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Marlow v. Davis

Decided: December 12, 1961.

MARLOW, INFANT ET AL.
v.
DAVIS



Appeal from the Circuit Court for Montgomery County; Shook, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.

Horney

When the Circuit Court for Montgomery County overruled a motion for a new trial and entered a judgment for costs on the verdict of the jury in favor of Catherine C. Fillingame Davis (defendant below and appellee here) against Jean Marlow, in her own right and as mother and next friend of Bruce Marlow, an infant (plaintiffs below and appellants here), the plaintiffs appealed, claiming the court erred in five of its rulings with respect to a procedural matter and as to the admissibility or inadmissibility of certain evidence.

On a Saturday afternoon in the latter part of November of 1955, the six year old infant plaintiff was struck while crossing Greentree Road in Bethesda between intersections by an automobile the defendant was operating. As a result the child was seriously injured. Prior to the accident he had been playing alone near a path leading to the school he attended on the south (but not exactly opposite) side of the street from his home. The impact occurred in the center of the street, but there is a conflict in the evidence as to the manner he entered the street. According to the child, he approached the side of the street, looked in both directions and, seeing no traffic either to the east or to the west started to walk across it and had taken about four or five steps to the center of the macadam paving when he heard the warning of a horn, saw the approaching

automobile and stood still. But, according to the defendant and two witnesses called by the plaintiffs, the child darted out into the street in front of the automobile, which was traveling in an easterly direction. The defendant, who had first seen the child off of the street from the distance of about seventy-five feet, immediately reduced her speed from twenty-five to fifteen m.p.h. and blew her horn twice, and when next she saw him he had entered the street. At this point she applied both the foot and hand brakes. The skid marks resulting from the braking began on the operator's side of the street and were from fifteen to eighteen feet in length. When the vehicle came to a stop, the left front wheel was to the south of the center of the street.

On this appeal, the plaintiffs-appellants contend that it was error for the trial court (i) to prohibit mention of the ad damnum in the opening "argument"; (ii) to refuse to receive into evidence any testimony as to the existence of a school zone sign in the vicinity of the accident; (iii) to refuse to receive into evidence photographic enlargements of the scene of the accident; (iv) to allow a police officer over objection to give his opinion as to speed based on skid marks; and (v) to limit and restrict the cross-examination of the defendant and to require the plaintiffs to make the defendant their witness in order to examine her fully as to the terse testimony she had given on direct examination. All are without substance.

(i)

At the outset of the trial and before the jury was empanelled, counsel for the defendant made a motion to the effect that the plaintiffs should not be permitted to state "any figure as an evaluation of pain and suffering of the child" in "the argument." And while counsel for the plaintiffs objected that the motion was premature, he stated he would "only argue the evidence." Apparently the trial judge thought that both counsel were referring to the opening statements to be made to the jury, for she stated that the purpose of an opening statement is "simply to say what you will prove" and that the purpose of the "closing" arguments is "simply to say what you

believe you have proved." The record does not disclose that the trial court ruled on the motion and for that reason there is nothing before us on this ad damnum question to decide. Maryland Rule 885.

(ii)

The contention that the trial court refused to receive any testimony as to the existence of a school zone sign in the vicinity of the accident -- which though facing the eastbound traffic was located further to the east (not to the west) of the point of impact -- is not correct. The record shows that the court permitted the mother of the child to identify on a photograph the diamond-shaped sign in question and refused to strike out the identification on motion of the defendant. But, when the plaintiffs attempted to have other witnesses testify as to the sign, the court, upon successive objections of the defendant, refused to receive further testimony as to the existence of the sign for the reason that it was immaterial in that the school was not in session on the day of the accident. We think the offered evidence had little if any probative force, but even if we assume, without deciding, that ...


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