This action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., presents the usual issues of negligence, contributory negligence and last clear chance, in the case of an 8 year old boy who rode his bicycle across a suburban street, in the middle of the block, in the path of an approaching mail truck.
The accident occurred about 3:00 P.M. on June 17, 1955, on 25th Avenue, in District Heights, Prince George’s County, Maryland. That street runs north and south; its macadam pavement measures 36 feet from curb to curb, flanked on each side by a 6 foot grass plot, a 5 foot sidewalk, and 26 feet of lawn leading to a housing development. At a dis-stanee of 102 feet, 6 inches south of Iverson Street, each side of 25th Avenue is intersected by an 18 foot private alley or driveway, leading to a parking area in the rear of the houses. The grade of the driveway to the east is 4% percent up from the street. Many children live in the neighborhood.
Paul B. Rogers, a mounted postal carrier, was driving a 1952 Dodge one-ton truck; its brakes and tires were adequate, and the brakes were in good working order. After delivering a parcel post package north of Iverson Street, Rogers proceeded south on 25th Avenue, stopped before crossing Iverson Street, which is a divided highway, and continued south on 25th Avenue intending to turn off after a few blocks to make another delivery. The street was clear and Rogers was driving between 20 and 25 m.p.h. When he was about 40 feet north of the driveway, he saw a boy on a bicycle entering 25th Avenue from the east driveway. The boy was going fast, and Rogers did not see him look toward the truck. There were no eye witnesses to the accident except Rogers and he did not notice the boy until the bicycle was entering the street; it is, therefore, impossible to tell whether the boy had been riding down the driveway from the parking lot or had been riding along the sidewalk and decided to cross the street at that point. Rogers applied his brakes promptly and brought the truck to a stop before the front had gone much past the center of the driveway. When it came to a stop, the front of the truck was 7 feet from the west curb, the rear 8 feet. The boy on the bicycle had continued to cross the street in front of the truck, and the rear of the bicycle was struck by the right front bumper. There was little damage to the bicycle except a slight dent on the rear fender, but the boy was thrown off and struck his head on the curb, receiving injuries from which he died 4 hours later, without regaining consciousness.
There was no evidence that the bicycle was pushed or dragged, and I find that the truck did not proceed more than 2 feet after the impact. There were skid marks running back 34 feet from the rear wheels of the truck. At a speed of 25 m.p.h., it requires 43 feet of braking distance to bring a vehicle with proper brakes and tires to a stop. 1 The skid marks, therefore, confirm the driver’s testimony that the truck was going less than 25 m.p.h. These facts, testified to by the police officer, are the principal bases for my findings with respect to speed and distance.
The boy, Richard Alan Mumford, was 8Yz years old, had just completed the third grade, was a member of the “Safe *66 .ty Carefuleers” at school, and was familiar with safety rules. Although he did not own a bicycle, he had been riding for two years. On the day of the accident, he had borrowed a friend’s bicycle.
The boy’s father is employed as an illustrator for the F.B.I.; the boy was talented, and might well have joined that or some other organization in a similar capacity upon graduation from high school; he would probably have earned about $3,000 a year from age 171/2 to 21, a total of $10,500. The cost of maintenance from age 8% to 21, at $500 a year, would be $6,250. The difference, $4,250, adjusted for discounts, to $4,000, I find to be the pecuniary loss to the parents. This is the only loss recoverable under the Maryland law, and must be limited to the minority of the child, State, for Use of Coughlan v. Baltimore & O. R. Co.,
Plaintiffs charge Rogers with negligence in that he did not see the boy sooner and did not sound his horn after he saw the boy entering the street. It is true, of course, that a driver must use reasonable care to observe conditions along the side of a highway, although his primary attention should be directed to the road in front. If in fact the boy started to ride down the driveway from the parking lot, the driver could have seen him as soon as he came out from behind the house, some 37 feet from the curb, provided his attention had been directed to that point at that time; but the driver would have had the right to .assume that the boy would turn to the right or to the left on the sidewalk or in the empty street and would not ride straight across in front of the truck. Belle Isle Cab Co. v. Pruitt,
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The usual rules of the road apply to persons riding bicycles. Maryland Code, 1951 Ed., Art. 66%, Secs. 150, 199, 208. An 8 year old child is not held to the same measure of care required of an adult, but he is held to the same measure of care which children of the same age and intelligence ordinarily exercise under similar circumstances. Slaysman v. Gerst,
The Court of Appeals of Maryland has seldom applied the “last clear chance” doctrine in automobile cases, but has usually held that the opportunity the plaintiff had to extricate himself from the peril made it a case of concurrent negligence. The Maryland Court has repeatedly held that a favored driver has the right to assume that an unfavored driver will stop before entering the intersection and will yield the right of way, up to the very moment of impact. Fowler v. De Fontes,
A driver cannot expect as much of an 8 year old as of an adult; but as Judge Bond said in a case involving a younger child, “whether the action should be considered negligence in so small a child, or not, if it could be found that she was not in control of her safety, because of youth or bewilderment, and found that the driver should have seen, in time to stop, that she was not so in control, then causal negligence on a last clear chance afforded the driver might be found. The question would be one of sufficiency of evidence of time to stop.” Stafford v. Zake,
The driver in the instant case met both those tests. I find as a fact that there was no “time to stop” after the driver saw or should have seen that the boy “was not in control of (his) safety”. Even if the driver knew or had reason to know that the boy was “inattentive and not likely to act in self-protection”, the driver did not “fail to take reasonable measures to avoid injuring him”. The driver applied his brakes promptly and reduced the impact to a minimum. Sounding his horn would have done no good if the boy had seen the truck and was trying to get across the intervening space first. Even if the boy had not seen the truck, sounding the horn might have confused him; it was not negligent for the driver to devote all his energies to stopping the truck.
Judgment for the defendant.
Notes
. The 43 ft. of braking distance is in addition to the time required to apply the brakes, usually called reaction time, which averages y¡ see., during which a vehicle would travel 18 ft. at 25 m. p. h.
At that speed the stopping distance would be 61 ft. Since I find tbe speed in this case to have been less than 25 m. p. h., and the driver to have average reactions, the total stopping distance would be about 50 ft.