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Flyer v. Borrell

Decided: February 19, 1962.

FLYER, ETC. ET AL.
v.
DEL BORRELL ET AL.



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

Brune, C. J., and Hammond, Horney, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.

Marbury

Claudia Jan Flyer, a six year old girl, and Irving N. Flyer, her father, sued Alice Catherine Del Borrell, driver of an automobile, and Paul Francis Del Borrell, owner, for damages resulting to them, respectively, from an accident in which the automobile struck the child. At the conclusion of the plaintiffs' case the court below, on motion of the defendants, directed a verdict in their favor on the ground that the evidence did not show any primary negligence on the part of

the driver of the striking automobile. From the judgment which followed, the plaintiffs appealed to this Court.

In passing on a directed verdict for the defendants, we have resolved all conflicts in the evidence of the appellants and assumed the truth of all evidence and all inferences which may naturally and legitimately be deduced from that evidence, which tend to support their right to recovery. We conclude that they have failed to prove any negligent act or omission of the appellees responsible for injury to or damage suffered by either appellant. This being so, the court below was correct in holding that on appellants' own showing there was no rational ground upon which a verdict for them could be based. Olney v. Carmichael, 202 Md. 226, 96 A.2d 37; Eisenhower v. Balto. Transit Co., 190 Md. 528, 59 A.2d 313.

On July 16, 1959, at approximately seven o'clock, p.m., in broad daylight, the appellee Alice Catherine Del Borrell, was operating an automobile in a southerly direction on East Nolcrest Drive, Silver Spring, Maryland. Her husband was riding as a passenger, to her right. At the time of the accident East Nolcrest Drive was twenty-seven feet wide from curb to curb, with automobiles parked on both sides. As Mrs. Del Borrell proceeded between the parked cars, the infant appellant Claudia Jan Flyer, darted out between two cars on her left immediately into the path of her vehicle. Claudia had been playing in a yard across from her home on East Nolcrest with a boy named Bruce Horton. Bruce had dipped a stick into some dog excrement, had thrust the stick at Claudia, and was trying to put it on her. She started to run and, without looking either way, ran out between two parked cars and was struck by the left front portion of the bumper, radiator, and hood of the appellees' vehicle. The speed limit was twenty-five miles per hour and Mrs. Del Borrell, according to the testimony, was proceeding at a speed between ten and fifteen miles an hour. When the child ran out between the cars into her path she was right on the child; she applied her brakes and her husband jerked the wheel to the right. The car came to rest with its front wheels over the curbing, where it stopped against a small tree in a grass plot, at an angle of approximately forty-five degrees to East Nolcrest Drive, with the child under the car.

Corporal Archie W. McNeil, of the Montgomery County Police Department, the investigating officer, called as a witness for the appellants, testified that he measured the distance from the point of impact to where the child was found as ten feet. He further testified that there were no marks on the tree or vehicle, and that the bark was not disturbed on the tree.

The appellant child did not testify, nor did her playmate Bruce Horton, although both had given depositions under pretrial discovery procedure, but these were not offered in evidence.

Appellants' theory of negligence rests upon the testimony of one witness, their neighbor, Lloyd B. Thomas, who apparently witnessed the accident at a distance of from one hundred thirty to one hundred fifty feet from the point of impact. He testified that he was cutting grass with his head down, using "little hand cutters." While looking at the ground he heard a scream, a thud, and then he lookd up. He could see the child under the car. At one point he stated the woman in the car screamed, and had thrown up her hands. Elsewhere he stated that it could have been the child screaming. There were two automobiles parked between where he was working and where the impact took place. He said that it took him a split second to orient himself as to what was occurring; that he couldn't see very well but that he saw the car proceeding south, before turning, over a distance of fifteen to twenty feet. He never got closer than sixty to seventy feet from the car while it was moving. He did not see the automobile nor the child before the impact, nor did he see the impact. All of his observations as to the actions of the child, the operator, and her passenger were made during the time in which the car, traveling between ten and fifteen miles an hour, covered a distance of about thirty feet, according to his calculations, and he conceded that his estimate of distance was a guess.

From this evidence the appellants' argument may be summarized that the appellee wife was negligent in: 1, failing to apply her brakes effectively; 2, driving recklessly, in that she took her hands off the wheel; 3, not responding with ...


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