years, struck as the truck was being driven up a street or alley where she was playing. In Bruce Street, in Baltimore City, a street or alley running north from Lombard Street between Mount Street and Fulton Avenue, of 11.81 feet width in the bed, and with sidewalks of less than five feet each, the plaintiff below, Amelda Zake, was playing on a rear step of an ice struck stopped on the east side facing south, its front wheels partly against the northern end of the sidewalk on that side, 71.2 feet north of the rear building line of Lombard Street. As that ice truck was 7.5 feet wide, it necessarily occupied some part of the 11.81 feet street bed.

The truck of the defendant was driven north at a speed estimated by its driver, the only witness to the speed, at from five to ten miles an hour. William Brooks, aged nine years, a playmate, ran across the street ahead of the oncoming truck, and as he reached the other side called to Amelda to chase him, but when she had jumped down and run almost across the street, he saw the truck and called to her to “watch out.” She turned, saw the truck a little back of the standing truck, as she said, ran back across the street again, and was struck by the right ⁴⁶² fender of the defendant’s truck and injured. The driver had seen the boy run across, but did not see the girl, and knew nothing of her presence until he heard her scream. There was a contention that the driver could be found negligent in driving on his left in the street, but his truck was six and two-thirds feet wide and he had only about eight feet of the whole street bed to drive in, and necessarily drove to his left to pass the standing truck.

And apparently he would have done equal damage if he had not been so far to his left; he would have struck the child further toward the middle of his truck. His position was not therefore a factor in the accident. We find no evidence of negligence in it. R. & L. Transfer Co. v. State, 160 Md. 222, 226 , 153 A. 87 .

Evidence of negligent speed was contended for from the testimony that the oncoming truck was just beyond the standing truck . when Amelda turned and saw it. As the standing truck was nineteen feet long, that testimony places the defendant’s truck at about twenty feet or a little more from the child, a space which at ten miles an hour it would cover in about one and half seconds, or at five miles an hour in three seconds. The child ran back the width of the truck in the time consumed, and the truck stopped in a few feet. This evidence alone affords no support for a finding of negligent speed.

Plaintiff’s witnesses also testified to a skidding for two or three feet before the truck stopped, and a truck moving so slowly as five or ten miles an hour would not have the momentum to skid in stopping. An inference of negligent speed from that evidence, however, is opposed by the other direct evidence of the space covered in the time it was seen by the children, and that crossed by the child meanwhile, and the short stop of the truck. The fact of skidding is not alone evidence of negligence, and the court is of opinion that the whole evidence cited to establish excessive speed would not support an inference of it by a jury. Wolfe v. State, 173 Md. 103, 116 , 194 A. 832 ; Fillings v. Diehlman, 168 Md. 306, 309 , 177 A. 400 . ⁴⁶³ The jury was instructed that if it found the driver guilty of negligence on a last clear chance to avoid the accident the verdict should be for the