Agricultural & Mechanical Ass'n of Washington County v. Gray

• Court: Maryland Supreme Court
• Writing for the Court: STOCKBRIDGE, J.
• Citation: Agricultural & Mechanical Ass'n of Washington County v. Gray, 118 Md. 600, 85 A. 291 (Md. 1912)
• Decision Date: 15 November 1912
• Parties: AGRICULTURAL & MECHANICAL ASS'N OF WASHINGTON COUNTY v. GRAY.

85 A. 291

118 Md. 600

AGRICULTURAL & MECHANICAL ASS'N OF WASHINGTON COUNTY v. GRAY.

Court of Appeals of Maryland

November 15, 1912

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Suit by Louis F. Gray against the Agricultural & Mechanical Association of Washington County. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

Henry H. Keedy, Jr., and J. Clarence Lane, both of Hagerstown, for appellant. Frank G. Wagaman, of Hagerstown, for appellee.

STOCKBRIDGE J.

The Hagerstown Fair is one of the events of the year in Western Maryland, attracting visitors from Washington and the adjacent counties. Among those who flocked thither in October, 1911, was Louis F. Gray, who on Thursday, the 12th of the month, betook himself to the fair grounds, as he had been wont to do in each year since 1881, for the double purpose of recreation and education. To accommodate the crowds which were anticipated, the Agricultural & Mechanical Association, which conducted the fair, had erected a grand stand some 200 feet long and from 100 to 150 feet wide. In front of this stand, and between it and a track used for racing, was an open space to accommodate the bookmakers those who desired to place bets on the races, those who could not find space in the grand stand, and those who wished to view the finish of the races at closer range. This open space was elevated some 10 or 12 feet above the track, and a stone wall, partly laid in cement and partly with loose stones retained the earth in place to the edge of the track. Along the top of this stone wall was a railing, made from iron piping, with upright posts at intervals, into which the horizontal piping was screwed by means of a thread cut in the pipe. The railing seems to have been intended for the two-fold purpose of preventing persons from falling down the 10 feet onto the track, and also for persons to lean or rest upon while watching the finish of the races. The posts spoken of were set in holes drilled in the stone, and secured in place by molten lead poured around them. There were also at intervals guy or stay rods from the rail, carried into the ground and supposed to be anchored there. The purpose of these guys or stays was to impart added strength to the rails. On the Thursday afternoon before spoken of the final race of the day was in progress. Gray, the plaintiff, had obtained a post of vantage next the rail to see the finish, an accident among the racers took place near the three-quarters pole, the crowd pressed forward to see what the trouble was, a portion of the rail gave way, and Gray was thrown to the track below, with some 10 or 12 others, and possibly with some of the others on top of him. On examination, Gray was found to have one, and perhaps two of his ribs broken, and a contused injury on his shoulder, internal rather than external in its nature, and this appears to have affected his nervous system. It is to recover for these injuries that this suit was brought.

Three bills of exception were taken in the progress of the trial, the first of which was with regard to the admission of certain evidence, and arose in this way: A witness by the name of Lowman, called by the plaintiff, testified that some time in November, about one month after the fair, he had made an examination to see how the stay rod was held in the ground, and was then asked the question: "State what examination you made of the place, and what you found at the time in November?" This was objected to by the counsel for the defense, and, when the objection was overruled, an exception was reserved. In support of the objection the case of Annapolis Gas Co. v. Fredericks, 109 Md. 595, 72 A. 534, and 112 Md. 455, 77 A. 55, was relied upon, where it was said that the "rule is well settled that evidence of a subsequent condition of the place where the accident occurred is not admissible to show a negligent condition at the time of the injury, because the question of negligence is to be determined by the actual condition at the time of the injury"; but in that same case it was also said that there are certain well-recognized qualifications and exceptions to this rule. The true test of whether such evidence is or is not admissible does not depend so much upon the time of the examination, "but upon the relevancy of the facts testified to to the issue, and their capability of explaining it. Any circumstances that may afford a fair and reasonable presumption of the fact to be tried are to be received, and left to the consideration of the jury, who are to determine upon their precise force and effect, and whether they are sufficiently satisfactory to warrant them in finding any of the facts in issue." Brooke v. Winters, 39 Md. 505; 29 Cyc. 614; Refrigerating Co. v. Kreiner, 109 Md. 361, 71 A. 1066; Huff v. Simmers, 114 Md. 549, 79 A. 1003; Treusch v. Kamke, 63 Md. 280. And the admissibility of evidence of this character is very fully considered in the case of Md., D. & V. R. Co. v. Brown, 109 Md. 319, 71 A. 1005, in which Judge Pearce reviews many of the decisions, and cites and adopts the rule as laid down in 1 Wigmore on Evidence, § 437, wherein the author holds that, in admitting or rejecting such evidence, much must be left to the discretion of the trial court. Examination of the record in this case does not lead to the conclusion that the discretion of the trial court in overruling the objection of the defendant and admitting the testimony was in any way abused, and therefore no reversible error was committed.

The second exception was to the overruling of a special exception presented by the defendant to the granting of the plaintiff's third prayer, or so much of it as permitted the jury to take into consideration whether the injuries to the plaintiff were in their nature permanent. The evidence as contained in the record going to the permanency of the injuries is as follows: The plaintiff himself testified "that he suffered with his arm up until about Christmas that it was very bad and he had not much use of it, had no strength in it; that there is a pole in the shop where they hang clothes, and it is impossible for him to use his right arm to hang them up, a pain strikes him in the arm, and goes right back to his shoulder blade, that continues to this time." This evidence was given at the trial of the case on March 5, 1912, or approximately five months after the injury. Dr. Miller, who was called for the plaintiff, testified to attending the plaintiff at the time of the injury, and from that time till the 25th of November following; that the contused wound on the shoulder was not at first discovered, because it did not show on the outside; that there are nerves in that part, and that the nerves were bruised with the flesh. He further testified that at the time when he ceased attending him the plaintiff was cured as far as professional knowledge could cure him; that he is a natural invalid, and therefore is not cured now. There is no contradiction of the evidence that the plaintiff suffers, and for a long time has suffered, from curvature of the spine, and he may possibly be below the normal of strength; but the plaintiff was before the jury, they could to some extent judge of his then condition, and with the testimony in the case, such as that mentioned, a court could not say as matter of law that there was no evidence of permanent injury. What the probative value of the evidence was was an entirely different question, one for the jury to pass...