Appeal
from circuit court, Baltimore county.
Action
by Frank Bateman against the Baltimore & Harford Turnpike
Company. Judgment for plaintiff, and appeal by defendant. At
the trial the plaintiff submitted the following instruction
which the court granted: "(1) If the jury shall find
that the defendant corporation owned and kept open for public
travel the turnpike spoken of in evidence, then it was
required to make and keep its said road, its bridges thereon
and the approaches to such bridges, in such a manner, and so
guarded, as to make them safe for persons traveling over the
same with ordinary care and caution; and if they shall
further 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 with
ordinary care and caution, and that in consequence of such
unsafe condition, the plaintiff, while traveling 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, even though the jury may
find the plaintiff's horse ran away with him as described
by himself and other witnesses, unless they shall further
find that said horse was an unfit horse to be driven over
such public highways, and the plaintiff knew or ought to have
known such fact, or unless they shall find that said horse
was not being driven at the time with proper care and skill
or that he ran away through some negligence of the
plaintiff." And the defendant submitted the following
instructions: "(1) If the jury shall find that, at the
place of the happening of the accident in question, the
road-bed of the bridge was fully twenty feet in width, and
free from obstacle, and that the roadway at and leading
thereto was also of said width, and in like manner also free
from obstruction, then the plaintiff is not entitled to
recover. (2) If the jury find as in the aforegoing prayer
and that at the time of the happening of said accident, that
the said plaintiff had lost control of his horse by reason of
his running away, and also by reason of the fifth wheel of
his wagon becoming locked, or from any other reason had lost
such control, so as to prevent or interfere with the proper
management of said wagon and horse, then the plaintiff cannot
recover. (3) The plaintiff is not entitled to recover in this
case, unless the jury shall find that the defendant's
road, when the accident occurred, was unsafe for travel, and
even if the jury shall be of opinion that the road was not
safe, or not so safe as it might have been, yet if they shall
find that any defect in the plaintiff's wagon helped to
produce the accident, or that the plaintiff's horse, in
descending the hill to the culvert, ran away, and got
entirely beyond plaintiff's control, and drew the wagon
out of the macadamized portion of the road and into the ditch
upon the left side, then the plaintiff is not entitled to
recover, unless the jury shall be satisfied that any want of
safety in the road, if they find such, was owing to the
absence of sufficient guards upon and at the approach to the
culvert, and that if such guard had been placed at the
approach to the culvert the accident could not have occurred.
(4) That under the terms of its charter the defendant is not
bound to construct a road of more than twenty feet in width;
and if the jury shall find that the road and bridge at the
point complained of were constructed in accordance with the
requirements of the defendant's charter, and that the
said road and bridge were otherwise in reasonable condition
and repair for public travel, and there was no want of
ordinary care and diligence on defendant's part in its
construction or repair at the time of the accident complained
of, then the plaintiff cannot recover. (5) That there is no
sufficient evidence in this case of negligence on the part of
the defendant as will entitle the plaintiff to recover."
"(7) That the plaintiff cannot recover, unless the jury
shall find that the defect complained of is of such a nature
that a criminal indictment would lie against the defendant
for the supposed defect, if they find such. (8) That the
plaintiff cannot recover in this case if the jury believe
from the evidence that any want of ordinary care on his part
contributed to produce the injury complained of. (9) That
there is no proof in this case upon which the jury can award
any damages for any services rendered to plaintiff by the
members of his family during the time he was confined to his
bed or to the house." The court granted the
defendant's fourth, eighth, and ninth instructions, and
refused the rest.
ALVEY
C.J.
This
action was instituted to recover of the defendant for an
injury sustained by the plaintiff while traveling on the
turnpike...
