Roth v. Highways Commission

Boyd, C. J., delivered the opinion of the Court. This is a suit against the Highways Commission of Baltimore county by the appellant for injuries sustained .by her by reason of the alleged neglect on the part of the defendant to properly protect the end of a culvert running under one ⁴⁷¹ of the public highways of the county. Under Chapter 465 of the Acts of 1904,- as amended by the Acts of 1908, Chapter 495, the appellee has general charge and control over all the public highways, roads, bridges, streets and alleys of Baltimore county, and it is made the duty of the commission to keep them in - proper condition of repair and reasonably safe for public travel. The county commissioners constitute the commission, by which name the statute provides they may sue and be sued in all matters pertaining to the highways and bridges over which they are given control and there is conferred upon the commission all the powers, with-respect to the public highways of the county theretofore vested in the county commissioners, or other officers charged with their proper maintenance. -I-t is provided that: “For any negligence or breach of the duties imposed by this’ subtitle, said commission shall be liable in damages at the suit of the person or persons insured thereby, but it shall be subject to no other or greater liability in the premises than was the board of county • Commissioners of ■ Baltimore county in matters relating to the roads and bridges of the county before the passage of the Act” of 1900, Chapter 685, and that any final decree or judgment obtained against said Highways Commission in any' such suit or action, or costs.adjudged against it, shall be satisfied and paid in due course by the county commissioners of said county out of the proper funds for such purpose. ' At the conclusion of the’testimony offered on-behalf of the plaintiff, the Court granted the following prayer: “Under the pleadings in this case, no evidence has been- offeredTegally sufficient to entitle the plaintiff to recover- in this case; and the verdict of the jury must, therefore, be for the defendant”.

A verdict was accordingly rendered for' the defendant, and this appeal was taken from the judgment entered' thereon. The ruling on that prayer constitutes the only exception presented by the record. ' Ho objection to the declaration has been urged before us, and the case went to trial on the general issue. So although ⁴⁷² the prayer referred to the pleadings, it will be unnecessary for us to speak of them beyond saying that the declaration is sufficient, and a recovery can not be denied by reason of anything in it or omitted from it. Although the prayer does not distinctly q>resent the question of contributory negligence, the argument was addressed to that as well .as to the alleged negligence of the defendant and we will consider the case from both standpoints.

The plaintiff (appellant), in going from the City of Baltimore to her home, was driving one horse hitched to a wagon, on a public highway in Baltimore county known as Cook’s lane, which connects Edmondson avenue with St. Agnes lane. Just before she reached the latter, an automobile containing three ladies and a chauffeur turned into Cook’s lane, and the chauffeur stopped the automobile on his right side of the road to inquire of the plaintiff whether that was the road leading to Edmondson avenue. The plaintiff stopped her horse on her right of the road, and the record reports the chauffeur as giving this account of what then occurred: “That his machine was standing still. The horse came within 15 or 20' feet from the frontl of his machine and stopped there, and in trying to start, the horse and wagon went down off the road.

They just slid off. The horse was very quiet and did not shy. Witness was on his right side of the road, and Mrs. Roth was on her right side of the road.” On cross-examination he also said that he went “as far to his side of the road as he could before stopping the machine, and he didn’t pay much attention to the lady; but he did not stop his engine, and that there was plenty of room for a wagon to pass him on his left. The horse was standing quite still, and his machine was making no noise * * *.

He waited for her to drive on. The horse did not rear or plunge, and he supposes that she pulled as far to her right of the road as he did but could not say exactly, and after she gave the information she went over the embankment.” - One of the ladies in describing the relative positions of the automobile and the wagon, in answer to the question whether another team could ⁴⁷³ have passed between them said, that “we were on the hias,” and a team would have had to pull in front of the automobile—meaning as we understand her testimony that the two vehicles were not opposite each other, hut another team could have passed to their left, and then have gone in front of the automobile and have passed the wagon. At the point’ where the accident occurred, there is a culvert running under the road, which was! twenty-six feet from end to end. It is on the surface about level with the road, and on the side where the plaintiff was injured, there is an embankment or abutment eight or ten feet high.

The plaintiff, the horse and the wagon went over that embankment, down into the ditch or stream below. The witnesses who went to her assistance described her as being at the bottom in the water, with the wagon on top of her and the horse on top of the wagon. The chauffeur and some men who were called hy the ladies got the horse and wagon off her, and released her from the position she was in. She was taken to her home in the automobile, and she was undoubtedly very seriously injured.

One of the ladies in the automobile was asked on cross-examination: “Q. After getting through talking, did you thank her (meaning Mrs. Roth) for the information ? A. We did not have time. Q. She told the horse to get up?' A. Yes, sir; and then went down. Q. Wagon went first?

A. Yes, sir.” The plaintiff testified: “I went to town and was coming home. I met an automobile and they asked me where the road led. I wanted to tell them, but I felt that the back wheel was slipping and that I was going. Then I don’t know nothing.” Again she said, in answer to which wheel it was, “The back one on the right hand side,” and when asked, “What happened then,” said, “I felt that I was going down as the wheel, was slipping.

Then I do not know any more.” It was shown that there was no fence, guardrail, or anything at the end of the culvert, above the ditch into which the plaintiff fell except some vines and bushes which had grown over the end of the culvert and down the side. There ⁴⁷⁴ is some difference of opinion between the witnesses as to the width of the traveled portion of the road, and as to how far the vines, bushes, etc., extended from the end' of the culvert towards the road, although they very generally agree that the whole width from one end of the culvert to the other was twenty-six feet. They concur in the statement that there were vines, bushes, grass and foliage, as some of them speak of it, between the traveled part of the road and the end of the culvert over the steep ditch, and they show that they were high enough to prevent anyone on the road from seeing the end of the culvert, or the ditch beyond it. One witness said that there was about twenty feet’ of macadamized road “to where it slopes” and that the bushes grow about two or three feet on the culvert, and then down on the side; another said that he thought that only eight or ten feet of the road was macadamized; the husband of the plaintiff said that the entire width was about twenty-five feet, and that “there is 20 feet of road where the people travel”, and that it was not one foot from there to the end of the culvert.

Another witness said that “the road is 15 feet across the middle and on one side there was five feet of grass and on the other side there was six feet”; another that, “there is 16 feet of macadam ; there are four feet of grass on Day’s side and six feet on Martin’s side., On the side of the accident there are four feet of bushes the regular roadway, and that four feet is weeds and dirt, but that is not part of the traveled roadway unless one pulled in there in order to get out of the way of an automobile.” He was asked on cross-examination: “In order to fall over, the wagon, carriage or anything else would have to leave the road and drive four feet into the bushes, and replied, yes, sir; from the regular road.” Still another witness said: “The road and the culvert are 26i feet wide counting the bushes,” and in answer to the question, “How far was it from where the foliage was to the edge of the culvert,” he said, “Only about a foot,” but added that he had never measured it. At least some of the bushes and' vines were about three or four ⁴⁷⁵ feet high, and as the accident occurred on July 27th the foliage was doubtless quite thick. The plaintiff testified that she could not see through the bushes and she could not see that there was a culvert there. One or two of the witnesses said that there had at one time been a wire fence on the top of the culvert, which was put there by an occupant of adjoining property, but it had gone down.

At the time of the accident there were two posts, in bad condition with two strand’s