Annapolis & Chesapeake Bay Power Co. v. State Ex Rel. Smith

Adkins, J., delivered the opinion of the Court. The equitable plaintiffs in this case are the widow and infant child of Edward H. Smith who, on August 4th, 1924, came in contact with a fallen wire of defendant charged with an electric current, while walking on Calvert Street, a ²⁴⁴ public street of the city of Annapolis, and was instantly killed. Suit was brought against the Annapolis & Chesapeake Bay Power Company and the Washington, Baltimore & Annapolis Bailway Company. The case was withdrawn from the jury as to the railway company, and there was a verdict for $6,000 in favor of plaintiff against the other defendant, on which judgment was entered.

From that judgment this appeal was taken. There are two bills of exception, one involving a ruling on evidence and the other the ruling on the prayer. The first exception was not pressed by appellant in its brief or in the oral argument, and, as we find no prejudicial error in the ruling which is the subject of that exception, it will not be necessary to discuss it. The question to which the objection was sustained was substantially answered later on.

Plaintiff’s two prayers which were granted seem to be unobjectionable, if there was any evidence to go to the jury to support them. No other objection was urged to them by appellant, either in its brief or oral argument. The defendants offered nine prayers. The first and third were demurrers to the evidence; the seventh asked for a directed verdict on the ground of lack of evidence that defendant had notice either actual or constructive that the wire had fallen or was in a defective condition in time to have repaired it prior to the accident; the second and fifth asked for a directed verdict on the ground of contributory negligence; the sixth, a contributory negligence prayer, was granted; the fourth was granted as modified; the eighth, which was granted, was an instruction that plaintiff could not recover if the deceased could have avoided injury by the exercise of ordinary care; the ninth was refused.

The reporter is requested to set out defendant’s fourth and ninth prayers. The first and third were properly refused. The maxim res ipsa, loquitur applies. For the same reason the special exception to plaintiff’s first prayer was properly overruled. ²⁴⁵ Western Union Telegraph Company v. State, use of Nelson, 82 Md. 310 ; Winklemann & Brown v. Colladay, 88 Md. 78 ; Howser v. Cumberland and Penna.

R. Co., 80 Md. 148 ; Brown v. Edison Electric Co., 90 Md. 400 ; Hearn v. Quillen, 94 Md. 39 ; Benedick v. Potts, 88 Md. 52 ; Walter v. Baltimore Electric Co., 109 Md. 524 ; United Rwys. Co. v. Corbin, 109 Md. 442 . In Electric Light Company v. Lusby, 100 Md. 634 , relied on by appellant, it was not defendant’s wire which was down or which caused the trouble. Whether the prima facie evidence of negligence was met by defendant was a question for the jury.

Besides there was affirmative evidence from which, if believed, the jury might have found negligence. There was evidence that the wire fell and was seen emitting sparks thirty minutes before deceased came in contact with it; that one witness called up the trouble station over the telephone three times, the first time being twenty-five minutes before the accident; that another witness called up about twenty or twenty-five minutes before the occurrence; and that each of these witnesses called attention to the dangerous condition and warned that some one would be killed if the wire was not repaired or removed; that the first witness looked in the telephone book each time before calling, to be sure he was asking for the right number, and was told by the person receiving the call that it was the trouble station and that some one would be sent aronnd; that this station was in a walking distance of four minutes from the