Board of County Commissioners v. Pindell

Briscoe, J., delivered the opinion of the Court. The record in this case presents the defendant’s exception to the ruling of the Court below, in granting the plaintiff’s first and second prayers, in rejecting the defendant’s first, second, third, fourth, sixth, tenth and eleventh prayers and in overruling the defendant’s special exceptions to the granting of the plaintiff’s first and second prayers. The defendant’s fifth, seventh, eighth, twelfth, thirteenth and fourteenth prayers were granted, as offered, and the judgment, being in favor of the plaintiff, the defendant brings this appeal. The suit was instituted by the plaintiff against the defendant, the Board of Co. Commissioners of Howard Co., in the Circuit Court of that county, but was subsequently removed to the Circuit'Court for Anne Arundel County, where upon trial, the plaintiff recovered a judgment of six hundred dollars and costs.

The declaration contains two counts, and the suit was brought to recover damages for personal injuries received by the plaintiff and for injuries to her horse, wagon and harness, while driving on one of the public highways of Howard county, commonly called “the Beechwood Avenue,” in the First Election District of that county. The declaration avers, that the County Commissioners negligently allowed and permitted, the county road where the accident happened to be and to remain out of repair and . in an unsafe and dangerous condition; that the plaintiff while driving along this highway using due care and caution, was thrown from the vehicle in which she was driving and painfully injured, and her horse, then, being driven and drawing the vehicle, was badly cut and injured by reason of his having trod into a large and dangerous hole in the ⁷⁶ road, maintained by the defendant corporation, which hole was well known by the defendant to exist, yet the defendant did not repair the hole and the dangerous place, but permitted it to remain so unrepaired and- unfixed, well knowing the same to be a dangerous place and a constant menace, to those driving along and using the road. ■ The second count, relates to the injury to the person, the damage to the vehicle and horse, and the same negligence is averred as in the first count. The plaintiff testified that on or about the fifteenth of February, 1910, while being driven by a colored boy in a phaeton on the public road where the accident occurred, her horse suddenly plunged in a mud hole, and she was thrown on the dashboard, then back again, and then out against the wheel; that the hole was a deep one, but she had no idea of its size or depth; that the horse was now valueless, and that the harness and vehicle were injured; that she was braised and began to suffer with pain in her hip and had to give up teaching for nine days, and one year later consulted a physician and had to wear a plaster case from that time until now. She further testified, that the road had been left in an unfinished condition in the fall of 1909, and no work had been done on the road from that time to the day of the accident, and it was filled with mud, and you could not tell what was there; that at the time of the accident Mr. Grovenoe Hanson, one of the county commissioners, drove up, and exclaimed: “Did you ever see such a terrible road?” and that when her team left the macadam road and had gone about twenty feet, going up grade very slowly, the horse fell. ‘ Fpon cross-examination, she testified that she had been over the road four or .five times that winter; that she went to see Dr. Riley on the 11th of February, and had been there three or four times since; that she lost no time and did not employ any one to teach for her.

The colored hoy, who drove the vehicle on the day of the accident, testified that after leaving the macadam road and ⁷⁷ going twenty feet up grade, all at once while the horse was walking, he went down and struggled, and when -“I got him out of the hole help came; the hole was as deep as my arm and about six or eight inches wide.” That the hole was filled with water, and it was in the day time, that he could see nothing there to show that it was dangerous; that the plaintiff was thrown out and he went to the horse; she was doAvn in the mud and the shaft strap was broken, the road there was all right, but the AA'liole road was muddy. He further testified on cross-examination that the hole was deep; that he could tell by the horse’s knee; that both feet went doAvn, one deeper than the other. Dr. Riley, who attended the plaintiff, testified in substance, that the plaintiff had been compelled to wear a plaster cast, but that he did not consider the injury permanent. Miss Pindell, a sister of the plaintiff, testified that her sister AAras avcII and strong before the accident, but that since that time she Avas practically an invalid, unable to do home AArork, or to' attend .to her ordinary duties and that she had lost flesh.

On the part of the defendant, Mr. Hanson, one of the county commissioners, testified that he rode over the road where the accident occurred twice a week; that the State had macadamized the road except about six hundred feet, and this'had been graded, rounded up, rolled and left in a smooth and nice condition in the fall of nineteen hundred and nine, that it was a good road in the month of December, and was in fairly good condition up to the time of the thaw; that on the day of the accident, in returning from Ellicott City, he ’ rode up to the. road where he overtook Miss Pindell; that the road was up grade and macadam and that he followed her team to the end of the macadam, and it struck muddy road ; that he heard her horse wheeze, then the horse, suddenly turned and fell. The colored boy, who was driving, jumped out; then Miss Pindell jumped out and went up in the path at the side of the road, and Miss Pindell ⁷⁸ said to the boy, “why didn’t you carry out my instructions and put on the horse’s collar instead of the breast strap ?” that the condition of the road had never been complained of; that at the time of the accident, the mud in the road was six of seven inches deep, and the road was in good condition and that there was no holes except the ruts usually made by wagon wheeld in a dirt road. The witness Kreager, who saw the accident, testified, that Miss Pindell placed her hand on the wheel and jumped out, that he did not see any mud on her, and that she did not fall out; that the road at that point was thirty feet, and that he saw no hole, although he looked for it, and could have seen one had there been one, and that he nsed the road twice a day going to and from work, and that there it was no worse than other parts of the road. George Arter, a witness for the defendant, who also saw the accident, testified, that he used the road with a pair of mules and it was alright, except muddy.

The witness Turner, who lived near the road, testified, that he used the road at least four times a day going in vehicles to and from the depot; that he was over it five minutes before the accident and saw no hole; that the road was no worse that day than any other time, it was muddy; that this road had been harrowed, dragged, shaped up and roiled the previous fall and left in a fine condition; that the road was wide at that point and that no grading had been done there, nor had any stone been taken out there, that could leave a hole of any size; that