delivered the opinion of the Court.
Thе appellee, a boy then ten years of age, was struck by a bakery truck driven by the appеllant, while the boy, with two other small boys, was pushing a toy wagon across the Key Highway in Baltimore City at Jaсkson Street; and he has recovered judgment against the driver, Bielski, for damages alleged to have been sustained by him. On the appeal by Bielski, two questions are raised: (1) Whether the evidence established contributory negligence on the boy’s part beyond controversy, so that the defendant was entitled to have the court direct a verdict in his favor because of that fact; and' (2) whether the dеfendant was entitled to introduce in evidence testimony given in the traffic court of Baltimore City by a witnеss considered to be insane at the time of trial of this suit. That there was evidence legally sufficient tо support a finding of negligence on Bielski’s part is not now questioned.
There was evidence tending to prove that the three boys were attempting to cross Key Highway, at a point where it runs eastwardly and westwardIy, from the southwest corner of Jackson Street, which enters Key Highway from the south. Bielski’s truck wаs coming westwardly from the right-hand or easterly side of the boys, but the boys testified *494 that, as they started and looked that way, the truck was distant about the length of a city block, and that they knew they could cross befоre it would reach them. The movement of the truck and the place of contact are subjеcts on which the witnesses disagree, but there is evidence that the truck was moving at a rate of abоut forty miles an hour, and that the defendant, perceiving some trouble in the working of the truck, and turning his attention to his dashboard, permitted the truck to move over to the left or southerly side of the highway, where the boys were, and to strike them there. The plaintiff testified that, after having looked for on-coming vehicles as he left the sidewalk, and having seen that this truck was at about the distance of a block awаy to his right, he did not look again until he was struck; and that testimony is the principal reliance in the argument that contributory negligence had been established as matter of law.
. The testimony does not, we think, so еstablish contributory negligence. We concur in the trial court’s ruling to that effect. It was permissible for the jury to infer from the evidence that the truck did come over to its left, that the plaintiff was justified, and exеrcising due care, in assuming that he need not guard himself against it there, and in .assuming that the truck would not comе with such rapidity .as to overtake him anywhere in the street. If either fact could be found by the jury, then the сourt could not hold that on the evidence the plaintiff must have been guilty of a lack of due care, under the circumstances, in failing to look as he continued to cross, or in acting otherwise thаn he did act. A similar contention was considered in
Coplan v.
Warner,
On the question of the trial court’s refusal to permit the dеfendant to introduce testimony given by a witness, Myers, in the traffic court, on the ground that he was insane at thе time1 of the trial of this suit, it seems sufficient to observe that the preliminary proof of insanity and inability to рrocure the testimony of the witness was inadequate. Such as there was consisted in statements by a police officer when cross-examined for the defendant: “That (quoting from the record) he knew Meyers was now in Spring Grove Hospital and had been there for two or three months; I guess he was normal before the accident, I am no doctor, I could not tell you.” More specific informing testimony shоuld be adduced to lay a foundation for substituting former testimony for present testimony by a witness, in person or by deposition.. A statement, quite likely upon hearsay, that the desired witness is in an institution, without definite assurance that Im is disabled and will be disabled beyond a reasonable time of postponement for him, is not еnough. The preliminary question of necessity of using former testimony is for the decision of the trial court, аnd disregarding other objections made in this instance, this court is unable to say that there was any abuse of discretion in the decision, or any error otherwise.
Bowie v. O'Neale, 5
H. & J. 226, 231;
Karthaus v. Owings,
2 G. & J. 430, 446;
Marshall v. Haney,
Judgment affirmed, with costs to the appellee.