President of the Baltimore v. Crowther

Miller, J., delivered the opinion of the Court. In this cáse an action was brought by the appellee against the Turnpike Company to recover damages for injuries to his horse and buggy. The declaration avers in substance that the defendants suffered their road, in a certain part of it, to be so out of repair as to be unsafe for travel, by reason of leaving an abrupt and high bank between the centre and metalled part, and the remainder of the road, without any safeguards to provide against the dan'ger arising therefrom, and that whilst his servant was driving his horse and buggy on the road, and using due care, the horse unavoidably fell over this high and precipitous bank, and upset the buggy, which so frightened the horse that he broke the buggy and ran away. The case as made out by the proof shows that at the place where the accident happened, or the injury was sustained, the .metalled or macadamized part of the road was twenty-four feet in width, that for a considerable distance the side or dirt road was several feet below .the grade of the macadamized part, and the bank between the two was very abrupt and precipitous; that as his servant was driv ⁵⁶⁴ ing the plaintiff’s mare and buggy along and on the macadamized part of the road, in this locality, he met a four-horse wagon, at which the mare became somewhat frightened, and shied and went down over this bank, by which the buggy was upset, and the mare then kicked herself loose from it and ran away.

Their counsel have strenuously argued that the company are not responsible on account of the existence of this bank, that under their charter they are bound to construct^ grade and keep in repair and safe for travel, a hard or macadamized road of the width of twenty feet only, and, having done this, they have discharged every obligation which the incorporating statute imposes upon them in this respect; that in the grading of this twenty feet road, as the statute required it to be done, it was absolutely necessary that in places it .should be raised higher than the adjoining sides, and having been authorized by the Legislature to create such inequalities, the company cannot be held responsible for their existence. And whether under the true construction of their charter, the appellants are thus absolved from all liability on account of such an unprotected declivity or bank as that described in the testimony, is the principal question in the case. We have recently said that the charters granted to this and other like companies by the Act of 1804, ch. 51, are to be liberally construed in reference to the powers and privileges thereby conferred upon the several corporations (Balto. and Fredericktown Turnpike Co. vs. Routzahn, 61 Md., 37 ,) but the question as to the extent of the obligation now to be considered, has never before arisen in this Court. There can be no doubt as to the general proposition that a turnpike company which derives a revenue from the use of its road by travellers, is directly liable to those who travel upon it for .injuries occasioned by the want of repair of the road, without -any express statutory ⁵⁶⁵ provision imposing such a liability.

In such a case the liability to pay tolls is a consideration for the undertaking on the part of the corporation to furnish a safe road for the use of the traveller as an equivalent. Davis vs. Lamoile County Plank Road Co., 27 Vt., 602 . And it would seem to be very clear also that such a defect as that described in this case, and in such a location, constitutes such want of repair as will render the company liable to a traveller for injuries resulting therefrom, unless there he some provision in their charter which relieves them from such liability. The provision of the charter relied on as giving this relief is the 17th section of the Act of 1804, ch. 51.

The road was required to be sixty-six feet wide, and this section provides that the company shall cause it to he “ kept open to this width and shall cause twenty feet thereof, in breadth, at least, 1o be made an artificial road, which shall be bedded with wood, stone or gravel, or any other hard substance, well compacted together, a sufficient depth to secure a solid foundation to the same, and the said road shall be faced with gravel or stone pounded, or other small hard substance, in such manner as to secure a firm, and as near as the materials will reasonably admit, an even surface, and so nearly level in its progress as that it shall in no place, except over the Catoctin and South mountains, rise or fall more than will form an angle of four degrees with an horizontal line, and shall forever hereafter, during the continuance of said incorporation or incorporations, maintain and keep the same in good and perfect order and repair.” This provision must receive a reasonable construction in reference to the work to be accomplished and the object to be attained, that is to say, the construction and keeping in repair a public highway safe tor ordinary travel throughout its entire length. The right given in other sections of the charter to erect gates and receive tolls is the foundation of the obligation to construct and keep in ⁵⁶⁶ repair such a highway. It is required that at least twenty feet of the allotted space of sixty-six feet shall be metalled or macadamized, as specified, and this constitutes the hard part of the road. If this be built in the centre of the location, there will remain of the sixty-six feet, required to be Ttept open, a space on either side of twenty-three feet for public use.

It is matter of common knowledge that on these side spaces there are common dirt side roads which the public have constantly used and travelled upon, and we think it clear that this section contemplated that such side roads should be made and used for that purpose. The requirement that the whole space of sixty-six feet should be kept open for public use is inconsistent with the idea that the Legislature contemplated the construction of a road only twenty feet in width. Moreover the twenty feet is not prescribed as a limit of the macadamized or hard part. It is required to be that wide “ at least,” thus giving the company a discretion to make it wider wherever they chose, or whenever, in their judgment, safety required it to be wider.

Wherever this widening was not made and side roads were used, we are clearly of opinion it became the duty of the company to make them safe for travel and to keep them in repair. We do not mean, however, to say that it is incumbent upon them to make the whole space of sixty-six feet, including both the hard and side roads perfectly level transversely in every place, for that would prevent the construction of ditches absolutely necessary for drainage. Nor do we mean to say that no differences in grade or level between the hard and side roads can be permitted in any place. It is well known than when these roads were originally built and completed, such differences did exist in certain localities, and this was probably owing to the great expense that would attend the grading of the side roads to the level of the hard one in every place throughout its entire length.

Such differences in grade undoubtedly existed when the ⁵⁶⁷ Legislature passed the Act of 1811, ch. 203, hy which these roads, on their completion, were “confirmed ” as then “ located, turn piked and licensed.” But we do hold that where there are such differences the company is hound to make safe and convenient turn-outs to the side roads, and where they are so great and the slopes to the side roads so precipitous as to be necessarily dangerous,. such places should be protected by proper safeguards. This, after a ■careful consideration of the subject, is our construction of this section, and, in our'judgment, it is not only a fair and reasonable one, but as favorable to the company’as the statute will possibly admit. It follows from what we have thus said, that the Court below committed no error in rejecting the first, seventh and eighth instructions asked for by the defendants, which assert the propositions that the only obligation resting upon them under their charter was to make and keep in repair an artificial road of the width of 'twenty feet only, and that there was no evidence of any negligence on their part entitling the plaintiff to a verdict. The legal propositions contained in the other rejected prayers of the defendants are covered by the instruction given by the Court in lieu of those asked on both sides, to the effect that if the jury find from the evidence that the plaintiff’s driver was deficient upon the occasion in question in using such •care and skill as ordinarily careful and skilful drivers are accustomed to use under similar circumstances, and that but for the want of such care and skill the accident complained of would not have occurred; or if they find that the plaintiff's mare was an unsafe and unfit animal to be driven upon a public road, and that the plaintiff knew it, ■or might have known it, and that the accident would not have occurred if the mare had been ordinarily gentle and well broken, then their verdict must be for the defendants, otherwise the plaintiff is entitled to recover such amount as the jury may find from the evidence will compensate ⁵⁶⁸ him for any injury to his mare and buggy in consequence-of such accident, provided they find that the same was. caused by the perilous condition of the defendants’ road,, and that but for such perilous condition would not have occurred.

This instruction, in connection with the defendants’ fifth prayer, which was conceded, gave the jury all the law the case required, and certainly all that the defendants could rightfully demand. The defendants also took six exceptions to the rulings of the Court upon questions of evidence, and these we shall consider in their order. 1st. In the first exception the plaintiff asked Mr. McLean, the surveyor, who had made a plat of the road at the place of the accident, whether, in his opinion, from, what he saw of it, the road there was safe for travel by wagons and