Mayor of Baltimore v. Thompson

⁴⁶³ Offutt, J., delivered the opinion of the Court. Eager Street, running east and west, in Baltimore City, is carried over the tracks of the Pennsylvania Railroad Company by a steel and concrete bridge supported in part by three iron girders incased in concrete. A few feet west of the bridge Eager Street intersects the Falls-way, a north and south street running parallel to the railway tracks. A short distance east of the bridge it intersects Burén Street, and three or four blocks east of the bridge it intersects Greenmount Avenue.

One of the three girders is located on either side of the bridge at the edge of that part of the street used for vehicular traffic, and the other in the center of the street, dividing it on the bridge into two driveways, one for east, the other for west bound traffic. The center girder is about seventy-six feet long, about five feet high, about twenty inches wide, and the concrete incasing it is grayish black in color. Each driveway is about eighteen feet wide, and paved with sheet asphalt. At the east end of the girders on each side of the bridge are posts supporting lamps containing electric bulbs of 250-candle power each, between fourteen and fifteen feet above the street level.

There is also a 400-candle power street light at the southeast comer of the intersection of Eager Street and the Fallsway, and another at the northwest corner of that intersection. At the southeast corner of Burén and Eager Streets, about eighty feet east of the bridge, is a 50-candle power street light. At about 8 or 8:30 o’clock in the evening of January 21st, 1935, Harry C. Thompson, accompanied by Hedwig Thompson, his wife, the appellee, was driving his automobile west on Eager Street, and approaching the bridige from the direction of Greenmount Avenue. The night was foggy, the visibility was poor, and as he attempted to cross the bridge his automobile collided with the east end of the center girder.

As a result of the collision, he was knocked unconscious and Mrs. Thompson suffered severe and painful injuries. Subsequently Mrs. Thompson brought this action against the Mayor and City Coun ⁴⁶⁴ cil of Baltimore City and the Pennsylvania Railroad Company, to recover compensation for those injuries, on the theory that the defendants were negligent in failing to take reasonable precaution to warn the traveling public of the presence of the center girder under the conditions existing at the time of the accident. The case was tried before the court and a jury, and at the close of the plaintiff’s case the court granted a prayer for a directed verdict in favor of the railroad company, and the plaintiff thereupon took a judgment of non pros, as to it. The case then proceeded and, at the close of the whole case, the jury returned a verdict for the plaintiff.

From the judgment on that verdict, this appeal was taken. Although not so numbered, there are in the record ten exceptions, of which eight relate to rulings on questions of evidence, and two to the court’s rulings on the prayers. The exceptions to the evidence were not argued in this court and may be disregarded. Court of Appeals Rules No. 39, sec. 4.

The appellant offered six prayers, marked, A, B, C, D, E, and F, which in one form or another were demurrers to the evidence. Its A and F prayers present what is the real question in the case, whether there is in it any evidence legally sufficient to show that the appellant was guilty of primary negligence in failing to take adequate measures to warn the traveling public of the location of the center girder under the conditions existing at the time of the accident. In addition to the facts stated, which are not disputed, there was in the case evidence tending to show that at the time of the accident the weather was foggy, cold, damp, and chilly, but not freezing nor raining, and that the visibility because of the fog was very poor at and near the bridge. Harry C. Thompson, testifying for the plaintiff, said that there was no light on the girder Itself and that he saw no “marking” on it, that Eager Street slopes slightly downward from Greenmount Avenue to the bridge, that he was not familiar with Eager Street, ⁴⁶⁵ and in fact he “thought he was. on Chase Street,” over which he had driven a number of times, that there was no center girder on Chase Street, that in driving the car, previous to the accident, he had on his dimmers.

He did not have his bright lights on because in driving on a foggy night he could see better with them than with his bright lights, that he did not know there was a bridge there. He further said his “headlights on the night of the accident, going ten miles an hour, did not show over ten or fifteen feet in front of his car. He doesn’t believe he could not see a person crossing the street fifteen feet in front of him on the night in question at the place of the accident.” He then gave this testimony: “What were the facts that night? Were your headlights sufficient to enable you to see fifteen feet in front of you before you got to that abutment?

(The Witness) Yes, sir. (The Court) Well, why didn’t you see it then? (The Witness) On account of the fact that the abutment was the same color as the general atmospheric conditions on that night, so that you couldn’t discern that you were approaching it or approaching any obstacle until you were immediately upon it. There was a dense fog that night.

Almost instantaneously, or instantaneously, with his calling out to Mrs. Thompson, ‘look out,’ he hit the abutment. Mrs. Thompson said nothing to him about the abutment. He was right on top of it at that time. When he said ‘look out’ he had seen it.

He supposed he was about a foot or two away from it when he said ‘look out.’ The witness had proceeded west on Eager Street from Broadway to Greenmount Avenue, and he had difficulty in seeing as he drove along. As he came west on Eager Street he was driving a little to the right of the center of the street. There were no markings in the center of the street, but he believed he was driving close to the middle of the street. * * * When he started down the slight incline on Eager Street west of Green-mount Avenue, he saw the boulevard lights on the Falls-way as well as on Eager Street. He knew it was about three or four blocks from Greenmount Avenue to the ⁴⁶⁶ Fallsway.

When, he saw the lights, he thought he was about three blocks away. It was still foggy but he saw the lights. The fog got heavier as he approached them. “Q. How fast were you going when you first saw those lights as you started down that incline, as you call it? A. Approximately ten miles an hour.

Q. As the fog got heavier, as you started toward that string of lights, did you slow up any more than you had been? * * * I think I proceeded about the same speed. As the fog got heavier and' heavier he could still see light. He knew that he was-a little to the right of the center of Eager Street while the left wheel was approximately at the center of the road. He was in the same position when he crossed Burén Street.

When he reached Burén Street that was the first time he did not see the lights. He did not slow down any more. ‘Q. In other words, you maintained the same speed, although the fog got heavier and the lights disappeared, you could not see the lights, I will put it that way? A. I could see that there were lights on the side of the street.’ ” He also said that he could see the red tail light of cars parked along the side of the street, and that he knew that the two lights at the end of the bridge were there. Mrs. Thompson said that, at the time of the collision, the headlights on the automobile were burning, that there were no markings, no black and white stripes on the end of the girder, that if there “was a contrast” she “imagined” when you “got on top of it you could have seen that there was something there to mark it,” that they were going very slowly, that she could see ten or fifteen feet if there was an object or a light, that she was looking ahead and Ito the side trying to see where they were going, but did not see the abutment until they struck it, that “if was- all the same color, all gray, and all the same color, the atmosphere and everything else was the same color.” It also appeared that the bridge was built by the Pennsylvania Railroad Company under the authority of certain ordinances of the Mayor and City Council of Baltimore, and it was also suggested that it was obliged ⁴⁶⁷ to maintain it and keep it in good order.

It was also shown without contradiction that the girder was necessary to support the bridge. From these facts, it is apparent that while the girder was not a nuisance and was a necessary part of the bridge, nevertheless it was an obstruction to the free flow of traffic along Eager Street, which, under the weather conditions existing at the time of the accident, might well be dangerous to automobile traffic over the bridge, that other than the lights on either side of the street the municipality had provided no light, marking, or other device to aid travelers on the highway to locate it under the weather conditions existing at that point at the time of the accident. So that the question is, Did the failure of the appellant ¡to furnish such a warning constitute evidence of primary negligence ? It needs no authority to support the proposition that the municipality is under the duty of exercising reasonable care to keep its public highways safe for public travel, and it is equally well settled that it is not an insurer of the safety of persons in the lawful use of such highways (Elliott on Roads and Streets; sec. 793), but is only liable for a failure to use reasonable care to SO' maintain them that travelers thereon in the exercise of reasonable care at night or in the day time may not be subjected to any dangers arising from defects in the construction, upkeep, or maintenance of such highways under reasonably foreseeable conditions’ of weather or traffic.

Id.; 29 C. J. 680. It may therefore be liable for injuries caused by an obstruction in a public highway of which it had sufficient notice, even though the obstruction is authorized by proper municipal and legislative authority, where it is reasonably foreseeable that it will endanger persons using the highway While in the exercise of reasonable care, unless it takes the precaution of warning such persons of the danger by some reasonably adequate means. Corcoran v. City of New York, 188 N. Y. 131 , 80 N. E. 660 ; McKim v. City of Philadelphia, 217 Pa. 243 , 66 A. 340 ; Elliott on Roads and Streets, sec. 792. Such, a liability does not arise from any failure of a ⁴⁶⁸ general duty to light the highways, but from, a failure to exercise reasonable care to guard the traveling public against some special condition, of which the municipality had sufficient notice, which an ordinarily prudent person might reasonably anticipate would endanger travelers on the highway while in the exercise of reasonable care. 29 C. J. 688.

The basis of that liability is the duty resting upon the municipality of keeping the highways safe for travel over them. That duty is not discharged if the highways are permitted to be or remain in such a condition that persons in the lawful use of them may be imperiled by unknown dangers which they could not by the exercise of reasonable and ordinary care anticipate or avoid. The following cases illustrate the application of those principles: In Baltimore City v. Beck, 96 Md. 188 , 53 A. 976, 978 , the plaintiff, while driving along Fulton Street in Baltimore, drove into a pile of bricks lying in the roadway and was injured. There was no light burning to show the obstruction.

In considering the duty of the municipality, the court in that case said: “There can be no question, then, that, as the municipal authorities of Baltimore had the power and authority to regulate and to remove obstructions from its streets, and to cause the streets to be lighted at the expense of the city, it was its plain duty to have kept the avenue lighted, and in a safe condition for public travel, on the night of the accident in question. “The law is well settled that, if it negligently fails so to do, and persons acting without negligence on their part are injured while passing along its highways, the city is liable in damages for the injuries caused by the neglect, and the person so injured can recover against the municipality therefor. Mayor and City Council of Baltimore v. Marriott, 9 Md. 160 ; Mayor and City Council of Baltimore v. Pendleton, 15 Md. 12 .” In Corcoran v. City of New York, 188 N. Y. 131 , 80 N. E. 660 , the plaintiff's intestate was riding at night in an automobile over Jerome Avenue, which abruptly ter ⁴⁶⁹ minated at the edge of a sheer declivity. At the end of the street there were a picket fence and a guard rail, but no light sufficient to clearly disclose the situation. The negligence charged was a failure to properly light and guard the street at the point of the declivity.

In dealing with that question, the court said: “But the streets of a city may be as freely used by those who ride in automobiles as by pedestrians or travelers, and, if this cul-de-sac was likely to be a dangerous place in the night time to any class of wayfarers who might be misled into thinking that it would be a continuation of the highway, it should have been so well lighted as to give fair warning that it was merely a cul-de-sac, or so well guarded as to prevent entrance to the point of danger. * * * We think that the question whether the city had provided sufficient light to enable a traveler at night to discern the guard rail and fence, and to be aware of the danger in time to avert accident, was one of fact.” The same court, without deciding whether that case should be followed, distinguished it in Gaines v. City of New York, 215 N. Y 533, 109 N. E. 594 , on the ground that, if the duty stressed in the former case existed, its breach in the Gaines case was not the proximate cause of the injury. In Barrett v. Southern Pacific Co., 207 Cal. 154 , 277 P. 481, 484 , a railroad was carried over a public highway by a bridge supported in part by a stone pier located in the center of the highway. The plaintiff, driving an automobile over the highway in a dense fog, collided with the pier and was injured. Government records established the fact that heavy fogs prevailed in that section at the time of the accident, and it also