Mayor of Baltimore v. Mattern

Urner, J., delivered the opinion of the Court. While the appellee was passing over a street crossing in Baltimore, with her little child in her arms, her foot was caught in a hole between two flagstones and she was thrown down and sustained a serious injury to her knee, for which she brought suit against the city and recovered the judgment which is the occasion of this appeal. The principal exception in the record was taken to the refusal of the trial court to instruct the jury that, according to the undisputed evidence the plaintiff did not exercise reasonable care to avoid the accident, but by her negligence contributed directly to the injury of which she complains, and that the verdict should, therefore, be for the defendant.. This prayer, of course, presupposed the existence of primary negligence on the part of the city in respect to the condition of the street crossing at the point where the plaintiff was-injured.

It was estimated by the witnesses that the hole between the flagstones was six to eight inches deep-, about six inches wide and from six to twelve inches long. It had been there for a period of four or five months before the accident.. Apparently it had resulted from the wear of wagon wheel's in the space between the two stones. The accident occurred in the daytime, and the theory of the city’s prayer was, that the defect in the street was obvious to anyone using due care, and that because of her failure to avoid it the plaintiff should be judicially declared to have been guilty of contributory negligence. ¹⁶ It was testified by the plaintiff that when she came to the street crossing she took up. her ll-months-old baby in her arms to help it over to the other side, and that in passing over she did not see the hole between the stones, as she was looking toward the opposite gutter and curb, beyond which the child was to be carried.

She stated that if she had been looking for defects in the street, she might have seen the hole into which she stepped, but that she supposed the crossing was all right, and she was going over it as carefully as she could under the circumstances. Upon this evidence the Court below was clearly right in declining to hold the plaintiff guilty of contributory negligence as a matter of law. The question as to whether she exercised ordinary care to avoid the accident was properly submitted to the jury as an issue of fact, in a prayer granted at the defendant’s request; but it would be pressing the doctrine of contributory negligence very far to hold that a case like the present should be withdrawn from the jury on that ground. It-was entirely natural that the plaintiff should have carried her child over the crossing, and it is easy to understand how the hole, as located, could escape her attention while she was thus engaged.

The fact that she failed to notice the defect in the crossing, and assumed it to be safe, as she passed over it with her child in her arms, is certainly not such a conclusive indication of negligence as to prevent the submission of the question to the jury. Her conduct was not so manifestly reckless as to “leave no opportunity for difference of opinion as to its imprudence in the minds of ordinarily prudent men.” It would have to deserve such a characterization before her right to have the jury pass upon the issue could be denied. B. & O. R. R. Co. v. Wiley, 72 Md. 40 ; McCarthy v. Clark, 115 Md. 464 ; Commrs. of Delmar v. Venables, 125 Md. 478 . In the case of Knight v. Baltimore, 97 Md. 647 , cited by the appellant, the driver of a wagon was thrown from his seat and injured when one of the wheels ran into a hole in the middle of .the street.

It was held that his own negligence contributed to his injury because he could readily