Ver-Vac Bottling Co. v. Hinson

Offutt, J., delivered the opinion of the Court. On January 16th, 1922, at about three o’clock in the afternoon, William B. Hickey, an employee of the Ver-Vac Bottling . Company, was driving a truck belonging to his employer along the Lodge Earm Road, a public highway in Bal ²⁶⁹ timo-re County, where it hinds on the land of John W. Hinson, the appellee, on his way to deliver certain eases of soft drinks with which the truck Was loaded to the appellant’s customers living in 'that neighborhood. The road was had, and not feeling sure that it was passable, he stopped his truck at a point opposite a tree on Mr. Hinson’s land, where a colored man was working, apparently cleaning away some brush and undergrowth near .a ditch, and inquired of him whether he could get through to deliver goods consigned to two customers on his route.

He was told that he could, and as he was leaning forward to reach a lever for the purpose of starting the truck again, the tree fell, striking the rear part of the cab of the truck where the driver was seated; and “smashing up everything behind him.” He then discovered tbalt all the dirt had been grubbed away from 'the roots of the tree, and the roots themselves had been cut, and the tree allowed to remain in that condition, ready to fall, within a few feet of a public highway, with no warning of any kind to the travelling public of the danger which it created. After the accident the Ver-Vao Bottling Company brought this actiou against the appelleei, who owned the land ton which the tree stood, to recover for the loss it sustained through the destruction of its property. The case was tried before the court, in the Circuit Court for Baltimore County, and the verdict and judgment in that case being for the 'defendant, the plaintiff took this appeal. At the conclusion of the whole case the plaintiff offered three prayers and the defendant nine.

The court grantéd the plaintiff’s first and second prayers, and the fourth, seventh and ninth prayers of the defendant, and refused 'all the others, and those rulings are the subject of the only éxception found in the record. The rulings as to the plaintiff’s third prayer and the dofendant’s seventh and ninth prayers need little comment. The plaintiff in its third prayer asked the court to instruct itself that if it found “from the evidence in the contract- for sruhbinv' the tree entered into between the defendant and One ²⁷⁰ John Oliver it was contemplated or agreed that the tree should be grabbed, then in so far ais the tree immediately •adjacent to the public highway was concerned, 'the plan itself for' its removal was negligent, and, therefore, the doctrine of • 'independent contractor is no defense -in this suit, and' the ■verdict must-be for the defendant.” -That prayer was ob■•viously bad, first, because it assumed a fact which should ■have been left to the jury; that is, whether there was a eoal- ■ tract for felling the tree, and second, because it assumed that 'any plan for felling & -tree adjacent to <a public highway was either negligence in law or 'an actionable nuisance. -As a ■legal abstraction that is not a correct statement of the law, 'for while it is undoubtedly true that -one who directs a tree i to-be felled so- near a public highway that possible danger to ofcbe travelling public may reasonably bé anticipated a's a nát- - u.ra-1 cOnse-quenc-e -thereof,' is bound to uise at least ordinary ’care and' caution possible under the circumstances, to pre- '•vent any'such -injury, yet he is not responsible if in fact such care was exercised. As for' instance, if guards were Maintained to warn the travelling public of the danger, and one warned of the danger by them, in entire, disregard of 'such warning, exposed himself to- it and was injured, it'could 'not reasonably be said as a matter of law that the injury Should be attributed to the defendant’s- negligence' when it 'wais obviously due to bis own.

An owner may have- the right to remove trees from the highway itself (Clark v. Dasso, 31 Mich. 86 ), and a< fortiori he has' the right to-remove-trees 'on land abutting on -a highway without necessarily committing .a nuisance, even though the tree accidentally falls into the 'highway. The- defendant’s seventh and ninth prayers are the usual and conventional prayers offered so. frequently in cases of this character .and deal with the- burden of proof and the definition of negligence, and as they have been repeatedly approved both in f-orm and substance by this Court, we find no error in the rulings as to them. 1 ’ The defendant’s fourth prayer, which was granted, 'pre- ■ s-en'ts this proposition, that if “at the time of 'the happening ²⁷¹ of tbe accident mentioned in 'the testimony, .a tree on the land of the defendant was being grubbed or cut down, by one Robert Oliver,” and' if “the said Robert Oliver was not grubbing or cutting down said tree for tbe 'defendant, and if the * * * said Robert Oliver was not acting as the defendant’s servant or agent within the scope of his employment, then the verdict of the court sitting as a jury must be for the defendant.” That prayer is based upon tbe theory that Oliver, the colored man who felled the tree, had bought it from Hinson, and that he was, therefore, neither an employee of Hinson