County Commissioners v. Broadwaters

Yellott, J., delivered the opinion of the Court. In the Circuit Court for Alleghany County an action for damages was instituted by the appellee against the appellants; the injury to the plaintiff resulting, as alleged in the declaration, from the unsafe and defective condition of one of the public roads in said county. The road in question runs through Lonaconing, which is an unincorporated town containing, as is shown by the proof, a population of about four or five thousand. The eastern edge of this road is so constructed that the earth is held in place by a wall of logs which rises vertically, and thus forms a precipice from ten to thirteen feet in height.

On this eastern edge there is no railing or barrier of any sort. The plaintiff, who is an inhabitant of the town, was walking along this road on a dark and cloudy night, when he fell over the edge of the road and was seriously injured. In the trial in the Court below he obtained a verdict, and this appeal is taken in consequence of supposed errors in some of the rulings of the Court in relation to some of the prayers offered by the defendants and rejected. The first prayer of the plaintiff, which was conceded, presented the case fairly to the jury, who were told that if they found that the road was negligently constructed and left to remain by the defendants in an unsafe and defective condition for persons walking and travelling along and over said highway, and if they further found that the plaintiff, while walking along and over said road and using due care and caution on his part, was thrown to the ground and injured by reason of the said unsafe and defective condition of said highway, then the plaintiff was entitled to recover.

This prayer having been conceded became the law of the case. ’ . ⁵³⁵ The first prayer of the defendant enunciates the proposition that if the plaintiff was well acquainted with said road at the time of the injury, and knew that there was no railing or guard, and that while travelling along said road at night he was unable, .solely on account of the darkness, to see the road and its surroundings, and walked off the brink of said embankment, then the plaintiff could not recover in the action and their verdict should be for the defendant. The Court could not properly have granted this prayer because so doing would have been tantamount to telling the jury that the plaintiff, and all other persons who had knowledge, of the dangerous condition of the road, assumed all the risk of passing along said road at night, and could not recover for any injury sustained in consequence of such condition, although that was the permanent condition of the highway constructed and opened for travel by the defendants. In the case of the Baltimore & Ohio R. R. Co. vs. Boteler, 38 Md., 585 , this Court decided that it was the duty of the defendant to so construct its lateral embankments adjoining a highway as not to render said highway dangerous for passengers by day or night. And in Palmer vs. The Inhabitants of Andover, 2 Cush., 600 , the Supreme Court of