[No. 247, September Term, 1962.]

231 Md. 237 (1963)

189 A.2d 640


Court of Appeals of Maryland.

Decided April 3, 1963.

Attorney(s) appearing for the Case

Samuel F. Ianni, with whom was John L. Schroeder on the brief, for appellants.

Frank P. Flury for appellee.

The cause was argued before BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY and SYBERT, JJ.


A six year old child was struck by an automobile driven by the appellee near the center of the 24 foot road in front of his home between crossings. The appeal challenged the court's action in granting a judgment N.O.V. We find no error. There was some conflict in the testimony as to whether the child was walking or running when struck and whether he was on a toy wagon or retrieving a ball, but there is no contention that the appellee was speeding or otherwise violating a statutory duty. As the trial court observed, there was no evidence as to when the child could reasonably have been seen by the defendant, and hence no proof of an opportunity on her part to avoid the accident after the child left a position of safety. In short, the case falls in the pattern of Cocco v. Lissau, 202 Md. 196, rather than State, Use of Taylor v. Barlly, 216 Md. 94. See also Flyer v. Del Borrell, 227 Md. 545 and cases there cited.

Judgment affirmed, with costs.

BRUNE, C.J., dissents.


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