Mayor City Coun., Cumberland v. Turney

Offutt, J., delivered the opinion of the Court. This appeal is from a judgment for the plaintiff in an action brought by Milton Turney, by his father and next friend, against the Mayor and City Council of Cumberland, to recover damages for injuries received in an automobile accident which occurred-on November 6th, 1938, on Washington Street in that City. ³⁰⁰ There was in the case evidence tending to prove these facts: Washington Street is a public highway of the City of Cumberland, running in a general easterly and westerly direction. It begins at Greene Street and runs west at varying grades over Fechtig’s Hill. In its course it intersects Semmes Avenue near the 700 block, and from that intersection continues west over Washington Street Hill.

Running northwest from that intersection, beginning at about 120 feet therefrom, its direction changes abruptly from northwest to southwest in a curve subtending an angle of 57 degrees 45 minutes on a radius of 78.8 feet. Proceeding west from Semmes Avenue and through the curve the grade ascends at an angle of 9 degrees following the natural contour of the land. The width of the street varies, east from a point near the scene of the accident it is 60 feet, west of that point it is 50 feet, but the width of the driveway is uniformly 30 feet, so that the difference in width is in the sidewalks, which are laid out with" grass plot and are paved and guttered. That part of it under consideration here was first improved under an ordinance of the Mayor and City Council of Cumberland, passed in 1916, which provides “That said part of said Washington Street shall be paved in such manner and under such principle, and with such kind and quality of paving material, and with such preparation -as to grade of the street and materials for the bed of the same as the Commissioner of Streets and Public Property and the City Engineer may elect.” The driveway was originally paved with concrete, but under an ordinance of 1935 it was resurfaced with an asphalt concrete, referred to in the evidence as “blacktop.” The elevation of the crown of the road above the edges at the curb varies from six or seven to nine or ten inches, so that the roadway slopes laterally from the center to the sides in the ratio of from one-half to two-thirds of an inch to the foot.

About 200 feet east of Semmes Avenue there was a 250 candle power electric light, and from that point west ³⁰¹ for about 700 feet the center of the roadway was marked by a 6-inch yellow line, which for a short distance on either side of the curve was wavy or undulating. About 60 feet west of the light the word “Slo” is painted on the surface of the road in letters 9 feet high, about 60 feet west of that sign on the north side of the road there is a sign bearing the legend “Slow-Danger,” the word “Slow” in red reflector letters on a black background and the word “Danger” in 3% inch black letters on a white background» at Semmes Avenue and also at a point west of that, and about 50 feet east of the curve, there are other “Slo” signs similar to the first painted on the road, and at the apex of the curve there is a roadside sign on which appears the word “Slow” in crystal reflector letters 6/> inches high on a black background, and at that point too there is a 250 candle power electric light. On the north side of the street opposite the west side of the curve are two brick houses separated by a garage, one occupied by Robert Yancey, designated as 711 Washington Street, the other, just east of that and designated as 709 Washington Street, is occupied by Clarence Lippel. About 30 feet west of Yancey’s house a pole stood at the edge of the north curb.

On the night of the accident Milton Turney, nineteen years old, and employed as an assistant mail messenger, left his father’s home in Oakland, where he lived, in a friend’s automobile, to accompany the friend, Stanley Stark, on a visit to the latter’s aunt, who lived in Cumberland. They left Oakland at 12 or 12.30 o’clock at night and, after driving rather aimlessly about, arrived at Cumberland at about 3 o’clock in the morning, and went to the place where the aunt had formerly lived, but found that she had moved, and then drove about the city in a somewhat desultory search for her home, and at about 5.30 o’clock in the morning were driving west on Washington Street at the 700 block. At that time it was quite dark and the street lights were burning. In passing the curve the automobile skidded or side slipped and crashed into ³⁰² the pole west of the Yancey home.

As a result of the collision the car was wrecked, and Turney and Stark severely injured. Stark, who was driving the car, said that at the time of the accident he was driving very slowly on the extreme right side of -the road, right next to the curb, that he did see one small sign on which was the word “Slo” but but he saw no other signs, except the wavy line in the middle of the road. When asked to tell how the accident occurred,' he said: “Well, we came suddenly on the curve and turned sharp to the left; and the car — something pulled the car strongly to the right, and it ran up over the curb, and the wheels were up over the curb on the right side and in between the walk and the curb, and crashed into the telephone pole. Ran right along the side of the curb, right before we got to the pole * * Turney said that just prior to the accident he was “just sitting there talking to Stanley” and that “as we were approaching this curve, the car, after it got on the curve, it seemed that there was a slant there, and somehow or other, this slant seemed to — don’t know — take the car and push it up on the curb.

That is the way it was to me. Pushed it up on the curb and just deliberately pushed it on into that telephone pole.” He saw the sign which had “Slo-Danger” on it and “that snake in the middle of the road” which got him “confused,” but saw no other signs. The car was apparently in high gear at the time of the accident. Alec G. Shaner, a defendant’s witness, said that the automobile was “completely demolished,” that it was a “complete wreck,” and that it had been “junked,” and Stark said that he ordered no repairs for the car, that so far as he knew his mother had ordered none, and it is apparent from his testimony that he never saw it nor inquired about it after the accident.

The weather at the time of the accident was clear, the middle of the road was dry, but the sides were moist from the dew. ³⁰³ Robert Yancey, who lived at 711 Washington Street, said that at the time of the accident the road at that point was surfaced with black top of fine texture and when wet was “extremely slippery,” that in driving over it your “wheels will spin and it is hard to get hold of them.” He considered the road at that point unsafe “because there were no markers to show strangers which way that curve went, and the condition itself is bad enough for drivers who know the street. The center line in the center of the street was very, very dim.” He had an idea that the grease and oil from passing automobiles made it slippery, but added that that was “no more than customary traffic puts on it.” Clarence Lippel, who lived next door to Yancey, said that the curve was sharp, that the road surface was slippery “as glass” when Wet, that there had been more than a dozen accidents there within the year, and that the road at that point was dangerous, and he added that accidents happened “every week, practically, sometimes several a week.” He admitted however that there was at times a “continuous stream of traffic” at that point and at other times very little, if any. Herbert A. Dye, who was also familiar with the street at the place of the accident, said that the curve was dangerous because it was “sharp, because it is slick— several reasons why it is,” but on cross examination he gave this testimony: “Q. If this curve was as dangerous as you want the jury to believe, how come you always used this street? A. I thought I had it licked.

I always was very careful. Q. You drove around there many hundreds of times and didn’t have a wreck? A. Yes. I was an expert on the curve.

Took great pains to go around it right. * * * Q. Then you got around several hundred times and had no accident? A. Yes. Q. Would your opinion be affected by the number of times you got around there safely? A. Not at all.

Q. The fact you went around there hundreds of times safely would not lead you to believe it could be driven safely? A. You can creep over a dangerous spot when you know it is there.” ³⁰⁴ There also was offered in evidence a letter from residents who travelled over the street more or less frequently, addressed to the corporation, calling its attention to the dangerous condition of the road, and asking that it be remedied. The evidence submitted on behalf of the defendant related almost exclusively to the construction, surfacing, and lighting of the road, and the adequacy of the warning signs thereon. Ralph L. Rizer, the city engineer of Cumberland, and an engineer who had specialized in road construction, said that black top was generally known among engineers as practically non-skid material, that actually there was no such thing as an absolutely nonskid material, although the black top was safer than the old concrete surfáce.

He said too that there were no structural defects in the 700 block of Washington Street, and that it was designed for a speed of fifteen miles per hour, and that for cars driven under a certain speed the curve was as safe as the straight road, but not at higher speeds, and that the road at that point was sufficiently lighted to permit careful drivers to traverse it in safety.' After stating that black top was as near a non-skid material as there was “on the market,” he testified: “Wouldn’t it be possible for — with your engineering knowledge — for you to go up on Washington Street — and you call it ‘scarifying,’ but I will call it ‘making the street less smooth, purposely and intentionally.’ Wouldn’t that be possible for you, with your knowledge? A. It would be possible to scarify that street, but it is not being done in this city. Q. From your experience as city engineer and your experience in laying and grading that street, do you think it would be an engineering mistake to elevate the northern part of the curve as you round it? A. I think it would be very bad practice and is not being done in cities.

Q. You think it would be less dangerous if that curve were elevated on its northern side? A. It would probably encourage speeding and endanger the value of the properties. Q. You haven’t answered it. Do you think it would be less dangerous ³⁰⁵ or more dangerous?

A. I think it would make it no safer to the man who would drive his car within the speed limits required.” Philip J. Arendes, construction engineer, who lived on Washington Street near Semmes Avenue, said that the construction of Washington Street conformed to the standard engineering practice for cities, and that the black top surfacing material is recognized by engineering authorities as a non-skid type of pavement, and that he never heard of banking curves in city limits. Asked whether the curve should be improved he said: “It could be improved, but, as I said before, you can get cars around there at one hundred miles an hour, but is that improvement there?” Alvin H. Wilson, a construction engineer, said that the construction of the street was in conformity with standard practice. Asked if it would be good engineering to lower the south side of the street bed, he said that it would be for high speed traffic, and then testified: “Would it be bad engineering practice for low speed traffic? A. In an area that has already been developed, usually it involves some property damage.

If the curve in the first place was designed as a safe course for the speed limit it was to be used for, and if that is true, there wouldn’t be any particular necessity in elevating one side of the curve. Q. You heard the testimony, and heard that there have been a great many accidents at that curve? A. Yes. Q. Don’t you think as an engineer you could change the plan of the curve and relocate it or reconstruct it so as to make it much safer?

A. Yes, I think it would be possible. * * * Q. Safer for what? A. For high speed traffic. * * * Q. Wouldn’t it be safer for moderate speed traffic? A. I don’t think it would be. I can’t see any reason why it would be.” Leander Schaidt, a former city engineer, also said that the street construction at that point conformed to sound practice, as did Leo T. Downey, district engineer of the State Roads Commission.

On cross examination Downey said that scarifying or disking the surface of slippery ³⁰⁶ roads was a recognized engineering practice until the surface could be chipped and oiled, but that it was not customary to oil of chip specification C, and that black top had been put on “the real slick” roads in an effort to “non-skid” them and it had been successful. He also gave this testimony: “What is the purpose of banking curves in the open country? A. To give persons a chance to get around there at a high rate of speed. * * * Q. It also helps them to get around there at a low rate of speed, doesn’t it? A. It would depend upon the bank.

If you get too. much bank, you might have a sideways slip. Q. If you bank it as steep as the motorcycle ride in a carnival, you might fall down off it? A. You sure would. * * * Q. Do you know of any engineering practice which recommends the banking of a curve in a residential district? A. In cities?

I don’t know as I do.” There was an offer to show that a traffic test, over a period which included days when there was rain and snow, showed that an average of 600 cars a day passed the curve without accident. That offer was refused, but Oscar A. Eyerman, chief of police of Cumberland, was permitted to testify that he had driven around the curve safely many times at times as fast as 30 or 32 miles an hour. There was evidence that a “dummy traffic officer,” carrying warning signs, which was usually in the middle of the street east of the curve, was missing on the night of the accident. There was no evidence or suggestion that either Turney or Stark had been drinking, and both were licensed and experienced drivers.

It was also shown without contradiction that at the time of the accident the surface of the street was smooth, flat, and without holes. At the close of the whole case the plaintiff offered two prayers, which were granted, and the defendant one, a demurrer prayer, which was refused. Those rulings are the subject of thp fourteenth and the most important exception submitted by the record. ³⁰⁷ The issue to be first considered is whether the facts recited above are sufficient in law to support a finding that defendant was guilty of primary negligence. The appellant charges negligence in eleven particulars, most of which may first be reduced to three categories, and eventually to one.

The first is that the street was not properly planned or designed, the second that it was not properly lighted, and the third that it was not properly “signed.” Those specifications include two items not within those categories, but they are of little importance, one is that the city permitted “oil and foreign substances” to remain on the street bed, the other that it failed to maintain the “dummy officer” in its place at the time of the accident. There is not the slightest evidence in the case that there was any accumulation of oil or other “foreign substance” on the street bed greater or different from that found on any street over which there is much automobile traffic, and since Stark had to pass five other warning signs before he passed the curve, even if it could be held that the city was bound to maintain such a sign, it could have given him no more information than he should have had from the five signs which were there. The design and the lighting of the street, as well as placing on it signs warning the travelling public of any latent danger which travellers on it might encounter, were all matters committed to the judgment and discretion of the administrative officers of the corporation, and the real question in the case is whether the municipality must respond in damages for their errors of judgment. The principle that a municipality, which has been granted the means to do so, is under a duty to keep the public streets and highways, under its management and control, in a reasonably safe condition, is too firmly established in this state to require either argument or authority.

Baltimore v. State 173 Md. 267 , 195 A. 571 ; Baltimore v. Eagers, 167 Md. 128, 136 , 173 A. 56 . So, where injuries were caused by a limb of a tree falling in ³⁰⁸ a public road, Baltimore v. Eagers, supra, a hole in a sidewalk, Baltimore v. Bassett, 132 Md. 427 , 104 A. 39 , a trench in a pavement, Burke v. Baltimore, 127 Md. 554 , 96 A. 693 , a hole in a pavement, Annapolis v. Stallings, 125 Md. 343, 346 , 93 A. 974 , a girder in the center bf the roadway on a bridge unlighted and unmarked, Baltimore v. Thompson, 171 Md. 460 , 189 A. 822 , ice on a sidewalk, Baltimore v. Marriott, 9 Md. 160 , ice in a street, Magaha v. Hagerstown, 95 Md. 62 , 51 A. 832 , one bicycling on a sidewalk, Hagerstown v. Klotz, 93 Md. 437 , 49 A. 836 , a hole in a sidewalk, Keen v. Have de Grace, 93 Md. 34 , 48 A. 444 , a stump in a roadway, Delmar v. Venables, 125 Md. 471 , 94 A. 89 , the absence of a guard rail at the end of a dark street leading over a dock, Biggs v. Baltimore, 129 Md. 686 , 99 A. 860 , or material falling from an unguarded structure on a public street, Hagerstown v. Crowl, 128 Md. 556, 557 , 97 A. 544, 546 , liability of the municipality was predicated on a breach of that duty. But in Hagerstown v. Crowl, supra, there is an intimation that, although the municipality, where it is under a duty to act, will be subject to liability if it fails to act at all, or does act but acts negligently, it will not be liable if it does make an honest effort to perform its duty, but through some error in judgement fails to do all that it should have done, or does something which it is required to do in an inadequate or imperfect way. In that case the court said: “The municipal duty of keeping the streets reasonably safe for public use could hardly be said to be properly fulfilled if elevated structures are permitted to be built along the thoroughfares without any provision being made for protecting persons, on the street from the risk of harm to which they may be exposed by the building operations.

The possibilities of injury from such a source are sufficiently apparent to call for some regulative action on .the part of the municipality in regard to such conditions, in order that it may be in a position to plead the full performance of its duty as against such a claim as the present.” Hagerstown v. Crowl, 128 Md. 556, 559 , 97 A. 544 . ³⁰⁹ So, while a municipality has been held subject to liability if it makes no effort to perform a duty by exercising a power which the law has granted it to be used, or where, in the performance of the duty, it fails to exercise ordinary care to accomplish the purpose for which the power was given, as in Havre de Grace v. Fletcher, 112 Md. 562, 568 , 77 A. 114 , where beer kegs were piled on a sidewalk in such a way as to endanger travellers thereon, Baltimore v. Beck, 96 Md. 183 , 53 A. 976 , where a pile of bricks was left in a street without a light or other warning, Cochrane v. Frostburg, 81 Md. 54 , 31 A. 703 , where the city failed to pass an ordinance excluding cattle from the city streets, Taylor v. Cumberland, 64 Md. 68 , 20 A. 1027 , where the city failed to enforce an ordinance forbidding coasting on city streets, Baltimore v. Pendleton, 15 Md. 12 , where a dangerous trench was left in a public street, Calvert County v. Gibson, 36 Md. 229 , where a road was out of repair, Baltimore County Commrs. v. Baker, 44 Md. 1 , where a bridge was out of repair, Eyler v. County, 49 Md. 257 , where there was a defective bridge, and Anne Arundel County v. Duckett, 20 Md. 468 , where a road was out of repair. In none of those cases did the court approve the principle that a municipality is subject to liability for injuries resulting from erroneous but honest exercise of the judgment and discretion reposed by the law in its administrative officials. The statement so often repeated in the cases that it is the duty of the municipality to keep its public highways safe for travel is subject therefore to the qualification that the duty is discharged if the municipality exercises ordinary and reasonable care in its performance, for it is not an insurer of the safety of persons travelling thereon even though they are injured while in the exercise of ordinary care. Baltimore v. Thompson, supra; Elliott on Roads and Streets, sec. 793; Birckhead v. Baltimore, 174 Md. 32 , 197 A. 615 .

Nor must negligence be inferred from the mere fact that a road or street is unsafe, for danger may inhere ³¹⁰ in, and be inseparable from, its location, and absolute safety cannot be attained except at a prohibitive or impracticable cost, as in the case of a road over a mountain, where of necessity the grades must be steep and the roadway narrow and winding, or in a road at the foot of cliffs or palisades where falling rocks, earth, or debris may endanger the traveller. In such a case there may obviously be danger without negligence, so the question not unnaturally occurs as to just what are the limits of the discretion reposed in the administrative agencies of a municipal corporation, who are charged with the construction of a road or other public improvement which is inherently and unavoidably dangerous. Or, to put it in another way, if such officials secure the advice of specialists whose skill, experience, ability, and standing are generally recognized as qualifying them to give such advice, and it formulates plans based on such advice, and employs skilled and competent agencies to execute the plans, is the municipality liable if it turns out that safer or better plans might have been adopted, or that the adoption and execution of the plans involved an error of judgment? On that question the authorities split.

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