Mayor of Baltimore v. State Ex Rel. Cirtout

⁴⁴³ PattisoN, J., delivered the opinion, of the Court. This is an appeal from a judgment against the Mayor and City Council of Baltimore in a suit brought under Lord Campbell's Act to recover for' the death of John Oirtout, caused, as alleged, by the negligence of the Mayor and City Council of Baltimore. The equitable plaintiffs are -his infant children. The suit was brought not only against the Mayor and City Council of Baltimore, but also against John Kirschner, The Safe Deposit and Trust Company, trustee of the Christian Wilkens estate, and William 'Wilkens Company.

The suit as to the Safe Deposit and Trust Company, trustee, was dismissed, and a verdict in favor of John Kirschner and William Wilkens Company was rendered by the jury. In the trial of the case twenty-eight exceptions were taken to the rulings of the court. Of these twenty-six relate to the evidence, one to the prayers and special exceptions thereto, and one to the action of the court in overruling an objection to a statement made by Abram 0. Joseph, of counsel for plaintiffs, in his argument to the jury.

The plaintiffs offered three prayers. The first and second were refused. The third, a prayer upon the measure of daim ages, was granted. The city' asked for twenty instructions.

Of these, the eighth, ninth, tenth, eleventh, fifteenth, nineteenth and twentieth were granted; the others were refused. At the time of his death John Oirtout was employed in the clothing factory of Henry Soimoborn & fíon, Incorporated, and lived at 1852 McHenry Street, in the western section of the City of Baltimore, with his three infant, children, Anna, Wanda and John, aged sixteen, ten and nine years, respectively. On the 5th day of December, 1921, Charles E. Angel, “‘manager . of supplies for the school board” of Baltimore City, with his friend, James Dixon, engaged in what he termed the “motor business, repairing motors,” went to the home of John Oirtout, who, it seems, was a friend of both ⁴⁴⁴ Angel and Dixon. They arrived there about eig'ht-tliixty or nine o’clock in the evening'.

In going to Cirtont’s home they rode upon their motorcycles, each having attached thereto his side car. When they reached there Cirtout was not at home. They, however, awaited his return, which was abou-t one-half hour after their arrival. In the- course of the evening Cirtout asked Angel to take him out for a ride, and though the night was disagreeable, it being foggy and misty, they started out upon their ride, Angel upon his motorcycle and Cirtout in the side car attached thereto.

They went west four blocks on McHenry Street to Bentalou Street, which crosses McHenry Street at or near its western terminus. McHenry Street is an improved street, curb and guttered, and paved with sheet asphalt to and beyond the west side of Bentalou Street the distance of thirteen feet, the width of the sidewalk of said last-named street. From this point the surface of the ground in what would be the bed of McHenry Street if ■ extended further westward, is rough and uneven for a- distance of about twenty-five feet to an abrupt drop' or declivity therein of twelve or more feet. The west curb of Bentalou Street, when it reaches Mc-Henry Street, both from the north, and the south, turns to the west, forming the north and south curbs of McHenry Street west of Bentalou 'Street for the distance to- which Mc-Henry Street is paved.

To the west of Bentalou Street, beyond tbe point to which McHenry Street is paved, and on the north side of and facing what would be McHenry Street, if extended westward, are two dwelling houses. McHenry Street and Bentalou Street at their intersection are lighted by two lamps, one on the northeast corner and the other on the southwest corner of said streets. When the motorcycle ridden by Angel reached Bentalou Street, traveling on McHenry Street, it continued its course auross Bentalou Street and upon and over the paved portion of McHenry Street, west of Bentalou Street, and upon and over the rough and uneven ground to the west -thereof to and ⁴⁴⁵ over the declivity mentioned, carrying with it the side car in which Cirtout was riding, which resulted in his death. Angel in his testimony stated that “after we left the Cirtout house I drove west on McHenry Street, thinking the street kept on going.

Being night — 'being misty and night time — I kept on past Bentalon Street, thinking the street continued out there, seeing two houses on the side and lamp posts — my spotlight showed nothing, and I knew something was wrong, but my front wheel was over the edge, and it was all over that quick.” The declivity over which the motorcycle and car went was, he thought, about twenty-five feet from the west curb of Ben-talou Street. He stated the rate of speed at which he was riding was not over twelve or fifteen miles an hour; that he bad upon his machine all the lights that he was by law required to display. In fact, he had, as he said, a spotlight which he was not required to have. This light shines on the surface over which the motorcycle passes, and when the light showed nothing ahead of him he put his foot on the brake and attempted to stop the machine, hut he could not. stop it.

He further testified that there was no warning or signal of any kind indicating danger or any obstruction to prevent his going over the declivity. Upon cross-examination lie testified that when he passed from the asphalt pavement to the rough surface beyond, which was abont twenty-five feet from the declivity, “he slowed down,” and when his spotlight showed nothing he attempted to stop. He also testified that he thought the spotlight would show the surface of the road in front of him for a distance of sixteen feet, and when going at the rate of twelve or fifteen miles he could stop the motorcycle in three or four feet, and when asked why he could not have stopped it before going over tbe “bank,” he said the ground was wet and his tires were “very smooth, the same as glass.” Did you tiv to stop? “Certainly.” He was then asked, if he could srop his motorcycle in four or five feet, why he did not stop ? He answered, “I could not tell you that.

The motor would ⁴⁴⁶ not stop, I suppose.” He also stated that he saw, as he proceeded across Bentalou Street, two houses on his right, beyond that street facing McHenry Street, if extended. He further said that prior to the accident he knew nothing of the place at which the accident occurred or its surroundings; that while his duties called him to that section of the city, he was never, so far as he could recall, in that immediate vicinity. . Lawrence J. MeOleary testified that he for two years prior to the accident had lived in the house on the northwest corner of Bentalou Street and McHenry Street, one of the two houses west of B'entalou Street, and that he there lived at the time of the accident. He said the house in which he lived and the one adjoining, on the west, faced south on McHenry Street, with a well-defined sidewalk made of boards, not curbed, extending along the entire distance in front of them; that at the western end of the sidewalk, at or near the declivity mentioned, was a fence from the westernmost limit of the second house across the sidewalk only; from that point there was no fence or obstruction of any kind between Ben-talou Street and the declivity upon what would be the bed of McHenry Street if extended.

The witness also testified that about ten-thirty o’clock on the night of the accident he went out of his house to dose the shutters and heard a noise down the embankment or declivity nearby, and upon investigation found Angel and Cirtout there, the former, at that time, lying; in the side oar and the latter upon the ground. He did not hear the motorcycle and car pass the house, nor did he hear the noise made by them in going; over the declivity, and he did not know how long they had been where ha found them. He then called his brother and the latter had the patrol wag'on to come for' them, and both Angel .and Cirtout were taken to the hospital. As we have said, the only instruction granted at the request of the plaintiffs, was their prayer upon the measure of damages, and to this the defendant, the Mayor and City ⁴⁴⁷ Council of Baltimore, filed special exceptions, because, as it was claimed, the prayer assumed (1) that Cirtout was. negligently killed and (2) that such negligence was the negligence of the Mayor and City Council of Baltimore.

The city had payed the bed of McHenry Street to a point thirteen feet beyond the west curb of Bentalou 'Street, and had curbed the north and south sides of McHenry Street for a like distance beyond Bentalou Street. The point, to which the city had paved and curbed McHenry Street west of Ben-talou Street was at most not more than twenty-five feet from the dangerous drop or declivity where the accident occurred, and within that distance there was no. barrier to prevent one traveling west on McHenry Street from going over the declivity immediately ahead of him; nor was there any sign or signal, warning him of danger at that place. In .addition to the facts, above stated, a traveler going west on McHenry Street would not only see that, the paved portions of that street extended beyond Bentalou Street and that the west curb of the last named street, as it reached McHenry Street, both from the north, and the south, turned west, forming the north and south curbs of McHenry Street for the distance it extended, but there was visible to him on his right the two houses west of Bentalou Street facing on McHenry Street with the boarded sidewalks in front of them extending to or near the line of the declivity, from which he might be led to believe, in the absence of any thing to indicate that the street stopped at the end of the pavement, that. McHenry Street continued in front of and beyond said houses, though not paved.

It is said in 13 R. C. L., p. 421: “It is well settled that it is the duty of a municipal or quasi municipal corporation to erect railings or barriers along the highway and places where they are necessary to make the same safe and convenient for travelers in the use of ordinary care, and that it is liable for injuries, to travelers, resulting from a breach of its duty in this regard. This is. true though the danger arises from structures or excavations outside of the highway, ⁴⁴⁸ and 011 the lands of adjoining owners, when they are in the general direction of travel upon the highway. Whether or not a railing or barrier is necessary in a given case depends largely upon the circumstances of the particular locality in reference to> which the question aris.es. Among the facts material to be considered are the character and .amount of travel, the character of the road itself, * * * the character and extent of the slope or descent of the bank, the direction of the road at the place, * * * whether the danger is concealed or obvious, and the extent of the injury likely to occur therefrom.

As w,as said 'in Mineral City v. Gilbow, 81 Ohio St. 263 , “In determining, whether it is necessary in a particular case that a barrier should be erected in order to make the highway safe for travelers thereon, the true test is not the distance from the highway of the dangerous object or place, whether it be much or little; but whether a traveler in passing along, the highway and exercising ordinary care would be subjected to such imminent danger that it would require a barrier to make the highway safe. Kelley v. City of Columbus, 41 Ohio St. 263 , 268; Alger v. City of Lowell, 3 Allen (Mass.), 402, 405; City of Norwich v. Breed, 30 Conn. 544, 545 .” And this Court in Balto. & O. R. R. Co. v. Boteler, 38 Md. 568 , speaking through Chief Judge Bartol, said, quoting approvingly from Alger v. Lowell, supra: “The true test is not whether the dangerous place is