It can hardly be logically contended that a conversation engaged in by the driver of a motor vehicle with a passenger sitting beside him is an act of negligence; and we cannot conclude that the failure of the plaintiff to protest against the conversation was an act of contributory negligence. In the case of Merrifield v. C. Hoffberger Co., 147 Md. 134, at page 137, 127 A. 500, 501, in dealing with a similar prayer, this court, speaking through Judge Digges, said: "The law, as declared by this court and supported by the great weight of authority elsewhere, is that, to justify the trial court in withdrawing the case from the consideration of the jury on the ground of contributory negligence by the plaintiff, the evidence must show some prominent and decisive negligent act on the part of the plaintiff which directly contributed to the accident, and was the proximate cause thereof, and that this negligent act must be of so prominent and decisive a character as to leave no room for difference of opinion thereon by reasonable minds. Baltimore O.R. Co. v. Hendricks, 104 Md. 76, 84, 64 A. 304; Cooke v. Baltimore Traction Co., 80 Md. 551, 558, 31 A. 327; Taxicab Co. of Baltimore v. Emanuel, 125 Md. 246, 93 A. 807.

The street car did not figure in the accident, and the other girl was probably right when she said she looked to the right and did not see a street car. The children were, according to their testimony, exercising the degree of care required before attempting to cross Frederick Road. Merrifield v. Hoffberger Co., 147 Md. 134, 140, 127 A. 500; Taxicab Co. v. Ottenritter, 151 Md. 525, 530, 135 A. 587. John J. Chiappy, employed by the defendant as a traveling engineer, who was driving the automobile at the time and place of the accident, testified: "I was traveling east on the Frederick Road. I was coming in the regular speed, and by the time I was passing Longwood Avenue, I presume half way between that street and the following street, I noticed a girl, say about ten years * * * come out between some parking automobiles on the south (his right) side of the street.

Even while walking in a cross-walk, where a pedestrian has the right-of-way over on-coming traffic, a pedestrian has a duty to "use his eyes, and thus protect himself from danger." Merrifield v. C. Hoffberger Co., 147 Md. 134, 142 (Md. 1925). The same rule must apply to a pedestrian who chooses, for no apparently urgent reason, to remain in a roadway while inspecting a car after an accident.

This Court has frequently said, as in the case of Taxicab Co. of Baltimore v. Emanuel, 125 Md. 246, at pages 259 and 260, 93 A. 807, at page 813, "The act relied on to establish, as a matter of law, the existence of contributory negligence must be distinct, prominent, and decisive, and one about which ordinary minds would not differ in declaring it to be negligent. Where the nature and attributes of an act relied on to show negligence contributing to an injury sustained can only be determined correctly by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its equality as matter of law." Merrifield v. Hoffberger Co. 147 Md. 134, 137 and 138, 127 A. 500. Appellee cross-appeals from the refusal of the trial judge to charge the jury that the salary lost by the appellee, due to this accident, and her medical expenses were proper items for them to consider in reaching the amount of their verdict.

17-18 Huddy, Automobile Law, 9th Ed., Sec. 161; Ashman, Directed Verdicts and Instructions, 2d Ed., Sec. 177(4). Where there is a conflict of evidence as to material facts relied on to establish contributory negligence, or the act is of such a nature that reasonable minds, after considering all the circumstances surrounding the happening of the accident, may draw different conclusions as to whether it constituted contributory negligence, it is not for the court to determine its quality as a matter of law, but it is for the jury to pass upon it. Waltring v. James, 136 Md. 406, 414, 111 A. 125; Merrifield v. C. Hoffberger Co., 147 Md. 134, 127 A. 500; York Ice Machinery Corporation v. Sachs, 167 Md. 113, 122, 173 A. 240; Baltimore Transit Co. v. State, to Use of Schriefer, 184 Md. 250, 40 A.2d 678. No absolute rule declaring what constitutes contributory negligence can be formulated to apply to all cases, because, like primary negligence, it is relative and not absolute, and it necessarily depends upon the circumstances of each particular case.

I concur in the opinion of the majority of the court that it was erroneous to instruct the jury that the defendant under the circumstances recited in the instruction which was given had the right of way. The instruction which was refused was too broad in stating that the defendant would be negligent under the facts as therein stated. In my opinion the correct rule is stated in the following language from the case of Merrifield v. Hoffberger Co., 147 Md. 134 ( 127 A. 500): "The appellant in this case had the right of way, which meant that if, while proceeding, his course and that of the defendant's truck would bring them in contact at a given point in the pedestrian's way, he was not required to stop or diverge from his course so as to give the truck the right of way, but on the contrary, under such conditions, it was the duty of the driver of the truck to stop or diverge so as to give him the right of way, and the appellant had the right to assume that this course would be followed by the driver of the truck, not alone because the consequence resulting from a failure of the driver of the truck to do this would be extremely serious, but for the further and controlling reason that the statute required the driver to do so."

The two cases cited to the contrary ( Webb-Pepploe v. Cooper, 159 Md. 426, 151 A. 235, and Barker v. Whitter 166 Md. 33, 170 A. 578), were each predicated upon the fact that the collision occurred between crossings. Cases more nearly in point are Consol. Gas etc. Co. v. Rudiger, 151 Md. 226, 134 A. 326; Panitz v. Webb, 149 Md. 75, 130 A. 913; and Merrifield v. Hoffberger, 147 Md. 134, 127 A. 500, 503, where upon analogous facts the plaintiff's negligence was held to be a question for the jury. In the case last cited the following quotation from Knapp v. Barrett, 216 N.Y. 226, 110 N.E. 428, was approved: "A wayfarer is not at liberty to close his eyes in crossing a city street.

' In Maryland the language, generally if not always, has been applied where the pedestrian was crossing at a crosswalk, it being said that having looked and seen no vehicle, or having seen a vehicle at a distance justifiably thought to be safe, the wayfarer was entitled to assume that an oncoming vehicle would respect his right-of-way. See, for example, Merrifield v. C. Hoffberger Co., 147 Md. 134, 127 A. 500; Taxicab Co. v. Ottenritter, 151 Md. 525, 135 A. 587; Shaivitz v. Etmanski, 164 Md. 125, 164 A. 169; Legum v. State, for Use of Moran, 167 Md. 339, 173 A. 565; Sheriff Motor Co. v. State to Use of Parker, 169 Md. 79, 179 A. 508. The same rule might well apply, under some circumstances, when the pedestrian was crossing where he did not have the right-of-way. If, as he started to cross, he looked, and the view gave him credible assurance of adequate opportunity and ability to cross safely, he might not, as a matter of law, be said to be negligent in failing to look again, although common prudence would seem to say that it would be better to do so. * * * "

Conversely, even though only ordinary care is required of the motorist, in approaching a pedestrian crosswalk which is likely to be used by persons under circumstances requiring the motorist to yield to the pedestrian's right of way, he is required to anticipate the presence of pedestrians in the crosswalk and to exercise much greater vigilance and caution to look out for such a pedestrian than the pedestrian is required to exercise to look out for the motorist. Heffner v. Admiral Taxi Service, Inc., 196 Md. 465 (1950); Wintrobe v. Hart, supra; Merrifield v. Hoffberger, 147 Md. 134 (1925). It is, therefore, incumbent upon the motorist not only to be continuously watchful for the possible presence of persons on the crossing, but to have the speed of his vehicle so reduced and controlled that it can be readily stopped or diverted in time to avoid a collision with a pedestrian in the crosswalk who might be exposed to such danger. Sugar v. Hafele, 179 Md. 75 (1941); Merrifield v. Hoffberger, supra.

' In Maryland the language, generally if not always, has been applied where the pedestrian was crossing at a crosswalk, it being said that having looked and seen no vehicle, or having seen a vehicle at a distance justifiably thought to be safe, the wayfarer was entitled to assume that an oncoming vehicle would respect his right-of-way. See, for example, Merrifield v. Hoffberger, 147 Md. 134; Taxicab Co. v. Ottenritter, 151 Md. 525; Shaivitz v. Etmanski, 164 Md. 125; Legum v. Moran, 167 Md. 339; Sheriff Motor Co. v. Parker, 169 Md. 79. The same rule might well apply, under some circumstances, when the pedestrian was crossing where he did not have the right-of-way. If, as he started to cross, he looked, and the view gave him credible assurance of adequate opportunity and ability to cross safely, he might not, as a matter of law, be said to be negligent in failing to look again, although common prudence would seem to say that it would be better to do so.