Baltimore & Harford Turnpike Co. v. Bateman , 68 Md. 389 ( 1888 )

Alvey, J. C.,

delivered the opinion of the Court.

This action was instituted to recover of the defendant for an injury sustained by the plaintiff while travelling on the turnpike road of the defendant from his home in Harford County to the City of Baltimore; the injury being caused, as it is alleged, in consequence of the defective and insecure condition of the road.

The accident occurred in the forenoon of the 19th of April, 1885. The plaintiff was travelling in a one horse wagon; the horse was owned by the plaintiff, but he had borrowed the wagon of a neighbor. While proceeding on his way he came to the top of a hill, and in descending the grade of which to a bridge or culvert across the road, the horse ran away and became quite unmanageable by the plaintiff; and as he approached the bridge the horse left the road and turned the vehicle over into the side ditch, and the plaintiff was thrown out and quite seriously injured.

At the trial below, among other prayers offered by the defendant for instruction to the jury, was one to the effect that there was no evidence legally sufficient upon which the plaintiff could recover. That prayer was rejected; and, upon careful examination of all the evidence contained in the record, this Court is of opinion that there was no error committed in the refusal to grant that prayer.

The defendant was incorporated by the Act of the General Assembly passed on the 3d of January, 1816; and its turnpike road was constructed under the provisions of that Act, and the supplemental Act passed on the 19th of January, 1819. By its charter the defendant was authorized to open and make a turnpike road between the points designated, “not exceeding sixty feet in width, of which twenty feet at least shall he an artificial road, composed of stone, gravel, etc., and erect and keep up bridges over the streams crossing the same.” The road was made and has been in use for more than half a century. It appears by the proof, offered both by the plaintiff and defendant, that the road has several curves from the top of the hill to the bridge, at which the accident occurred; and, in the language of the witnesses, it has “some steep grades and sharp descents ;” but that the descending grade terminates from fifty to one hundred yards before the bridge is reached. It- is also shown that the macadamised part qf the road varies in width from twenty-five feet at the top of the hill to about sixteen or seventeen feet at the bridge ;- and that the bridge, as it existed at the time of the accident, was about eighteen feet wide in the clear. The road-bed, at its immediate approach to the bridge, was four or five feet above the side ditch into which the plaintiff was thrown, and there was no guard rail along the side of the road as it approached the bridge. The horse and wagon did not get upon the bridge, but got over the side of the road into the ditch just at the end of the bridge. And the whole question is, whether the narrowness of the road-bed and the failure of the defendant to keep and maintain a sufficient guard rail, on the side of the road as it approached the bridge, constituted such defect and want of safety in the road .as to render the defendant liable, if hut for the want of width of the road and proper guard rail the' accident to the plaintiff would not have occurred.

The accident as proved must be connected with the alleged defect-in the road as the cause of the injury. If the road in its approach to the bridge was wide enough for' the customary travel with safety, those travelling using ordinary care to avoid accidents, and the injury to the plaintiff was occasioned by the want of care or skill in driving the horse, or by the vicious and uncontrollable disposition of the horse, not excited by any defect in or unlawful object upon the road, then, unquestionably, the plaintiff would not be entitled to recover. But, on the other hand, if the road was so narrow at the place of the accident as to render it in any degree dangerous or unsafe to persons driving horses of ordinary safe habit, but which might he liable to shy from the road track, or to take fright and to plunge into the side ditch below, then it was the duty of the defendant to keep up at least a sufficient guard rail or barrier, to prevent such accidents. And if the accident to the plaintiff was caused, not by his own want of ordinary care, but by reason of the existence of such defect in the road, and the want of proper guard to avoid accidents, the defendant, clearly, would be liable for any injury sustained. All horses are prone, more or less, to shy or to take fright. Indeed it is part of their natural and probable habit; and they are not condemned as being unfit for road service, because they are liable to such habit. Roads are constructed with reference to this generally known or probable habit of horses ; and hence to make a road safe, the track must be wide enough to allow for the possible shying and starting of teams, without danger to those travelling with them of being thrown over embankments or against obstacles in or along the road. And therefore, if the track is not wide enough lor this purpose, and a horse, in starting or running away, without fault of the driver, is brought in contact with a defect within what should he the reasonable limits of the road, and damage ensues, the managers of the road will he liable. Whart. Neg., secs. 104, 105, 985. There has been some diversity in the opinions of Judges upon this subject; but the principle maintained by a preponderance of decision would seem clearly to be in accordance with that which we have stated.

The principle embodied in the first prayer offered by the plaintiff, and which was granted by the Court below, is correct, according to the view entertained by this Court, and that prayer fairly embraces the law of the case; but its terms are not all free from objection, and it was for that reason calculated to mislead the jury. It should therefore have been either • modified or rejected. By granting this prayer the jury were instructed, that the defendant was required to make and keep its road, its bridges thereon, and the approaches to such bridges, in such a manner and so guarded as to make 'them safe for persons travelling over the same with ordinary care and caution ; and if they should find “that the defendant negligently permitted a part of its road, one of its 'bridges, and the approach thereto, to be in an unsafe condition for persons using the same Vith ordinary care and caution, and that in consequence of such unsafe condition, the plaintiff, while travel-ling over said road and approaching said bridge with ordinary care and caution, was injured as complained of, then the plaintiff is entitled to recover in this action,” &c. There was considerable testimony given to show the condition of the bridge ; that it was out of repair, and was unsafe! But the defective condition and want of repair of the bridge had no causal connection with the accident; for the plaintiff’s horse and wagon, according to all the testimony, his own included, did not get upon the bridge, but they left the track of the road, and got into the side ditch, at the end of the bridge. The bridge, according to the evidence,' and to actual measurement, was wider than the bed of the road as the latter approached the bridge. According to the terms of the instruction, the jury might have inferred that the defective condition of the bridge formed an element and was ground for holding the defendant liable for the injury'to the plaintiff. The instruction should have been more explicit in confining the attention of the jury to the supposed defect in the road that occasioned the-accident.

(Decided 14th March, 1888.)

There does not appear to have been error in any of the other rulings of the Court. The first, second and third prayers of the defendant were properly rejected, as being inconsistent with the principle embodied in the first prayer of the plaintiff, which was adopted by the Court. The defendant’s fourth, eighth and ninth prayers, which were granted, would seem to have been as liberal to the defendant as it could in reason ask. The seventh prayer of the defendant asked the Court to instruct the jury, that the plaintiff could not recover unless they should find that the defect in the road was of such a nature that a criminal indictment would lie against the defendant for such defect. It is enough to say of such prayer that it was properly rejected, if for no other reason, that it required the jury to determine, as matter of law, when and for what defect an indictment would lie. But we know of no such criterion for determining the private civil rights of a party to recover for an injury suffered, as that propounded by this prayer. We shall reverse the judgment for the error pointed out in the first prayer of the plaintiff, and award a new trial.

Judgment reversed, and new trial awarded.