Mayor of Baltimore v. Locke

Henderson, J., delivered the opinion of the Court. The plaintiff below, appellee here, recovered judgments of $39,000 against the City and one Matthews for personal injuries sustained in an automobile collision. The City appeals, challenging the sufficiency of the evidence of its primary negligence, the refusal of its prayer on the point of contributory negligence, and the admission of certain evidence as to its actions subsequent to the accident. ¹⁵² The collision occurred at 6:15 A. M., according to Locke, or 6:20 A. M., according to Matthews, on the morning of November 12, 1955. The time was either 26 or 31 minutes before sunrise, the weather dry but cloudy.

There was some conflict in the evidence as to visibility, but most of the cars on the highway had their headlights on. The street lights had been turned off at 6:15, before the accident occurred. The speed limit was 25 miles per hour. Locke was driving east on Holabird Avenue, a dual highway 40 feet wide with 2 unmarked lanes for traffic in each direction and a double yellow line painted down the center.

Matthews was driving west with his headlights on and pulled to his left around a barricade in the westbound lanes marking a hole in the street. He collided head-on with Locke’s car at about the center of the eastbound lanes. Matthews testified he did not see the barricade until he was a car length from it, although he admitted that his headlights had a range of 120 feet. He did not see any light on the barricade.

He testified he was driving at 25 miles per hour and could have stopped in a car length, but he became frightened and swerved to his left without attempting to stop. His car left no skid marks. The point of collision was 52 or 57 feet west of the barricade. He saw the headlights of eastbound cars in the distance, but did not see Locke’s car until the moment of impact.

He testified that Locke did not have his headlights on. He testified that he was on his way to work, but had never driven his car to work before. Locke testified that he had his headlights on. He saw the barricade, which was illuminated by the headlights of Matthews’ car.

In fact, he testified that he knew it was there and had himself pulled around it when returning from work the day before, although there was other testimony that the barricade had not been in place at that time. When he was 80 feet from the barricade,' he saw Matthews’ car pull out around it. He kept straight ahead, but applied his brakes, leaving skid marks 28 feet in length. After the collision, both cars were in about the center of the eastbound lanes, the rear wheels of Locke’s car being in the lane nearest to the center line.

It appears from a photograph in evidence that after the ¹⁵³ collision there was room for cars to pass in the south eastbound lane. The witness, Cox, who was following Locke, testified that he saw the barricade, but didn’t remember whether there was a lantern on it at the time of the accident or not. In his deposition he had said that there was a lantern there but he didn’t know whether it was lighted. The barricade had not been there the previous afternoon, and at that time he observed a depression there that some cars were hitting, “but they were getting through at that time”.

It was shown that the Bureau of Water Supply of Baltimore City had made an opening in the bed of Holabird Avenue on November 3, 1955, to repair a leak in the water main located about 15 feet below the surface. It was about 6 feet in length across the center of the westbound lanes and about 9 feet wide. On November 5, the repair was completed and the hole “backfilled”. On November 7, the cut was “cold patched” in accordance with standard practice, and the lanes opened to traffic.

Permanent repairing cannot be done until the soil has been compacted by use, but inspections of the patch were made three times a day on November 8, 9 and 10, and the patch showed no signs of depression or wear. It was 5 inches thick and laid over crushed stone. Officer Heidel, of the Baltimore Police Department, testified that he went on night duty at 12:01 A. M. in a police car. His post included the area in question, and it was part of his duty to look out for road conditions that might be hazardous.

At 12:30 A. M. he observed that the cold patch in the bed of Holabird Avenue had settled to a depth of about 8 inches, making a hole about a foot square in the center of the westbound lanes, tapering off toward the north curb, and creating what he thought was a traffic hazard. (The witness, Kecken, testified the hole was 2 feet deep when he saw it after the accident.) Officer Heidel went to a point nearby, where a new street was being laid, and obtained a stringer 10 feet long and a cross-buck painted yellow, with danger signals on it, and a lighted red lantern. With this material, he erected a barricade on the east side of the hole, placing the cross-buck about 5 feet north of the center lines, fitting the stringer into it extending to the north, and hang ¹⁵⁴ ing the lantern on the cross-buck. He shook the lantern and it seemed to have enough oil in it to last out the night.

He then called the Department of Highways and reported what he had found and what he had done. His report was received by the clerk on duty, and a .message was left on the superintendent’s desk, who received it when he came to work at 7:30 A. M. A crew was then sent to repair the hole. The emergency night crew was apparently not called by the clerk on duty. Officer Heidel testified he drove past the barricade several times during the night and observed the lantern burning, the last time being at 4 A. M. He came to the scene of the accident shortly after it occurred, and assisted in directing traffic.

He then observed a smashed lantern near the barricade. The case against the City rests upon its alleged negligence in failing to keep its