County Commissioners v. Burgess

Irving, J., delivered the opinion of the Court. The appellee’s horse was so injured, by getting into a hole in one of the bridges of Prince George’s County, across which he was driving, that he died; whereupon the appellee sued the appellants for damages. It appears from the record, that the appellee knew the bridge was in bad and unsafe condition ; that on the morning of the day the accident occurred the appellee, in passing to Washington, crossed the ford by the side of the bridge instead of ³² crossing the bridge; and that late in the evening, when returning, not knowing the state of water in the branch, did not cross the ford but attempted-to cross the bridge, and in doing so injured his horse. The first question presented by the bill of exceptions, arises upon the refusal of the Court to grant the first prayer of the defendants (appellants) which is as follows, “that, the plaintiff is not entitled to recover in this suit unless the accident complained of happened while he was exercising reasonable prudence and care, and as he has offered no evidence on this point their verdict must be for the defendants.” It is well settled in this State, that the burden of showing contributory negligence on the part of a plaintiff, is on the defendant.

Bacon’s Case, 58 Md., 484 . This rule has been laid down in suits against railroads for injuries occasioned by them; and we see no reason for establishing a different rule as applied to accidents occasioned by defective county roads and bridges. The presumption, that a man will act prudently and with care for his own safety, and will not recklessly rush into destruction must exist as well in the one case as in the other. The inference, of a distinction and of a different rule as applied to suits against a county for defective roads causing injury, which is sought to be drawn from the language of the Court in Gibson’s Case, 36 Md., 229 , is unwarranted.

It was not designed to make a different rule. The plaintiff in that case, hy his prayer having at his own request obtained an instruction which would seem to impose the burden on him, it was no ground of complaint to the defendant, that he was allowed to assume that burden. If there be evidence, tending to show there was contributory negligence on the part of the plaintiff, it is for the jury to say whether it existed; and in such case it ought not to be ignored in the instructions to the jury. In this case it is argued, that because the evidence showed, that the plaintiff knew of the .condition of the ³³ bridge, therefore, the burden shifted, and it was incumbent on him to show affirmatively that he used due care and prudence in driving.

It is wise for a plaintiff, shown to know of a defect, to prove that ho drove with caution; but we cannot accede to the view, that the onus of showing want of care rests any where but on the defendant. If the bridge was wholly impassable and plaintiff knew it, his knowledge would be conclusive, and the case might have been taken from the jury; but not for the reason assigned in the prayer. In this case it does not appear from the proof, that the bridge was wholly impassable. It was unsafe, and had a hole in it, into which the appellee’s horse fell, and was injured.

The simple fact of its existence, with the knowledge of the plaintiff, was not sufficient to bar recovery. It should appear that the hole rendered the bridge practically impassable to effect a bar because of knowledge. The hole might possibly have been avoided with ordinary care in driving; and the knowledge of its existence ought to have prevented carelessness on the part of the plaintiff, and naturally would have induced care on his part; but the onus of showing, that such care and prudence was not exercised still rested on the defendants. The case of Reed vs. Inhabitants of Northfield, 13 Pick. 94 , is very similar to this case.

There was a dangerous hole by the side and edge of the bridge, of which the plaintiff had knowledge. He crossed the bridge and in doing so his horse got into the hole and was seriously injured. The jury was instructed that the knowledge of the hole being there was not conclusive evidence of negligence. On appeal Chief Justice Shaw announcing the decision of the Court said that ruling was perfectly correct.

In Hoyt vs. City of Hudson, 41 Wisconsin, 105, it was held that if the plaintiff’s evidence merely tends to show negligence on his part it is for the jury to say whether it existed. Upon a careful examination of all the cases referred to by the appellants’ counsel, we do not find a different doc ³⁴ trine obtaining from that we have laid down. The case of Haton vs. Inhabitants of Ipswich, 12 Cushing, 492 , is in perfect accord with Reed’s Case we have cited from 13 Pickering. There the road was obstructed with snow to an extent rendering it unsafe, but not absolutely impassable.

The plaintiff had passed over its entire length after the obstruction occurred, and of course, knew its condition* though h'e met with no accident. In passing over it a second time with that knowledge he was injured. It was held that this knowledge was not conclusive evidence to bar his recovery. He did recover, and on appeal the ruling was sustained.

Tisdale’s Case, in 8 Metcalf, 392, lays down the law for a case where the road is so bad, a bridge so impassable, as to make it foolhardy to attempt a passage. Farnun vs. Town of Concord, 2 N. H., 394, and Falsom vs. Town of Underhill, 36 Vermont, 581, are to the same effect. The doctrine to be extracted from all these cases is, that if the defect in the road or bridge be such as to make the same