Pennsylvania Steel Co. v. Wilkinson

Burke, J. delivered the opinion of the Court. On the 24th day of May, 1905, the Pennsylvania Steel Company, a body corporate, by the consent of the Mayor and City Council of Havre de Grace, a municipal corporation, was engaged in the construction of certain trestle work for the purpose of erecting a bridge or overhead crossing to be used as an approach to the new railroad bridge over the Susquehanna River. This bridge was to be built over Union avenue, a public street or highway of the city of Havre de Grace. On the day mentioned a number of workmen of the Pennsylvania Steel Company, in charge of William H. Dickel as foreman, were engaged in setting up the false work on Union avenue preparatory to the construction of the bridge across that highway.

In the morning of that day the plaintiff, who lived about six miles from Havre de Grace, had driven into that city accompanied by a colored woman. The plaintiff was a skillful driver, and was driving a safe horse, which was attached to a light no top wagon, known as abuckboard. In going into town, the plaintiff drove past the place on Union avenue where the men were working in putting up the false work spoken of in the evidence. At a later hour in the day, when she was in the act of passing this work on her return home her horse became frightened and unmanageable, and ran away.

Her wagon collided with a cart, and she was thrown out and injured. The nature and extent of her injuries were testified to by the physician who attended her; but it is with the cause, and not with the extent of the injuries, that we are concerned on this appeal. There is conflict of testimony as to the extent of the construction work at Union avenue at the time of the accident. On the part of the plaintiff it was testified that there were timbers erected on both sides of the street and above the passage way left opened for driving; on the part of the defend ⁵⁷⁶ ants it was testified that there was one upright brace only in place on the right or east side of the drive way as the plaintiff passed out of town, and that there was no structure overhead, or nothing on the west side of the street, except a piece of timber to serve as a brace for another trestle work to be erected on that side.

But this conflict in the testimony has no bearing upon the legal questions raised on the record. The plaintiff brought suit in the Circuit Court for Harford county against the Pennsylvania Steel Company and the Mayor and City Council of Havre de Grace to recover damages for the injuries she sustained. The case was removed to the Superior Court of Baltimore City where it was tried. The trial resulted in a verdict and judment against both defendants, and they have prosecuted these appeals: The declaration contains three counts.

The first count charged that the Mayor and City Council of Havre de Grace had the charge and control of the streets of that city, and that it and the other defendant, the Pennsylvania Steel Company, negligently obstructed one of the streets of the city, being the street called in the testimony Union avenue, by placing and stretching a large rope, called a hawser, across and over said street from the east to the west side thereof; and in this count the injury she sustained is alleged'to have been caused by this rope hanging so low that when the plaintiff was driving along the street, in the exercise of due care ' “the horse that she was then driving was thereby frightened and made to run away.” The second count charged that the defendants negligently obstructed the street by means of a large rope stretched from a high trestle work, or derrick on the east side of the street, and that the trestle work or hawser and derrick were placed there negligently by the defendants. It is alleged in this couut that the injury was caused by reason of said trestle work, derrick and hawser being placed in, near, and across and over the street. The third count, which is the important one in the declaration as the case comes before us, alleged that the defendants so negligently managed, controlled and worked said rope or ⁵⁷⁷ haivser when the plaintiff was driving her horse and wagon along and over the street and under the rope and hawser, and when in the exercise of due care, as to cause the horse of the plaintiff then being driven by her to become frightened, and which did frighten said horse, causing said horse to become unmanageable, when said horse ran away, and ran into another wagon or team, upsetting the wagon in which the plaintiff was riding, and throwing her violently to the ground whereby she was seriously and permanently injured. At the conclusion of the testimony offered by each side, the plaintiff submitted four prayers, and the defendant submitted eight prayers for instructions to the jury.

The Court granted the plaintiff’s third and fourth prayers; but refused her first and second. The Court granted the third, fourth, five and a half, sixth, and seventh prayers of the defendants; but refused their first, second, and fifth. The defendants filed special exceptions to the granting of the plaintiff’s first, second, and third prayers. The Court overruled each of the special exceptions.

To the action of the Court in granting the plaintiff’s third and fourth prayers, and in refusing each of the defendants’ special exceptions to the plaintiff’s first, second, and third prayers, and in refusing the defendant’s first, second, and fifth prayers the defendants excepted. The ruling of the Court on these prayers and on the special exceptions constitute the second bill of exceptions. The record contains one other bill of exceptions taken by the defendants to the admission of certain testimony; but this we understand by the appellant’s brief has been abandoned, as it is therein stated that this Court “would not be asked to review any ruling for error in which it might only reverse the judgment with a new trial.” The granted fourth prayer of the plaintiff is the usual one on the measure of damages, and was not objected to at the hearing; and we think it is not open to criticism. It, therefore, appears that the questions we are to deal with arise upon the action of the Court in granting the plaintiff’s third prayer, and in overruling the special exceptions thereto, and in refusing the defendant’s first, second and fifth prayers, ⁵⁷⁸ The plaintiff’s third prayer was drawn under the third count of the declaration It told the jury that if they found from the evidence that on the day of the accident the plaintiff, while in the exercise of due care, was driving a horse and buggy on and over one of the streets of Havre de Grace, one of the defendants, and that a portion of the bed of said street was then occupied by trestle works put up and built by the Pennsylvania Steel Company, the other defendant, and that it was then building and preparing to build additional and other trestle work in the bed of said street, and for that purpose had a rope or ropes stretched across the part of said street left open for travel, which was about twenty feet wide between the trestle work; and that at the time the plaintiff was approaching said trestle work on said street and under the ropes stretched across the street, the rope was not moving, and that when the plaintiff’s horse got to the point on the street under or nearly under the rope, the rope was moved, and was made to swing to and fro because of the negligence of the defendant, the Pennsylvania Steel Company, in the mañagement of said work and the handling and moving of the rope across the part of the street left open for travel, over which the plaintiff was driving, causing the horse of the plaintiff to become frightened and unmanageable, and thereby made to run away and collide with a cart as mentioned in the evidence, throwing the plaintiff out on the ground and injuring her, and if they should further find that the plaintiff’s horse would not have become frightened and run away, but for the swinging to and fro of said rope at the time it was passing under it; and further find that the defendant, the Mayor and City Council of Havre de Grace, one of the defendants, gave permission and authority to the Steel Company to build said trestle work in the bed of the street, then the plaintiff was entitled to recover.

The defendant’s first prayer asked the Court to direct the jury to find their verdict for the defendants, because there was no legally sufficient evidence in the case to entitle the plaintiff to recover under the pleadings and evidence; their second prayer asked the Court to direct a verdict for the defendants, ⁵⁷⁹ because there was no legally sufficient evidence to show that the accident complained of was caused solely by any wrongful acts, neglect or defaults of the defendants, their agents, servants, or employees, or either of them, without any negligence on the part of the plaintiff directly contributing thereto; and their fifth prayer asked the Court to tell the jury that if the plaintiff’s horse was scared at the movement ofa rope, stretched by the servants, agents or employees of the defendant corporation, in the course of their work and for the purposes therefor, across the highway on which the plaintiff was driving; and if the jury are unable to determine from the evidence which has been produced before them, beyond a mere conjecture or surmise, whether the rope was moved, if the jury find it was moved, by one of the agents, servants or employees of the Steel Company, or whether it was moved by a spectator or person in no way connected with the company, then their verdict should be for the defendant, the Pennsylvania Steel Company upon the pleadings and evidence. It becomes necessary in order to determine the legal questions. which arise under these