County Commissioners v. Gaylor

'Thomas, J., delivered the opinion of the Court. The appellee, on the 7'th of August, 1920, while driving his automobile on one of the public roads or highways of Washington County, was injured, and had his automobile damaged, by the falling of a limb or branch of a willow tree-standing within or near the highway, and brought this suit .against the 'County Commissioners of Washington County to recover for the injury and loss he sustained. The record of the trial in the court below, which resulted in a verdict and judgment for the plaintiff for $863, contains three exceptions, one to the refusal of the court to strike out certain evidence, one to the rejection of defendant’s prayer to withdraw the ease from the jury at the close of the plaintiff’s evidence, and the ether to the action of the court at the conclusion of the evidence in granting the plaintiff’s first and second prayers and rejecting defendant’s first prayer. The appellant admits that it is specially charged with the dntv o-f keeping the public roads of the county in good repair and safe for the travel of the public (Anne Arundel County v. Duvall, 54 Md. 350 ; Rowe v. Balto. & O. R. R. Co., 82 Md. 493 ; Anne Arundel Co. v. Carr, 111 Md. 150 ), and says in its brief: “It is submitted that the only way the appellant can he held liable fox* damages resulting from the accident is that- the limb or the tree from xvhich the limb fell was defective and in a dangerous condition, and that the •County Commissioners, their agents or employees, charged with the duty of maintaining the roads and highways of the ³⁷⁷ Comity, in repair and in safe condition, had knowledge of such dangerous condition, or by the exercise of reasonable care could have known of said condition.” The ground of the defendant’s appeal is that there is no evidence in the case to showr that the defendant knew of the. dangerous condition of the limb or tree, or by the exercise of reasonable care could have known of such dangerous condition in time to have prevented the accident, and that there was, therefore, error in the granting of the plaintiff’s first and second prayers, and in the rejection of its first prayer, by wbieb it asked the court to direct a verdict for the defendant.

Evidence was offered at the trial tending to show that the tree in question was old, and stood from fifteen to twenty-six feet from the center of the highway; that at.the distance of from six to seven feet from the ground the trunk of the tree “branched out” into three large limbs or branches, one of which, and the one that fell on the plaintiffs car, was about sixty or seventy feet high and extended across the highway ; that this limb or branch was about twenty-four inches in diameter at the butt, and that at the point, of the trunk where the limb gave way the trunk and limb were decayed; that near the crotch of the tree, or the point where, the trunk of the tree divided and on the side of the trunk next to the highway there were several large knot holes, about six inchs in diameter, and other evidences of decay; that there were also two large cracks in the trunk of the tree, about six inches deep and extending from the crotch nearly to the ground, and that one of these cracks Was on the side next to the road; that that condition of the free had existed for some time before the accident, and that, at the time the limb gave way and fell across the highway, striking the plaintiff’s automobile and causing the injury complained of, there was no storm and only a moderate wind. The burden was on the