HAMMOND, J., delivered the opinion of the Court.
The jury found for the defendant driver in a suit on behalf of a boy almost five years old who was struck by her automobile. The claim on appeal is that the trial judge erred when he failed to instruct the jury as requested that if the driver "failed to exercise that higher degree of care that she would have to an infant than would ordinarily be required, then the jury's verdict must be for the plaintiff."
About six-thirty p.m. on a clear day in July 1957, the defendant, a housewife en route to her home nearby, was driving on Fenway North, a twenty-foot wide one-way street in a thickly populated residential area in Essex in Baltimore County in which there were many children; a street sign several blocks away, of which the defendant was aware, urged caution because children were at play. She testified that she had been proceeding at about 15 miles an hour — the speed limit was 25 miles per hour — so as to make a left turn at Woodale Road, a short distance ahead, when two boys about ten years old dashed from her right across the path of her car, causing her to apply her brakes and skid to a halt. (A police officer testified that there was one twenty-eight foot skid mark and a parallel shorter one.) She called out a reprimand to the boys and then had just started up again when she noticed the infant plaintiff's head appear from between the parked cars at her right and saw the child run into the right front part of her car before she could stop.
Two disinterested witnesses, who were seated in one of the parked cars, said they heard the sound of brakes just to the left of their car, and then observed the little boy running out in front of the car parked just ahead of theirs. One of these witnesses said the boy took about three steps and hit defendant's car at its right front corner, and that the car went five feet or less after the impact. The point of impact was some four to six feet from the line of parked cars and was either in, or just outside, the crosswalk.
In his charge, the trial judge submitted to the jury the
The appellants concede that the charge would have been proper if the plaintiff had been an adult, but say that under the holding in State, Use of Taylor v. Barlly, 216 Md. 94, the jury should have been instructed that the defendant, having seen the two boys run across in front of her car and realizing the large number of children in the area, should have exercised a greater duty towards the infant plaintiff than she would have been required to exercise if he had been an adult.
Maryland Rule 554 requires in Section d that a party state distinctly the error of any instruction to which he objects and "the specific grounds of his objection." Section e provides that the party assigning error on appeal "shall be restricted to (1) * * * the particular failure to instruct distinctly objected to * * * and (2) the specific grounds of objection distinctly stated * * *." The instructions requested by appellants, in excepting to the charge, could not properly have been granted as requested since they called for a higher degree of care to an infant than to an adult. The Maryland law has been stated to be that the duty owed by the driver of an automobile or motor truck to children is ordinary care and caution in such amount as the facts of the particular situation demand. Havermale v. Houck, 122 Md. 82, 89; Miller v. Graff, 196 Md. 609, 616; Abbott v. Railway Express Agency, (4th Cir.), 108 F.2d 671. All of these cases involved children under six years of age.
As Judge Barrett pointed out below, it was uncontradicted in the case, and indeed stated by appellants' counsel in his opening statement, that the child darted out between parked
Judgment affirmed, with costs.