Baltimore & O. R. Co. v. Howard County Com'rs

• Decision Date: 30 June 1909
• Citation: 111 Md. 176,73 A. 656
• Court: Maryland Court of Appeals
• Parties: BALTIMORE & O. R. CO. v. HOWARD COUNTY COM'RS.

73 A. 656

111 Md. 176

BALTIMORE & O. R. CO.

v. HOWARD COUNTY COM'RS.

Court of Appeals of Maryland.

June 30, 1909.

Appeal from Circuit Court, Carroll County; Wm. Henry Forsythe and Jas. R. Brashears, Judges.

Action by the County Commissioners of Howard County against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and HENRY, JJ.

Francis Neal Parke and James A. O. Bond, for appellant.

John E. Dempster and Guy W. Steele, for appellee.

BRISCOE, J. The question in this case is one of indemnity, and arises in the following manner: On the 13th of September, 1907, Mrs. Agnes Hill, widow of Alexander S. Hill, late of Baltimore county, deceased, recovered a judgment for $6,000 and costs for the death of her husband by reason of the alleged negligence of the county commissioners in permitting a public highway to be so maintained as to be unsafe for public travel. The judgment was paid by the county, and this suit is brought by the county against the appellant corporation as the alleged actual wrongdoer to recover the amount it was compelled to pay. The public road where the accident happened was situate in Howard county, and was under the control and supervision of the county commissioners. The road led out of Howard county over the Patapsco river to the village of Ilchester, in Baltimore county, over and across a bridge, which was used by the citizens of those counties in passing and repassing to and from their respective counties. The bill of particulars filed in the case of Hill v. County Commissioners states that the death of Dr. Hill was caused, first, by the wrongful act, neglect, and default of the county commissioners of Howard county in suffering their public road in Howard county near the village of Ilchester, at the time of the fall and the injuries so sustained therefrom, and for a long time previous thereto, to be so constructed, out of repair, or so maintained as to be unsafe for travel by reason of defendant having or leaving a steep or dangerous embankment or abutment of the bridge, to wit, the upstream wing or retaining wall thereof without guards, railings, or safeguards, or without sufficient guards, railings, or safeguards, to provide against dangers ensuing from, or which might reasonably ensue from, ordinary and reasonable use of the road as a public highway at the place thereon; and, second, that the death of Dr. Hill was caused by the wrongful act, neglect, and default of the county commissioners of Howard county in suffering the bridge at the Howard county side thereof at the time of the fall and the injury sustained, and for a long time previous thereto, to be and remain with an unsafe and dangerous approach or embankment, to wit, a steep and dangerous retaining wall forming the left or upstream edge of said Howard county approach or embankment of the bridge without guards, railings, or safeguards, or without sufficient or adequate guards, railings, or safeguards, to provide against dangers arising or which might reasonably arise from the ordinary and reasonable use of the bridge and the approach thereof as part of the public highway; and that whilst Dr. Hill was driving as aforesaid on and along the road to and upon the approach and abutment of the bridge at the time and place in Howard county, and while using due and reasonable care and caution, unavoidably drove over the wing or retaining wall of the abutment so forming the edge or side of the approach or abutment of the bridge, and from the fall resulting he received mortal injuries from which death ensued.

The declaration in the present case alleges practically the same negligence against this defendant corporation; that is that in or about the year 1902-1903 the Baltimore & Ohio Railroad company in the relocation of its right of way and the roadbed and tracks of its railroad, under and by virtue of the authority of its charter granted by the state of Maryland, obstructed and changed the location of the highway as it then was, and also dumped or placed large quantities of earth and stones therein, thereby raising the surface thereof as it approached the bridge above the level it had been previously been, and by so doing rendered the road at the approach to the bridge unsafe and dangerous by reason of the fact that the wing walls of the abutments mentioned no longer extended above the bed of the road of sufficient height to guard the traveling public from going out of the road over the embankments thereof into the river below, a distance of about 18 feet; that it was the duty of the defendant to have raised the abutments or wing walls to their former height above the level of the bed of the highway, or to have provided and maintained suitable, safe, and proper guard rails at this point to protect those using the road from going over the embankment, so that all persons (together with their horses, vehicles, etc.) desiring to travel in and upon the road and to cross and re-cross the bridge might do so with safety by night or by day, while using due care and caution. It also charges that by reason of its failure to raise the abutments or wing walls along the embankments thereof in Howard county to their former height above the level of the highway as they existed before the surface of the same was raised by the defendant, or by placing adequate and sufficient guard rails thereon to provide against the danger ensuing or which might ensue from the use of the road and bridge as a public highway at this place, whereby the citizens of said county and the public generally were unable to pass and repass over the bridge with safety while using due care as they had been accustomed to, and thereby the defendant by this neglect suffered and permitted the plaintiff to become liable to the citizens of the county and the public generally for all damages that might accrue to the property and person of the citizens of the county and the public generally for injuries received in traveling over the highway accruing by reason of the unsafe condition thereof caused by the changing of the roadbed and the surface thereof made by the defendant without guarding and protecting the same. It further alleges that the death of Dr. Hill was caused and occurred by reason of the unprotected and unguarded approach to the bridge and the embankments thereof caused by the action, omission, and work of the defendant corporation, and that the defendant is bound in law to reimburse and pay to the plaintiff the damages and losses it has been compelled to pay out occasioned or accruing by the defendant's wrongful act and neglect. The trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $6,506 with interest and costs, and from this judgment the defendant corporation has appealed.

There were 32 bills of exceptions reserved at the trial of the case. Thirty of them relate to the admission or rejection of testimony, one to the overruling of the defendant's special exception to the plaintiff's first, second, and fourth prayers, and the remaining exception to the granting of the plaintiff's prayers, and to the defendant's rejected prayers. The duty imposed upon county commissioners in this state under sections 1 and 2 of article 25 of the Code and the legal liability on the part of the county for injuries from a neglect of duty to keep the roads in repair and in a safe condition have been settled by repeated decisons of this court. Balto. Co. v. Wilson, 97 Md. 209, 54 Atl. 71, 56 Atl. 596; Adams v. Somerset Co., 106 Md. 197, 66 Atl. 695. In Garrett Co. v. Blackburn, 105 Md. 230, 66 Atl. 31, it was...