State v. Mayor of Baltimore

Aniiisrs, J., delivered the opinion of the Court. This suit- was brought in the name of the State of Maryland to the use of the widow and children of Edwin IT. Dove, against the Chesapeake and Potomac Telephone Company of Baltimore City, the Mayor and City Council of Baltimore and the Consolidated Gas Electric Light and Power Company, under Lord Campbell’s Act, for damages to the equitable plaintiffs arising out of the death of the lmsband and father, caused, as they allege, by the negligence of the defendants in permitting a live electric wire “to bo and remain suspended in a. dangerous condition exposed to contact with pedestrians” upon one of the highways o-f Baltimore City, to wit: Pratt Street, near the northeast corner of Pratt and Schroeder Streets,, with which the plaintiffs’ decedent came in contact. The suit was dismissed as to tlie Chesapeake and Potomac "Telephone Company, and at the conclusion of plaintiffs’ testimony the case was withdrawn from the jury as to both of the remaining defendants on demurrers to the evidence, the court instructing the jury, at the city’s request, that there was no evidence under the pleading's legally sufficient to entitle plaintiffs to recover against the Mayor and City Council of Baltimore; and, at the request of the Oonsolidated Gas Electric Light and Power Company, that negligence on the jiart of the deceased directly caused tlio injury complained of, and the verdict must therefore lie for said company.

Plaintiffs conceded the prayer offered in behalf of the city, but excepted to the granting of the prayer in bolialf (4 the appellee, and from that ruling this appeal was taken. ATo other exceptions were reserved, so the record presents but a single question, viz: Was the conduct of the deceased of such a reckless character that the Court must declare him ³⁴⁶ to have been guilty of contributory negligence as a matter of law? Or were tbe circumstances such as to leave room for a difference of opinion among reasonable men as to whether be was justified in taking the risk he took ? Ao citation of authority is needed to support the proposition, recognized by decisions everywhere, that where the acts ' relied upon to constitute contributory negligence are such that reasonable minds may differ as to their quality, the question .should be submitted to the jury.

On a Sunday afternoon Edwin H. Dove, while taking a walk with a friend, noticed that an electric wire of appellee had fallen from a pole line on Pratt Street near Schroeder Street. The wire had fallen in the form of a loop and extended for some distance in and over the gutter, with the ends caught mad entangled with the other ovea*haiaging wires, or in the branches of trees. The insulatiooi was off of part of the wire, and at one point, where it rested iia the gutter, it was sparkling and sputteriaig. A number of "children were playing on tbe sidewalk in close proxiaaiitv to tbe wire and were poking at it with sticks.

At the time Dove uaadei'took to paash or throw the wire into the street the spaikling seems to have ceased. Dove said, according to one of the witnesses, “them children might be in the way, you see it is not loaded, hut if that wire comes dowia, tangles up and falls on them it might hurt them.” The podaat where the wire had been .sparkliaag was “about 10 feet or about 12 feet” from where Dove shoved the wire off. “There were children right around the point where the wire was spluttering.” Dove waved them back aaad undertook to push the wire away from thean iiato the street, and was instantly electrocuted. Whatever may be thought about the danger involved in this act, it cannot be said that one coaald know iia advance that it would result iia the death of the man attempting it. Certainly he did not anticipate that result, as there is nothing to indicate that he contemplated suicide. ³⁴⁷ It did not follow,