Appeal from the Circuit Court for Montgomery County; Anderson, J.
Brune, C. J., and Hammond, Horney, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.
This appeal questions whether the trial court erred in granting motions for directed verdicts which relieved a husband and wife, defendants below and appellees here, of all liability arising out of their alleged negligence and agency relationship in regard to a personal injury claim.
On a clear, dry midafternoon in November, 1960, the wife, Barbara Watkins, was proceeding east on Macon Road, in Montgomery County, in an automobile titled jointly in the names of herself and her husband, James Watkins. She had just picked up four children, including her own son, at a nearby
school to transport them to their homes. With her in the front seat were a Mrs. Walton and her son. Macon Road is a paved residential street with a descending grade toward the east, described as not steep. The street itself is twenty-seven feet wide; adjoining it on either side is a rounded, slightly depressed paved gutter two feet wide, adjacent to which is a grassed area eleven and one-half feet wide. Next to the grass plot is a four-foot concrete sidewalk. The speed limit on Macon Road is 25 miles per hour, and at the bottom of the descending grade, at Ashley Drive, there is a "stop" sign against traffic on Macon Road.
Mrs. Watkins was some distance from the stop sign when the four-year-old infant plaintiff, Toni L. Brantner (one of the appellants), ran into the street, crossing from the south toward the north, on Mrs. Watkins' right side. While Mrs. Watkins admitted that she had seen the Brantner child and other children playing on the grass plot when she was approximately 180 feet away, her testimony that the child ran into the street when the car was almost abreast of her, and collided with the right rear side of the car, was uncontradicted. Although there was some conflict in the testimony as to the speed of Mrs. Watkins' car at the time of the accident, it was relatively minor. Mrs. Watkins said she was going twenty to twenty-two miles an hour and did not have her foot on the gas pedal, as she was in the process of slowing the car down for the stop sign, and her passenger, Mrs. Walton, said the speed was "not fast at all" and that they were slowing down. Two neighboring housewives testified for appellants that they had observed the car just before the accident and that its speed was "fast", but in both cases they qualified their adjectival description to a speed of "around twenty-five miles an hour", and when pressed neither was willing to say the vehicle was going faster.
Mrs. Watkins testified she did not have sufficient time to stop her car when the infant ran into the street, so she swerved to the left in an effort to avoid the child and stopped within twenty feet from the point of impact. Her stopping distance was uncontroverted. A county policeman, assigned to accident investigation work, testified that there were no skid marks at
the scene, and that an automobile traveling at twenty to twenty-two miles an hour under the conditions existing at the time of the accident could have been stopped within twenty-five feet, without skidding.
The suit was filed on behalf of the infant appellant by her father and next friend, Lester E. Brantner, for the child's injuries, and also by Mr. Brantner for medical expenses incurred. Mr. Watkins was joined as a defendant with his wife on the theory that Mrs. Watkins, as the allegedly negligent driver of the car, was acting as the agent of her husband in picking up their child at school. The case was tried before a jury and at the close of all the evidence the court granted Mr. Watkins' motion for a directed verdict on the ground that there was no showing of an agency relationship between the husband and wife. On a similar motion of the wife on the ground that no primary negligence on her part had been shown, the trial court reserved its ruling and submitted the case to the jury. After the jury disagreed and were discharged, the trial court granted Mrs. Watkins' motion for a directed verdict. In its memorandum opinion the trial court excluded any element of contributory negligence since the child was only four years old, citing Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951).
On this appeal from the judgments for costs entered against them the appellants contend that there was sufficient evidence of negligence on the part of Mrs. Watkins and of an agency relationship to take the case to the jury as to both defendants. As to negligence, their argument is that the appellees' car was traveling at a speed excessive for the area in which the accident occurred; that Mrs. Watkins had an unobstructed view of the infant appellant for at least 180 feet; that by her own admission the child was running towards the street when Mrs. Watkins first saw her; that because of the conflicting testimony as to the speed of the vehicle, the question should have been left to the jury to resolve. ...