Mayor of Baltimore v. Poe

Bond, C. J., delivered the opinion of the Court. The appellee recovered a judgment against the appellants for damages from injuries sustained on August 30th, 1929, as a result of alleged negligence of the appellants, causing him to ride his motorcycle into a hole in the street bed adjacent to tracks of the railways company. The place of the accident was stated to be at the crossing of Fort Avenue and Light Street in Baltimore, and the hole was described as twenty inches long, eight inches wide, and eight inches deep. ³³⁶ The municipality was held liable because of its general responsibility for the condition of the streets of the city, and the railways company was held because of its statutory liability to keep in repair the portions of the street beds immediately adjacent to its tracks. Baltimore City Code, 1927, art. 39, sec. 38.

It is contended by these defendants on their appeal that there was error in the trial proceedings in a refusal of the court to direct a verdict in their favor because of‘lack of legally sufficient evidence of any negligence on their part, and because of the establishment of contributory negligence on the plaintiff’s part, and error in a refusal to grant instructions to the jury pointing out a state of facts which, if found by them, would conclusively establish contributory negligence. The existence of legally sufficient proof of negligence of the defendants is disputed, first, on the ground that there was no evidence at all of the essential fact that the street at the place designated was a public highway, so that the duties mentioned could be imposed on the defendants. This question of the public character of the streets, raised by the City on appeal, appears not to have been raised at the trial, the case having been clearly tried on the assumption that the streets were public highways, and that the defendants would be under the obligations to- repair at the place mentioned if repairs were needed. The evidence does show the ordinary public use of the street by traffic, the presence of traffic lights and a traffic policeman, and the existence of lines of dwellings abutting on Light Street.

It would be unfair now, and almost absurd, to disregard the assumption on which the trial proceeded, and return the case for a retrial in order to have explicit testimony given to the same effect. We need not discuss the possible bearing of common knowledge of the age and character of the streets. • Legal sufficiency of the evidence to prove negligence of the defendants was disputed on the further ground that it did not afford proof that the hole had been brought to their notice, or that it had been there during such time that notice might be presumed from it, so that in the exercise of ordinary ³³⁷ care they would have averted the accident by repairs. Wash., B. & A. R. Co. v. Cross, 142 Md. 500, 509 , 121 A. 374 . The plaintiff himself, and a witness called by him, placed the hole at somewhat" different spots in the street bed, the plaintiff placing it in the crossing, on the north side, and the witness placing it a little further north, at or above the north building line of Fort Avenue.

It seems, however, that both were attempting to place the same hole, and that the recollection of both placed it somewhere about the crossing. And that hole, the plaintiff’s testimony was, appeared to have been worn by traffic and had been in the street bed all summer, which would seem to mean two or three months. If the jury believed that testimony they might well, we think, conclude that such a hole, at such a busy crossing, would have come to the notice of the defendants if they had used due care to perform their duties relative to the upkeep of the surface of the streets. Wash., B. & A. R. Co. v. Cross, supra.

We do not find any error in refusal to direct a verdict because of lack of legally sufficient evidence of negligence on the part of the defendants. The objection that contributory negligence of the plaintiff himself was established, and that a verdict for the defendants should have been directed because of that fact, is the chief ground of contention. The hole was within the view of the plaintiff for a short time before he rode into it, and this court held in another case that when a similar dangerous condition was within the view* of a driver, he was guilty of contributory negligence in driving into it, and could not recover from the city. Knight v. Baltimore, 97 Md. 647 , 55 A. 388 .

Because of the visibility of the hole in this case, should a verdict have been directed, as prayed, against the plaintiff? He was riding north on Light Street, and was stopped at the crossing of Fort Avenue by the traffic light. He says he stood behind an automobile ahead of him as he waited to cross. The change of lights, he says, came as a street car was turning from Fort Avenue to go north, as the plaintiff intended to go, and for part of the way across his vision of the bed of the street over which he was to ride was obstructed by ³³⁸ the