County Commissioners v. Wright

Urner, J., delivered the opinion of the court. The appellee was one of the occupants of a Ford automobile which fell through on open draw in a bridge maintained by the appellants over Cambridge Creek in the City of Cambridge. For his personal injuries, thus occasioned, he recovered the judgment which is the basis of this appeal. The only bill of exceptions in the record is concerned with the rulings on the prayers.

The accident occurred at night. It was testified by the appellee, who occupied a rear seat in the automobile, and by George Ricketts, the owner of the car, who was driving it at the time, that there were no lights then observable anywhere on the bridge, and no warnings of any kind were given as to the condition of the draw, and that they did not see the opening into which they fell. According to the testimony offered by the -appellants the approahesi to the draw were brightly iEuminated by two electric arc lamps when the accident happened, and there were red sigual lights displayed on the drawbridge, indicating that it was open for the passage of vessels. In vievy of the conflict of the evidence as to' whether the lights required for the protection of traveler’s oh the bridge were in fact extinguished as the draw was being; operated on the occasion referred to, the question of primary negligence could not properly have been withdrawn from the jury.

The most important question in the ease is whether* a verdict should have been directed for the appellants- on the ground of contributory negligence. If the appellee had been in the position of the driver of the automobile, it would seem clear that his own negligence had contributed to his misfortune. ⁵⁷⁹ The oar was driven forward on the bridge, at accelerating speed, in spite of the fact, to which Ricketts, the driver, testified, that no signal lights were visible showing whether the draw was open or closed. The. occupants of the automobile were familiar with the bridge and the system of lights by which the condition of the draw was intended to be revealed. If the draw was open, red lights were displayed to travelers on the bridge, and if it was closed, the lights appeared green.

As the automobile approached the draw1 it was. moving, as Ricketts testified, at the rate of four or five miles an hour, and he had begun to increase its speed just before the car plunged into the creek. The headlights of the automobile should have enabled the driver to see some distance in advance, and if he had been as watchful and careful as the conditions demanded, he ought to have seen the open draw and stopped his; car in time to avoid the accident. It- was certainly not an act of ordinary prudence to proceed merely on the assumption that the draw; was closed, if the customary signal lights were not there to assure him that the way was safe. But the lights were in elevated positions, twenty and thirty feet above the floor of the bridge, and the appellee was on the rear seat of the car, where his view was restricted by the top- and curtains;.

Whether, being thus situated, his failure to anticipate the accident and intervene to prevent it was contributory negligence as a matter of law is the question to be determined. The negligence of the driver was not imputable to the appellee, as the former was operating the car as its owner1 and not as the appellee’s agent or employee. For some days preceding the accident Ricketts had been employed by the appellee in the work of gathering holly. They both lived near Federalsburg, and prior to the day of the accident the appellee- had used his own car in taking Ricketts and others to the place where the holly was being gathered.

On that day the appellee’s car was