Taylor v. Armiger

Smith, J., delivered the opinion of the Court. Murphy, C. J., concurs in the result and filed a concurring opinion at page 653 infra. We shall here reverse a trial court decision that a child five years and eight days old was guilty of contributory negligence as a matter of law on the ground that he failed to obey the mandate of Maryland Code (1957, 1970 Repl. Vol.) Art. 66V2, § 11-404 that he “stop and yield the right-of-way to all vehicles approaching on the highway.” He was on a tricycle which was held to be a vehicle within the meaning of Art. 66V2, § 1-209.

In reaching our conclusion we shall not decide the question of whether a tricycle was a vehicle within the meaning of the then existing statute but shall hold that the ⁶⁴⁰ trial judge erred when he impliedly required this child to adhere to the standard required of an adult without permitting the jury to give consideration to the matters normally considered in judging contributory negligence on the part of a child. Timothy R. Taylor was born April 11, 1967. On April 19, 1972, he was struck near his home in Rising Sun, Maryland, by a vehicle operated by Neysa M. Armiger, one of the appellees. The child’s father sued Mrs. Armiger and her husband on behalf of the child and on his own behalf for the injuries sustained.

The matter came on for trial before a jury in the Circuit Court for Cecil County. The defendants’ motion for a directed verdict was granted at the close of the whole case, thus producing this appeal. We granted certiorari prior to the time the case was heard in the Court of Special Appeals. We must first consider whether sufficient evidence of primary negligence was adduced to warrant consideration of the case by the jury notwithstanding the fact that the trial judge decided that the child was guilty of contributory negligence.

This is so because, as Chief Judge Sobeloff said for the Court in Burkert v. Smith, 201 Md. 452, 454-55 , 94 A. 2d 460 (1953), “even if [the circuit court] should be found to have been in error in holding the plaintiff guilty of contributory negligence the action may still not be disturbed if there was no sufficient evidence of the defendant’s negligence to require submission to the jury.” In considering the propriety of the grant of the motion we are obliged to resolve all conflicts in the evidence in favor of the plaintiffs (the child and his father in this instance) and to assume the truth of all evidence and such inferences as may naturally and legitimately be deduced therefrom which tend to support their right to recover. Gillespie v. R & J Constr. Co., 275 Md. 454, 456 , 341 A. 2d 417 (1975); Levine v. Rendler, 272 Md. 1, 12 , 320 A. 2d 258 (1974); Webster v. Larmore, 268 Md. 153, 168 , 299 A. 2d 814 (1973); Baltimore & O.R.R. v. Plews, 262 Md. 442, 449 , 278 A. 2d 287 (1971); Beck v. Baltimore Transit Co., 190 Md. 506, 509 , 58 A. 2d 909 (1948); and cases there cited. ⁶⁴¹ The accident took place at about 6:30 p.m. when the child, riding on his plastic tricycle, entered a street in Rising Sun from a private driveway. The tricycle was described as being “approximately twenty inches high, total, from the ground to handlebar.” The diameter of its front wheel was about 16 inches and that of its two rear wheels was about 9 inches.

It had no brakes. The accident took place in a residential neighborhood where the speed limit was 25 miles per hour. An expert witness called by the plaintiffs testified that the minimum speed of the Armiger vehicle at the time was 36 miles per hour. This was based upon his reconstruction of the accident from photographs and a visit to the scene about 18 months after the accident.

Mrs. Armiger was familiar with the neighborhood, the fact that children lived on the street, and that the speed limit was 25 miles per hour. In fact, her brother lived around the corner from the scene of the accident. A 25 mile per hour speed limit sign was conceded to have been in the area of the accident. In dispute was whether on the day of the accident there was erected immediately above that sign a sign which noted the presence of children and admonished motorists to drive slowly.

Mrs. Armiger was not certain that it was present on the day of the accident. However, a neighboring property owner, Eugene A. Uhlan, testified that such signs had “been in that approximate location for as long as [he] cfould] remember.” For purposes of our evaluation of the case we must assume the presence of the sign at the time of the accident. In the typical “dart out” case the child is a pedestrian. The applicable principles in evaluating primary negligence on the part of the motorist are the same, however.

In Miller v. Graff, 196 Md. 609 , 78 A. 2d 220 (1951), Judge Delaplaine said for the Court: “It is true that excessive speed of an automobile may not of itself be the proximate cause of an accident, but in some circumstances it may constitute negligence, if it directly contributes to the accident. Ottenheimer v. Molohan, 146 Md. 175, ⁶⁴² 184 , 126 A. 97 ; Sun Cab Co. v. Faulkner, 163 Md. 477 , 163 A. 194 ; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 27 , 190 A. 768 ; Bozman v. State, for Use of Cronhardt, 177 Md. 151, 154 , 9 A. 2d 60 . Moreover, it is a criminal offense for any person to operate a motor vehicle over any public highway of the State recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger the property and life or limb of any person. Code Supp. 1947, art. 66V2, § 156.” Id. at 618.

There was testimony in that case that a taxicab was traveling at a speed of about 45 miles per hour in a 25 mile per hour zone within a residential district, that a pedestrian saw the child’s peril before the driver saw it and tried to prevent the accident by waving to the driver to stop, and that the driver applied his brakes too late to avert the accident. The Court found the evidence sufficient to admit of an inference that the proximate cause of the accident was the driver’s unlawful speed and lack of care. More recently, in Alina v. Raschka, 254 Md. 413, 418 , 255 A. 2d 76 (1969), Judge Marbury observed for the Court that we have “stated on numerous occasions that if a child darts out in front of an approaching vehicle when the driver is traveling at a reasonable rate of speed and obeying the rules of the road so that with the exercise of due care he is unable to avoid hitting the child, the driver is not liable for any injuries sustained by the child.” (Citing cases.) In this instance the testimony supports the inference that the defendant driver exceeded the speed limit by 11 miles per hour in a residential neighborhood in which she knew that children resided and where a sign called attention to the presence of children. The accident occurred on a day and at an hour when one might expect children to be playing outside of their homes.

We have no difficulty in concluding under our prior cases that this constituted sufficient evidence to warrant an inference of primary negligence. ⁶⁴³ Evidence adduced relative to the intelligence and understanding of the infant plaintiff was confined to testimony of his mother on cross-examination. She said that she had told her sons that they were not to play in the road and that she was satisfied that they understood her instructions. She also stated, “They were permitted to go down the sidewalk and down the gutter area until they were across from Uhlan’s [where the accident took place] and go across the road to Uhlan’s yard if they were to play with Susan [Uhlan], but they were not to ride down the road.” The record then is: “Q. Well, you were satisified that your sons understood they weren’t to race their vehicles out into the road? A. I am satisfied they knew they were not to go out in the road to play, but I also realize that when they are playing with another child, they may temporarily forget what they are constantly reminded of when they’re in our yard. “Q. But you would say that your reminders to them about going in the road were of a constant nature?

A. Yes. “Q. You’re satisfied that so far as they would have been in your yard, they would have remembered your constant — “(Mr. Johnson) Objection, Your Honor. “(The Court) Overruled. “A. I think they would have, because I would have been there to remind them again. “Q. Do I understand you to say that generally they knew that they were — the tricycles were not to be used in the roadway for any purpose? A. Yes.” The above is all of the evidence before the trial court on this subject. It will be seen immediately that we know nothing of the intelligence or the degree of maturity of this boy nor do we know anything as to whether he was or was not normally an obedient child. Code (1957, 1970 Supp.) Art. 66V2, § 11-404, as of the date ⁶⁴⁴ of the accident, provided that “ [t]he driver of a vehicle about to enter. . . a highway from a private road or driveway shall stop and yield the right-of-way to all vehicles approaching on the highway.” The street in question was a highway as that term is defined in Art. 66'/2, § 1-132.

We have given this section and its predecessor the same interpretation as what is now § 11-403 pertaining to “through highways.” See, e.g., Quinn Freight Lines v. Woods, 266 Md. 381, 386 , 292 A. 2d 669 (1972); Privett v. Hauswald Bakery, 258 Md. 218, 223 , 265 A. 2d 473 (1970); and Grue et al. v. Collins, 237 Md. 150, 157 , 205 A. 2d 260 (1964). As is fully explicated in Hensel v. Beckward, 273 Md. 426 , 330 A. 2d 196 (1974), and Creaser v. Owens, 267 Md. 238, 249 , 297 A. 2d 235 (1972), “the absolute and unequivocal duty of the unfavored driver to stop and yield the right of way to all traffic during his entire passage through the favored highway is only tempered by the doctrine of last clear chance or a finding of contributory negligence on the part of the favored driver.” No question of last clear chance was presented in this case. The trial judge based his ruling upon Richards v. Goff, 26 Md. App. 344 , 338 A. 2d 80 , cert. denied, 276 Md. 743 (1975). In granting the motion he said: “The essential facts in the case at hand are almost identical with the factual situation in the Richards’ case, except that in this case the Plaintiff is a five-year old boy riding a tricycle whereas in the Richards’ case the Plaintiff was a seven-year, eight-months old boy riding a bicycle. “As in the Richards’ case, the basic uncontroverted facts in this case are that Timothy Taylor, on a tricycle, entered Pearl Street, a public street or highway, from a private driveway, and ran into an automobile operated by the Defendant, Mrs. Armiger, on the public highway.

As to those facts reasonable minds could1 not differ. The tricycle upon which the Plaintiff was riding fits within the definition of a ‘vehicle’ as defined in Code, Article 66V2, Sec. 1-209. Therefore, the ⁶⁴⁵ ‘boulevard law’ applies, and the Plaintiff, the unfavored driver, is barred from recovery against the Defendant, the favored driver. The Defendant’s motion for a directed verdict must therefore be granted and judgment is hereby entered in favor of the Defendant.” The decision of the trial judge obviously was founded upon the theory of contributory negligence.

A vehicle is defined by Art. 66V2, § 1-209 as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.” As the trial judge stated, Richards involved a collision between an automobile and a bicycle. The bicycle rider, seven years and eight months old at the time of the accident, entered a public higlrway from a private driveway. Code (1957, 1970 Supp.) Art. 66V2, § 11-1202, as it read at the time of the accident in that case, provided that “ [ejvery person riding a bicycle upon a roadway shall be granted all of the rights and subject to all of the duties applicable to the driver of a vehicle by th[e] subtitle [entitled ‘Operation of Bicycles and Play Vehicles’], except as to special regulations in th[at] part and except as to those provisions of [Art. 66'/?] which by then-nature can have no application.” The Court of Special Appeals “h[e]ld that the boulevard rule compelled] the conclusion that as a matter of law James Goff was negligent.” As we observed in Weissberg Corp. v. N. Y. UW Insur., 260 Md. 417, 421 , 272 A. 2d 366 (1971), “ [t]here is no shortage of cases defining the word ‘vehicle.’ ” We have found no case that has defined a child’s tricycle as a vehicle. However, for purposes of this case, we do not find it necessary to decide whether such a tricycle is or is not a vehicle.

The trial judge here used the same standard to determine whether this five year old child was guilty of contributory negligence as he would have used for an adult. This Court held in State, Use of Taylor v. Barlly, 216 Md. 94, 102 , 140 A. 2d 173 (1958), “that a child, 5 years of age or over, may be ⁶⁴⁶ guilty of contributory negligence,” although “bound only to use that degree of care which ordinarily prudent children of the same age, experience and intélligence are accustomed to use under the same circumstances, and they assume the risk only of dangers, the existence of which they know, or which, in the exercise of this degree of care, they should have known.” The lowest age at which we appear to have held a child contributorily negligent as a matter of law is 11 years in Kane v. Williams, 229 Md. 59 , 181 A. 2d 651 (1962), where he was found to have ignored a stop sign applicable to him on a bicycle. Some courts have established seven years of age as a minimum age below which a child is held to be incapable of all negligence. W. Prosser, Law of Torts § 32 (4th ed. 1971) says on this subject: “Although other limits have been set, those most commonly accepted are taken over from the arbitrary rules of the criminal law, as to the age at which children are capable of crime.

Below the age of seven, the child is arbitrarily held to be incapable of any negligence; between seven and fourteen he is presumed to be incapable, but may be shown to be capable; from fourteen to twenty-one he is presumed to be capable, but the contrary may be showm. These multiples of seven are derived originally from the Bible, which is a poor reason for such arbitrary limits; and the analogy of the criminal law is certainly of dubious value where neither crime nor intent is in question. The great majority of the courts have rejected any such fixed and arbitrary rules of delimitation, and have held that children well under the age of seven can be capable of some negligent conduct. Undoubtedly there is an irreducible minimum, probably somewhere in the neighborhood of four years of age, but it ought not to be fixed by rules laid down in advance without regard to the particular case.

As the age decreases, there are simply fewer ⁶⁴⁷ possibilities of negligence, until finally, at some indeterminate point, there are none at