President of the Baltimore & Reisterstown Turnpike Road v. State ex rel. Grimes

Robinson, J., delivered the opinion of the Court. This is an action under section 1 of Article 67, of the Code, in the name of the State, for the use of the widow and infant children of William A. Grimes, to recover damages for his death, alleged to have been caused by the dangerous and unsafe condition of the defendant’s road. ⁵⁷⁸ Grimes was a huckster hy trade, and at the time of the accident was driving a two horse huckster’s wagon on defendant’s road. Just ahead of him was a two horse-wagon driven hy the witness Essigh, and a little further on was a four horse wagon loaded with wood, driven by Leister. Essigh, coming up to Leister’s wagon, turned to the right, and passed it on a slow trot; Grimes, just behind, attempted also to pass Leister on the right, hut, as he got alongside of the wagon, Leister’s off-lead horse, apparently frightened, began to jump and rear, and thereupon the near horse of Grimes’ team began also to rear and jump, and, getting its leg across the tongue, forced the other horse and wagon down an embankment on the right-hand side of the road, upsetting the wagon, and injuring Grimes so badly that he died within a half hour afterwards.

It was a cool, frosty morning, and the ground was slightly frozen, and the rattling of Essigh’s wagon as it passed Leister, and the attempt on the part of Grimes to pass immediately afterward, no doubt frightened Leister’s lead horse, causing him to rear and jump, in consequence of which Grimes’ horse also became frightened, and getting its leg over the tongue, forced the wagon down the embankment. Now, though a great many instructions were asked at the trial below, — not less, we believe, than twenty-eight hy the defendant alone, — there are after all but two questions about which there can he any controversy, and these questions are 1st, Whether Grimes’ death was caused by the unsafe and dangerous condition of the defendant’s road, and but for which the accident would not have happened; and 2dly, Whether there was any negligence on the part of Grimes, directly contributing to the accident? For even though the defendant’s road may have been unsafe and dangerous at the particular point in question, yet if Grimes himself could, hy the ⁵⁷⁹ exercise of ordinary care, have avoided the accident, the equitable plaintiffs were not entitled to recover. Now, as to the first question.

The defendant corporation was a chartered Turnpike Company, with the right to demand toll of all persons travelling on its road. What then was its duty to the public ? That is no longer an open question. All agree that it was bound, not only to keep its road in safe repair, but also to see that it was so constructed and maintained as to make it safe for persons travelling on it.

Baltimore and Yorktovm Turnpike Road vs. Crowther, 63 Md., 558 ; Baltimore and Liberty Turnpike Co. vs. Cassell, 66 Md., 419 ; Baltimore and Harford Turnpike Co. vs. Bateman, 68 Md., 389 . Now the only evidence tending to show negligence or breach of duty on the part of the defendant in this respect, was the embankment on the right of the road, and in going over which Grimes’ wagon was upset, and he himself killed. This embankment was about one hundred and twenty yards long and about five feet high. There must and will be, as we all know, in the making of a turnpike road, differences between the surface level of the hard or macadamized road and the dirt road alongside of it; but when this difference is so great as to make an embankment steep and dangerous to travellers it is the duty of the company to protect such places by guards or railing of some kind, in order to avoid just such accidents as the one now before us.

Crowther’s Case, 63 Md., 558 . Horses ordinarily safe and well broken, will sometimes shy and start at strange or unusual objects along the road, and travellers ought not to be exposed to peril by dangerous embankments on the side of the road, and which, by proper guards, could be made ordinarily safe. In this case the embankment was, in the opinion of a number of witnesses, who were familiar with the road, steep and dangerous; so much so, they ⁵⁸⁰ say, as necessarily to upset a- wagon going over it. Other witnesses, it”is true, considered it safe for persons driving well broken horses.

But whether it was unsafe and dangerous, was a question for the jury, to be determined upon consideration of all the evidence'. So much then as to the first question. Now, then, as to the question of contributory negligence on the part of the deceased. ' All the witnesses agree that he was a careful, experienced driver, and a sober and industrious man. There is not a particle of evidence from which any negligence can be inferred in the attempt to pass Leister’s wagon.

He was driving very slowly with the reins in his hand. There was at least fifteen feet between the near or right wheel of Leister’s wagon and the' embankment; so he had fifteen feet in the clear to pass. He had just seen Essigh pass Leister on the right of the road, and there was nothing to warn him of any danger in attempting to go by on the same side of the road. The only evidence tending to show negligence on the part of Grimes, was the attempt, on the part of the defendant, to prove that his horses were not ordinarily safe and well broken.

The witness Morelock, from whom he had bought the horses, says he told Grimes they were good horses and safe, if properly handled, but would shy very quick, and required close watching, and had twice started to run away with him. Grimes had been driving the horses for Some time, and witnesses for the plaintiff testified that they were, in their opinion, safe and well broken. There was, to say the least, a conflict in the testimony bn this point. But, be that as it may, the question of contributory negligence on the part of Grimes was a question for the jury.

In the Court’s instruction the law in regard to negligence on the part of the defendant, and negligence on the part of Grimes was fairly put to the jury. The jury were instructed that it was the duty of the defendant to ⁵⁸¹ make and keep its road in such condition as to make it safe for persons travelling over it, and if the defendant negligently permitted part of its road to he unsafe and dangerous, and the deceased, while travelling over it, and using ordinary care and caution, was killed, and that his death was caused hy the unsafe and dangerous condition of the defendant’s road, and not hy any negligence on his part directly contributing to the accident, then the plaintiff was entitled to recover. The defendant has no reason certainly to complain of this instruction, which in fact embraces the whole law in regard to negligence. And then, in addition to this, the Court, at the request of the defendant, further instructed the jury, 1st. 'That the burden of proof was on the plaintiff to show that the injury complained of was caused by the defendant’s negligence, and that but for such negligence the injury would not have happened; and further, that unless the jury should find from the preponderance of