HAMMOND, J., delivered the opinion of the Court.
Aggrieved by the verdict of a jury in favor of the driver and owner of the car which struck him, an eight-year-old boy appeals by his father as guardian, urging error in the trial court's charge to the jury.
In Taylor, State for Use of v. Barlly, 216 Md. 94, 99, 100, the injured boy was in the street when the motorist, who was exceeding the speed limit, was some one hundred forty feet away with unobstructed vision. We held that the boy was entitled to have the jury instructed that it was the driver's duty, even between intersections, to keep a proper lookout and that children of tender years do not use the same degree of care and caution for their own safety as do adults, saying: "The appellants were entitled to have the jury instructed upon
A litigant is entitled to have his theory of the case presented to the jury only if it is a correct exposition of the law and there is testimony in the case which supports it. Cf. Nance v. Kalkman, 223 Md. 564. Undoubtedly a driver must exercise greater caution to avoid harming a child who is in a place or situation of immediate or potential peril than he would in the case of an adult, because a young child is less able and less likely to protect himself than the adult. This does not mean that the same duty exists when the child puts himself in the position of peril by suddenly darting from a place of safety into the path of the car so swiftly that the motorist, who has been proceeding with due care, does not see him in time to avoid striking him, nor does it mean that the motorist must abstractly anticipate that safety will be suddenly and blindly left for peril.
In Barlly the basis of its holding was succinctly stated: "The law requires greater caution from the operator of a motor vehicle who observes a child in the middle of the street than one who sees an adult; and, if his vision were unobscured for 100 feet, or more, it places a duty upon him to see the child. * * * What we have said does not, in any way, alter the previous rulings of this Court in such cases as Cocco v. Lissau, 202 Md. 196, 202, 95 A.2d 857, wherein it was held that if a child darts out in front of an approaching automobile when the driver is traveling at a reasonable rate of speed and obeying the rules of the road, so that with the exercise of reasonable care he is unable to avoid running into the child, he is
In the case before us, as in Finlayson, the essential and significant issues presented for determination by the jury were whether the driver in the exercise of due care and caution in such amount as the situation demanded should have seen the injured boy before he did and could reasonably have done more than he did to have avoided the accident, and whether the boy was guilty of contributory negligence. The court instructed on the issue of primary negligence in the words of the opinion in Finlayson, and on contributory negligence in terms which appellants do not challenge. We said in Barlly (at page 100 of 216 Md.): "There is no obligation upon the trial judge to point out, in minute detail, all of the reciprocal duties and obligations of the respective parties to a case, provided the subject under discussion by the judge is fully and comprehensively covered in his charge to the jury * * *."
We think the issues of primary and contributory negligence, including the relative nature of the statutory right of way of the motorists between intersections, were fairly and adequately covered by the charge and find no reversible error.
Judgment affirmed, with costs.