Phelps Ex Rel. Phelps v. Board of County Commissioners , 117 Md. 175 ( 1912 )

By the declaration in this case it is charged that the Postal Telegraph and Cable Company, one of the defendants, with the permission of the County Commissioners of Howard County, the other defendant, and contrary to the duty of the defendants to keep the public roads of the county in a safe condition for public travel, erected a telegraph pole in a dangerous position in a designated public road of the county by placing the pole in the side of the highway and so close to the traveled portion thereof that the part of a hay carriage, known as the lazy board, which extends out from the center of the carriage about two feet beyond its "tread," would collide with the pole while the wagon was in the traveled portion of the road. It is alleged that the thoroughfare was thus negligently suffered and caused to become unsafe, and that the plaintiff while engaged in his daily avocation as a teamster, was riding on the lazy board of his wagon at night and, while exercising due care and caution, and while the wagon was traveling on the highway, being drawn by five horses, and while the driver of the team was using due care and caution, the night being misty and extremely dark, the lazy board collided with the telegraph pole previously mentioned and the plaintiff's leg was caught between the pole and the lazy board and crushed so that it had to be amputated at the knee, whereby he was seriously and permanently injured.

A demurrer to this declaration was filed and sustained in the Court of Common Pleas of Baltimore City to which the case had been removed from the Circuit Court for Howard County where the suit originated. This appeal has been taken from a judgment upon the demurrer in favor of the defendants.

The first objection urged against the declaration is that it is defective in not stating with sufficient particularity the negligence with which the defendants are sought to be charged. It is argued that a telegraph pole located as described is not necessarily and invariable dangerous to public travel, and it is insisted that the declaration should have contained averments showing in what way and on account of what peculiar conditions the danger existed.

The rule is well established that the general characterization of an act or omission as negligent or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability. In Anne Arundel County v. Carr, 111 Md. 148, the averment was that the defendant negligently allowed a bridge on one of the public roads of the county to be out of repair and unsafe for use, and that in consequence the plantiff's horse broke through the bridge and the plaintiff was injured. The declaration was held to be demurrable because it did, "not specifically state the negligence complained of, that is to say, in what respect the bridge was out of repair or unsafe." As the Court observed: "It may have been out of repair and unsafe by reason of faulty construction, broken or decayed timbers or planks, or other conditions, and the defendant was entitled to know the particular negligence for which the plaintiff sought to hold it responsible." A reasonable degree of certainty is required in such allegation in order that the defendant may be fully apprised of the nature of the charge against him and may be thus enabled to prepare for his defence.Poe's Pl. and Prac., Vol. 1, sec. 562; Gent v. Cole,38 Md. 110; Jeter v. Schwind Quarry Co., 97 Md. 699.

In this case it is alleged, and the demurrer admits, that the telegraph pole with which the plaintiff collided was negligently placed at a point on the public road where it was dangerous to public travel. The charge is not an indefinite one as to the existence of an unsafe condition. There is a distinct allegation that a designated object was negligently placed in a described position on a specified highway, and that being so located it was in fact a source of danger by reason of its close proximity to the traveled portion of the road. Such an averment can leave the defendants in no possible doubt as to the nature of the charge with which they are confronted. They are fairly and fully informed that the issue they are to meet is whether the pole mentioned in the declaration is in such a position on the highway as to unduly jeopardize the safety of travelers by exposing them unnecessarily to the risk of collision.

Under our statute a declaration can not be required to contain more than "a plain statement of the facts necessary to constitute a ground of action." Code, Art. 75, § 3. Where an unsafe condition may be due to one of several causes it is, of course, necessary that the specific cause intended to be relied upon should be stated; but where the allegations clearly indicate the exact danger to which the plaintiff attributes his injury, there can be no reasonable ground upon which to demand further particularity. The Code provides, for the class of cases to which it is appropriate, the following form of declaration: "That the defendant is an incorporated city, and is bound to keep its streets in repair; that one of its streets, called ____ street, was negligently sufferd by the defendant to be out of repair, whereby the plaintiff in traveling on said street and using due care was hurt." Art. 75, § 24, sub-sec. 37. In such a case the defendant corporation is not left to conjecture as to the character of the negligence with which it is charged. It is plainly sought to be held responsible for an injury resulting from a defect in the surface of a designated street. In the present case the averment is no less specific when it charges that the road was unsafe by reason of the danger of collision to which persons using it were subjected on account of the presence of a telegraph pole in close proximity to the traveled way.

The issue thus presented is essentially one of fact, and as such it must be determined upon a consideration of the evidence, when adduced, showing the dimensions, conformation and established use of the roadway. There may be conditions under which the erection and maintenance of a telegraph pole as near as the one in question to the traveled portion of a highway would not be regarded as an unreasonable interference with the rights of the public. But it could not be held, as a matter of law, that such an object could under all circumstances be so located with impunity.

In Roth v. Highway Commission of Baltimore County,115 Md. 469, this Court held it to be a question of fact for the jury to determine whether under all the conditions shown in the case there was negligence on the part of the defendant in leaving ungarded the edge of a culvert and embankment between which and the traveled way there was a space estimated to be from one to four feet in width covered with vines and bushes; and the same principle was applied in Little v. Central Tel. Co., 213 Pa. 229 (62 A. 848), where a young woman who was riding with others on a hay wagon with her feet extending over the side was struck by a telephone pole at the margin of the road. In the latter case a recovery against the defendant company was sustained because there was found to be legally sufficient evidence to show that the pole was placed on the traveled portion of the road or insuch close proximity to it as to endanger the safety of persons using the highway.

The defendant telegraph company in the present case was authorized, under a general statutory provision (Code, Art. 23, sec. 324), to construct its line along and upon the highways of the State, by the erection of the necessary fixtures, provided they "shall not be so constructed as to incommode injuriously the public use" of the roads, or interfere with the convenience of any landowner more than is avoidable. It is contended, in view of this enactment, that the defendant company was in the exercise of a lawful right in locating its pole on the roadway, and that so long as the pole was not placed within the limits of the traveled or prepared way, and did not narrow or restrict the space thus defined, it could not be said to incommode the public use. The same question was raised in Little v. Central Tel. Co.,supra, and it was held, under a similar statute, that if a pole is erected so near the beaten track as to endanger the safety of travelers, it must be regarded as incommoding the public in the use of the road. This view is in accord with our own conclusion and is manifestly reasonable and just.

It is objected further that the declaration shows affirmatively that the defendant was guilty of contributory negligence, and this is urged as a separate ground of demurrer. The theory of this objection is that the plaintiff, upon his own showing, was not using the highway at the time of the accident in the usual and ordinary way and was not observing due care under all the circumstances. It is argued that as the lazy board customarily projects from the left side of the wagon, the plaintiff's team at the time he was injured must have been on the side of the road where he was not entitled to drive. The declaration, however, alleges that the plaintiff and the driver of the team were both exercising due care and caution at the time of the injury, and as we are unwilling to hold that the presence of a team on the left side of a road raises a conclusive presumption of negligence on the part of those who control its movements, we must decline to sustain this objection.

In the argument of the case there was a very full and able discussion of the question of liability for injuries resulting from obstructions upon or near the course of travel on public highways. We have not found it necessary for the purposes of this decision to enter into a consideration of this general subject. The precise and single question before us for decision is concerned with the sufficiency of the declaration, and to that issue our present ruling is confined. In our opinion the demurrer should have been overruled.

Judgment reversed, with costs and new trial awarded.