County Commissioners v. Pardee

Walsh, J., delivered the opinion of the Court. This suit was brought by Mrs. Laura Alice Pardee, the appellee, against the County Commissioners of Kent County, the appellants, to recover for injuries received by her on August 19, 1923, when the Ford automobile in which she was riding with her husband ran over the edge of a bridge on the road from St. James Church to. Worton in Kent County, and fell upside down into the stream below the bridge. The testimony shows that on the afternoon of August 19th, 1923, the appellee, her husband, and several of their children drove over the road and bridge in question to visit the ■appellee’s brother, and they were returning about eight o’clock in the evening to their own home over the same road when the accident complained of occurred.

The road ap ⁷¹ proaeliing the bridge on the return .trip went down grade for some distance until it got to within about thirty-five feet of the bridge, at which point there was a puddle of water, and after passing this puddle there was a slight ascent to the edge of the bridge. This puddle was formed by water which flowed from a spring near the side of and above the road, and it accumulated in the road because the ditches on either side were choked up, thus permitting1 most of the water to flow into the road and down the wheel tracks to the depression near the end of the bridge. At the time of the accident this depression “was covered with water for a distance of four or five feet, the maximum depth was six inches, and the water extended across the entire width of the road. It also appeared from the evidence of Mr. Taylor, the road engineer of Kent County, that the surface of the water was two inches below the level of the lower side of the road, so that the maximum depth of the depression or hole was really eight inches.

The appellee’s husband, who was driving the car, testified that in approaching the bridge the wheels of the car got into the ruts formed on either side of the road by the traffic and deepened to five or six inches by the water which flowed down them from the spring above mentioned; that he was unable to get the wheels out of these ruts, and so went right through the center of the puddle, and that as he did so the car received a bump or jolt which damaged the steering gear and placed the car beyond his control. He further testified that he was not going more than ten miles an hour when he reached the puddle, that after going through the puddle the car ran up on the bridge; that when he tried to steer it after it left the ruts and reached the bridge he found the steering mechanism would not work; that he immediately turned off his switch and reached for his emergency brake, but that before he could stop the car the front wheels turned to the left and the car plunged over the left side of the bridge and fell upside down into the stream below. It also appeared that there was no railing on the left side of the bridge, the one formerly there having rotted away. ⁷² At the conclusión of. the testimony the learned court below granted the plaintiff’s first and third prayers and refused to grant the defendant’s first, second and sixth prayers, and its action in this regard is the basis of the only bill of exceptions in the case. The plaintiff’s first prayer instructed the jury that in passing upon the facts in the case they were “to regard the county road engineer, Gilbert L. Taylor, as the agent of the County Commissioners of Kent County.” Ordinarily the court determines what facts are necessary to show agency, and the finding of those facts is left to the jury, but the question of the road engineer’s agency in this case depends upon the construction of certain local statutes of Kent County, and this court determined in the case of Richardson v. County Commrs.

Kent Co., 120 Md. 153, 161 , that under the statutes then in force the road engineer, “with respect to liability for the injuries resulting from the bad condition of the public roads, should be regarded as the agent of the Countyi” We know of no change in these statutes which would justify our modifying or overruling what was then decided on this point, and we accordingly find no error in the granting of the plaintiff’s first prayer. The plaintiff’s third prayer is the usual damage prayer granted in personal injury cases. The defendant contended that some of tire language used in this prayer indicated that the plaintiff had been permanently injured, anl that there was no testimony to this effect offered, but this objection was not pressed at the argument, nor could it have been successfully pressed. In the first place such an objection should have been made the subject of a special exception, and no special exception appears to have been taken.

Code, art. 5, sec. 10; Stewart Taxi Service Co. v. Roy, 127 Md. 79 . And in the second place we do not think the prayer indicated the permanency of the plaintiff’s injuries to any greater extent than was justified by the evidence. The defendant’s first prayer asked the court to instruct the jury that “under the pleadings and evidence in this case there is no evidence legally sufficient to entitle the plaintiff to recover.” This court has repeatedly held such a prayer in ⁷³ sufficient to raise the question of a variance between the pleading’s and the proof, and, as the question of the legal sufficiency of the evidence in this case was raised by the defendant’s second prayer, there was no error in rejecting its first prayer. Code, art. 5, sec. 11; Askin v. Moulton, 149 Md. 140 ; Day v. Weinstein, 148 Md. 104 ; Baltimore v. Terio, 147 Md. 332 , 334; Balto. & O. R. R. Co. v. Walsh, 142 Md. 237 .

The defendant’s second prayer was as follows: “The defendant prays the court to instruct the jury ‘that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant.’ ” The obvious point raised by this prayer is whether, under all the evidence, the question of the defendant’s negligence in maintaining the road and bridge in this case should have been submitted to the jury. The' defendant mentions this point, but it was stated at the argument of the case that the defendant relied chiefly on the contributory negligence of the plaintiff, and most of its brief is devoted to a discussion of this alleged contributory negligence, and as the defendant offered no prayer specifically raising the question of the plaintiff’s contributory negligence, we assume that it considered the point sufficiently raised by its second prayer above quoted. Whether the prayer had this effect or not will be considered later, but on the first point raised by the prayer, namely, the sufficiency of the evidence to go to the jury on the question of the defendant’s negligence in maintaining the road and bridge, we are clearly of the opinion that the evidence was sufficient. It was testified by various witnesses that the road had not been repaired for a year or more prior to the accident; that the ditches along either side of the road had become filled with sand and wneds, thus causing the water from the spring near the road to flow over into the roadbed and down the wheel ruts to the depression near the end of the bridge, in which depression the water accumulated and formed a puddle.

At the time of the accident this hole was. filled with water ⁷⁴ to the depth of six inches at its deepest point, and the surface of the water was two inches below the level of the lower side of the road, was three inches lower than the other side of the road, extended across the entire roadbed, and covered a space four or five feet long measuring lengthwise along the road. There was also a great deal of testimony by people who used the road that their teams endeavored to straddle this hole or puddle when passing it, and that the condition of the road at this point was bad because of this hole and the water which filled and covered it. There is testimony that the grade going up from either edge of this puddle was slight, and while there is also testimony that the sides of the puddle itself sloped gradually, so that a vehicle entering it from either side would not be bumped or jarred, we think there is ample other testimony in the case which would justify a jury in finding that the drop from either side, of the puddle into the bottom of it was quite abrupt. Certainly the plaintiff, her husband, and children testified that they received a very severe bump when they entered the puddle on their return trip, and the defendant’s testimony that the hole formed by the puddle was eight inches deep at its deepest point and that the