Baltimore & Liberty Turnpike Co. v. Cassell

Yellott, J., delivered the opinion of the Court. A suit for the recovery of damages was instituted in the Court of Common Pleas of Baltimore City, by the appellee against the appellant; and from the judgment rendered in that cause, this appeal has been taken. As shown by the record the appellant, a body corporate, owns a turnpike road and is authorized by its charter to exact and receive the payment of toll for travel over said road. On the night of the sixth of November, 1885, the appellee, while driving a coach, was injured by the vehicle being overturned and thrown down a declivity on the side of this road.

The plaintiff averred in his declaration, and offered evidence tending to prove that the accident resulted from the neglect of the defendant to keep the road in a safe condition for travel. The defendant adduced proof for the purpose of showing that there was no negligence on its part, and that the proximate cause of the injury was to be found in the fact that the plaintiff was driving a pair of horses, one of which was young and refractory, and that this animal became fright ⁴³⁰ ened and forced the coach over the declivity. There was much conflict of testimony, but the jury, enlightened hy the instructions of the Court, found for the plaintiff. In this record are twenty-two hills of exception; twenty-one of which are in relation to the admissibility of evidence; while the remaining exception applies to the. ruling of the Court, rejecting the prayers of the defendant and granting a prayer offered by the plaintiff, and also giving instructions of its own.

The appellant has abandoned its fourth, sixth, eighth, twelfth, fifteenth, sixteenth and nineteenth exceptions on tlie ground that the legal propositions which they present cannot he maintained in view of the decision of this Court in Baltimore and Yorktown Turnpike Road vs. Crowther, 63 Md., 558 . The questions presented by the exceptions still relied on must now he considered and determined. The established rule is that, when corporations are authorized and empowered by legislative enactments to construct or improve turnpikes and other public works of a similar nature, they are under a legal obligation to have the work done with due regard for the safety of individuals, and will he held liable in an action for damages, resulting from the non-performance of this duty. The taking of toll from travellers as compensation for the use of the road creates an obligation to maintain every part of said road in a safe condition.

Nicholl vs. Allen, 1 Best & Smith, 932; Balt. & Yorktown Turnpike Co. vs. Crowther, 63 Md., 566 ; Ireland vs. Oswego Plankroad Co., 13 N. Y., 526 ; Brookville, &c., Turnp. Co. vs. Pumphrey, 59 Ind., 78 . The first hill of exception, which has not been abandoned, was taken to the admission of the testimony of a witness who said he was well acquainted with the road, and described its condition from his own observation. He was then asked: “Please state whether or not in your opinion, from what you saw of the road, it was safe to travel at that point hy wagons or carriages ? ” It was ⁴³¹ contended that this was an attempt to place the witness in the position of an expert.

But this objection does not rest on any substantial basis. Experts are persons who have technical and peculiar knowledge in relation to matters with which the mass of mankind are supposed not to be acquainted. Thus a vessel is intended to be navigated by one having nautical experience, and cars on a railroad are under the management of those who are supposed to have acquired knowledge and skill in the control of trains. It is manifest that mere passengers cannot be experts in relation to these modes of locomotion, although they may testify to the existence of facts coming within their observation.

But macadamized roads are constructed for all persons to ride and drive over, and the most timid traveller does not deem it necessary to carry an expert in his carriage to designate the dangerous places. Even animals will sometimes notice such places and avoid them; and any human being who has the use of his organs of vision, and .is possessed of an intellect above the grade of idiocy can tell when a particular place in a road is dangerous or otherwise, and is therefore competent to testify as to its condition; the value of his testimony being for the consideration of the jury. In Crowther’s Case, 63 Md., 568 , this Court said: “Whether this bank or declivity rendered the road unsafe for travel was a matter about which men of ordinary intelligence could speak as well as' experts in road-making, and the testimony of such witnesses is often resorted to in such cases.” What has been said on this subject is also applicable to the defendant’s thirteenth, eighteenth and twentieth bills of exception, which present substantially the same legal propositions. There is no perceptible error in any of the rulings of the Court below in relation to the admissibility of the evidence to which these exceptions apply.

Testimony was offered by the plaintiff tending to show that he was injured by the coach having been thrown ⁴³² •over the declivity, and the witness was then asked to state what his physical condition and appearance of health were after the accident and continued to be. These were facts pertinent to the issue, and it was necessary that the jury should have the information thus sought for in order that they might ascertain the extent of the injury so as to determine on the amount of damages which it would be proper to award. The testimony could only have been objected to on the ground that the witness was not a medical expert. . It is true that medical experts may be the only witnesses competent to give the diagnosis of a disease, to testify in regard to its proper treatment secundum artem, and to express an opinion as to its probable duration, effects and final termination.

But if ordinary individuals could not judge of a person’s health from his appearance and symptoms, it would he impossible to know when it was necessary to call in a physician. If a man received a blow from a heavy bludgeon on his lower limbs, certainly an unlearned person, who