Phelps Ex Rel. Phelps v. Board of County Commissioners

Ureter, J., delivered the opinion of the Court. By the declaration in this case it is charged that th'e Postal Telegraph and Cable Company, one of the defendants, with the permission of the County Commissioners of Howard County, the other defendant, and contrary to the duty of the defendants to keep the public roads of the county in a safe condition for public travel, erected a telegraph pole in a dangerous position in a designated public road of the county by ¹⁷⁷ placing tie pole in tbe side of tbe highway and so close to the traveled portion thereof that the part of a hay carriage, known as the lazy board, which extends out from the center of the carriage about two feet beyond its “tread,” would collide with the pole while the wagon was in the traveled portion of the road. It is alleged that the thoroughfare was thus negligently suffered and caused to become unsafe, and that the plaintiff while engaged in his daily avocation as a teamster, was riding on the lazy board of his wagon at night and, while exercising due care and caution, and while the wagon was traveling on the highway, being drawn by five horses, and while the driver of the team was using due care and caution, the night being misty and extremely dark, the lazy board collided with the telegraph pole previously mentioned and the plaintiff’s leg was caught between the pole and the lazy board and crushed so that it had to be amputated' at the knee, whereby ho was seriously and permanently injured. A demurrer to this declaration was filed and sustained in the Court of Common Pleas of Baltimore City to which the case had been removed from the Circuit Court for Howard County where the suit originated.

This appeal has been taken from a judgment upon tbe demurrer in favor of the defendants. The first objection-urged against the declaration is that it is defective in not stating with sufficient particularity the negligence with which the defendants are sought to he charged. It is argued that a telegraph pole located as described is not necessarily and invariable dangerous to public travel, and it is insisted that the declaration should have contained averments showing in what way and on account of what peculiar conditions the danger existed. The rule is well established that the general characterization of an act or omission as negligent or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability.

In Anne Arundel County v. Carr, 111 Md. 148 , tbe averment was that the defendant negligently allowed a bridge on one of the public roads of the county ¹⁷⁸ i to be out of repair and unsafe for use, and that in conse.quence the plantiff’s horse broke through the bridge and the plaintiff was injured'. The deelaration was held to be de-murrable because it did, “not specifically state the negligence 'complained, of, that is to say, in what respect the ¡bridge was out' of repair or unsafe.” As the Court observed: “It may have been out of repair and unsafe by reason of .faulty construction, broken or decayed timbers or planks, or .other conditions, and the defendant was entitled to know the: particular negligence for which the plaintiff sought to hold it responsible.” A reasonable degree of certainty is required in such allegation in order that the defendant nxayi be fully apprised of the nature of the charge against him and may be thus enabled to prepare for his defence. Poe's Pl. and Prac., Vol. 1, sec. 562; Gent v. Cole, 38 Md. 110 ; Jeter v. Schwind Quarry Co., 97 Md. 699 . In this case it is alleged, and the demurrer admits, that the telegraph pole with which the plaintiff collided was negligently placed at a point on the public road where it was •dangerous to public travel.

The charge is not- an indefinite .one' as to the existence of air unsafe condition. There is a .-distinct allegation that a designated object was negligently placed in a described position on a specified highway, and •¡that being so located it was in fact a source of danger by ..reason' of its close proximity to the traveled portion of the •road. Such an averment can leave the defendants in no possible doubt as to the nature of the charge with which they are 'confronted. They are fairly and fully informed that the issue they are. to meet is whether the pole mentioned in the declaration is in such a position on the highway as to unduly jeopardize the safety of travelers by exposing them unnecessarily to the risk of collision. •, Hnder our statute a declaration can not be required to ¡contain more than “a plain statement of the, facts necessary to constitute a ground of action.” Code, Art. 75, sec. 3.

Where -an unsafe, condition .may be due to one of several causes it ■js, of course, necessary that the specific cause intended to be ¹⁷⁹ relied upon should be stated; but where the allegations clearly indicate the exact danger to which the plain till attributes his injury, there can be no reasonable ground upon which to demand further particularity. The Code provides, for the class of cases to which it is appropriate, the