County Commissioners v. Mandanyohl

Jones, J., delivered the opinion of the Court. This case is before the Court upon appeal from the Circuit Court for Charles County where it originated in an action on the case brought by the appellee against the appellant for negligently permitting a certain public road of said county to be out of repair whereby the appellee while using the same and using due care was injured by having his leg broken. The defendants pleaded “that they did not commit the wrong alleged.” ¹⁵² The evidence showed, that the plaintiff was a resident of Charles County; that on the 25th of February, 1898, about 9 o’clock at night when returning from a funeral and driving at a moderate gait over a public road leading from Rock Point by La Plata in said county, he drove into a hole, which the plaintiff characterized in his testimony as “ a very dangerous hole,” and to use his language “ it started to throw me out and I caught myself and it threw the pipe out of my mouth” when the wheel went down in the hole; that he got out to pick up his pipe and could not find it; he lighted a match and looked around for his pipe and could not find it; the match went out and he made another step, and as he did so he stepped down into this hole and broke his leg; that it was very dark ; that the plaintiff knew the hole was there ; that he had travelled over the road frequently; that there were two holes there—sixteen feet apart—one a deep sudden hole, full of water ; that a person passing over this road in the day time had to use care “in order to get between these holes ; ” that both were deep holes ; that it was necessary to pass between them to get up the road at all; that the plaintiff had called the attention of one of the County Commissioners to these holes being in the road in November previous to the accident, and they had been in the road for “ all of a month before ; ” that they were not attended to previous to the accident to the plaintiff; that plaintiff lived about two miles from the place of accident and travelled the road about twice a week ; that the roads were very bad and very muddy ; that the plaintiff had been over this road the day before and passed over it about four times a week ; had passed over it in the night time but seldom. There was evidence that the plaintiff had been drinking and some evidence that he was intoxicated.

In addition to what the plaintiff testified to, as to the dangerous character of the place of accident, there was further testimony that the road in question was “ so bad that it was dangerous ; ” and that it was difficult in passing over the road to keep out of the hole in the day time. Opposed to this there was testimony that there was plenty of room for any one who knew the place ¹⁵³ ■of the accident to pass. There was also testimony that persons travelling on this road could avoid passing the holes at the place of accident by leaving the public road just at the place of accident and going through what was spoken of as Kelly’s lot; but that there was a ditch to cross, of, according to one witness, eighteen inches or two feet, and according to •another, of six inches. It is believed that in substance the foregoing is jail of the testimony that it will be necessary to notice.

There was testimony going to show the extent and character of plaintiff’s injuries but the controversy in the case is not in regard to that. At the conclusion of the testimony the plaintiff’s counsel submitted six prayers of which the trial court granted the second and fifth, modified and granted as modified the first, fourth and sixth and rejected the third. The defendants’ counsel submitted seven prayers of which the Court granted the second, third and seventh, modified and granted as modified .the fourth and fifth and rejected the first and sixth. The defendants excepted to the action of the Court in granting the prayers of the plaintiff, in modifying the prayers offered on their behalf and in rejecting their prayers that were rejected.

This is the single exception contained in the record. The first prayer of the defendants asked that the jury be instructed that there was “no evidence in the case legally sufficient to entitle the plaintiff to recover.” There was no error in rejecting this prayer. There was evidence going to show that the defendants had negligently suffered the road upon which the plaintiff was travelling at Le time of the accident to be and remain out of repair, and that the accident that caused the injury to the plaintiff was due tto this condition of the road. From the testimony recited this is too apparent for further discussion.

In the defendant’s fourth prayer the .measure of care required of the plaintiff ■under the circumstances detailed in the prayer by the Court’s modification thereof was correctly stated. There was radical error in the defendant’s fifth prayer as submitted, as respects the part thereof that was eliminated therefrom by the Court. “Opportunity for avoiding the danger by another convenient ¹⁵⁴ route or routes known or from the