President of the Baltimore & Fredericktown Turnpike Co. v. Hebb

Bryan, J., delivered the opinion of the Court. John W. Hebb brought a suit against the Frederick-town Turnpike Company to recover damages for injuries alleged to have been sustained by reason of the dangerous, condition of the turnpike. The plaintiff testified in his own behalf. He stated that he was travel-ling on the road on the night of the nineteenth of March; that about nine o’clock he reached Steep-Hill; that it is a very steep and dangerous place; that on the southern side of the hill there is a gully three or four feet deep at the crest of the hill, which gradually becomes deeper until at or near the bottom of the hill, it is twenty-five feet deep; that on the night in question there was on the crest and extending west down the hill on the same side as the gully a long pile of stones lying in the bed of the road near the southern side but on the macadamized portion; that the macadamized portion at that place was very narrow, not over thirteen feet wide; that the northern side of the road was not so steep, but he could not drive down that side with safety; that there was no fence along the pike where the accident occurred; that the night was very dark; that the stone piles were four or five in number, about two and a half or three feet high; that the stones were not broken, some were very large boulders; that there was a perch and a half 'of stone in each pile; that the stones had been there six or eight months; that the horse was young, but had been driven often before, and that he was reasonably safe; he was driving down the hill in a walk; that the horse got among the piles of stone, ran over three of them; that each pile was about six feet square; that when the horse ran into one pile he became frightened and ran; that the buggy was upset and broken, and the horse injured and he, himself thrown four and a half feet down an embankment and severely injured; and that there was no light on the piles of stone.

There was other evidence tending to show that on the northern 'side of the turnpike the bank goes down very sharply and that it could not be used as a road; and that the stones had been placed on the road in the September before the accident, ¹³⁵ and that the piles were about twelve feet long in all, and a foot or eighteen inches high. The evidence in behalf of the defendant tended to show that the road at the place of the accident was from twenty to twenty-six and a half feet wide; that the stones encroached on the stone road two or three feet; that a man could drive on the northern side of the road with safety, and that the night was dark, but not very dark. Two exceptions were taken at the trial. In the first exception the plaintiff asked a witness whether in former years there had been railings at the place where the accident occurred.

The defendant excepted to this question, but the Court permitted the question to be asked and answered. The answer of the witness is not stated in this exception, but it appears at the beginning of the following one. From the evidence which had been given before this question was asked, it was competent for the jury to find that the turnpike was unsafe for travellers, and that railings by the side of the gully were necessary for their safety, especially at night. If they found that railings were necessary, it was proper that they should be informed whether there had ever been any at that place.

If none had ever been there, the neglect of the defendant would be shown to be very palpable and long continued. But if formerly railings had been there and had been removed, it was admissible for the defendant to show, if it could, that there were sufficient causes for their removal. If they were necessary (and this was a question for the jury to