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

• Decision Date: 22 June 1910
• Citation: Baltimore & O. R. Co. v. County Com'rs of Howard County, 77 A. 930, 113 Md. 404 (Md. 1910)
• Parties: BALTIMORE & O.R. CO. v. COUNTY COM'RS OF HOWARD COUNTY.
• Court: Maryland Court of Appeals

77 A. 930

113 Md. 404

BALTIMORE & O.R. CO. v. COUNTY COM'RS OF HOWARD COUNTY.

Court of Appeals of Maryland

June 22, 1910

Appeal from Circuit Court, Carroll County; Wm. H. Thomas and Wm. H Forsythe, Jr., Judges.

Action by the County Commissioners of Howard County against the Baltimore & Ohio Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, and URNER, JJ.

Francis Neal Parke and Jas. A.C. Bond, for appellant.

Joseph L. Donovan and Guy W. Steele, for appellee.

BURKE J.

This is the second appeal in this case. The first case is reported in 111 Md. 176, 73 A. 656. As the record now before us shows that the pleadings are the same, and that the plaintiff offered substantially the same evidence to support its case as it did at the former trial, it is unnecessary again to notice the pleadings or to discuss at any great length the plaintiff's evidence. The opinion in the former case, in which the facts relied on by the plaintiff are set out by Judge Briscoe, dispenses with the necessity of restating them. We need only say that the evidence in the present record tends to support the declaration, and, therefore under the principles announced in the first appeal the plaintiff would be entitled to recover, unless there be found in this record some new facts to take the case out of the principle of the former decision. The appellant insists that this record does disclose such facts, and that the legal effect of the new evidence is to bar the plaintiff's right to maintain the suit.

The record presents for review eight bills of exceptions. Six relate to the ruling of the trial court on questions of evidence, the seventh to the action of the court in sustaining the plaintiff's special exceptions to the appellant's eleventh prayer, and the eighth to the action of the court upon certain prayers submitted by the parties at the conclusion of the whole case.

The first and sixth exceptions are abandoned. There was no error in the rulings on the second and third exceptions. In these the court allowed the plaintiff to prove by James E. Hobbs the condition of the bridge on the Howard county side just before the railroad began its improvements, and the condition existing at the approach to that bridge after the railroad and finished its work. This evidence bore directly upon one of the material issues raised by the pleadings, to wit, the unsafe condition at that point and who created it, and was properly admitted. The fourth exception was taken to the action of the court in permitting the plaintiff to prove that it had paid the judgment recovered against it because of the death of Dr. Hill. The declaration alleged that the plaintiff had paid this judgment, and we see no possible reason why it should not have been permitted to prove that fact. In cases of this character it is always competent to prove the earning capacity of the deceased, as reflecting upon the question of damages, and the amount actually earned is always evidence. There was, therefore, no error in the ruling on the fifth exception permitting Mrs. Hill to be examined as to her husband's income forth his practice.

This brings us to the rulings on the prayers wherein the real questions in the case arise. The plaintiff offered four prayers. The court granted its first and second prayers, rejected its third, and granted its fourth prayer as modified. The defendant offered 28 prayers. The court refused its first, second, third, fourth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, twenty-second, twenty-sixth, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth prayers. The court modified and granted as modified the defendant's fifth, sixth, seventh, ninth, and twenty-first prayers, and granted as offered the seventeenth, eighteenth, nineteenth, and twentieth prayers. The legal propositions upon which the appellant relies for a reversal of the judgment are really presented in its first, second, third, fourth, tenth, eleventh, twenty-second, and twenty-seventh prayers.

The jury were instructed by the plaintiff's first prayer that if they found that the location of the public highway in Howard county as it approaches the county bridge, mentioned in the evidence, was altered by the defendant in making the alterations and improvements to its roadbed mentioned in the evidence, and that such change in the location of said highway rendered the approach to said bridge unsafe and dangerous for travel, and should further find that a certain Alexander Scott Hill, while approaching said bridge in 1906 and using due care on his part, was killed by reason of said unsafe condition of the approach to said bridge, and that the widow of the said Alexander Scott Hill brought suit in the name of the state of Maryland against the county commissioners for damages suffered by her by the death of the said Alexander Scott Hill, and recovered judgment, and that said judgment had been paid by the plaintiff, then the plaintiff was entitled to recover. By its second prayer the jury were told that if they found that the public highway mentioned in the evidence as it approached the bridge over the Patapsco river at Ilchester, in Howard county, was reasonably safe to all persons traveling thereon while using due care before the defendant relocated its road, and should further find that the defendant in making the changes and relocation of its tracks and railroad bet at Ilchester, as testified to by the witnesses, caused said highway to be so filled in with earth and stone as to make the approach to said bridge no longer reasonably safe for all persons traveling on said highway while using due care, and should find that the defendant negligently permitted the approach to said bridge on said highway to be unsafe and unguarded and unprotected, and should find that by reason of this unsafe, unguarded, and unprotected condition, a certain Alexander Scott Hill, while travelling on said highway and using due care, was killed as testified to in the evidence, and should further find that his widow, a certain Agnes Hill, brought suit against the plaintiff in the name of the state of Maryland for her use, and recovered a judgment against the plaintiff for damages suffered and sustained by her by reason of the death of her husband, and should further find that said judgment had been satisfied and paid by the plaintiff, then the plaintiff was entitled to recover, and the verdict of the jury must be for it, although the jury might find that the place where said accident occurred was outside of the traveled portion of the country road as it existed prior to the alterations thereof and made therein by the defendant. The plaintiff's fourth prayer is upon the measure of damages. By this prayer the court limited the amount of recovery to such damages as were sustained by Mrs. Hill as the direct consequence of the death of her husband, not exceeding, however, the amount paid by the plaintiff on account of the judgment against it offered in evidence and interest on such judgment to the date of payment. This being a suit for indemnity, and the defendant not having been notified of the suit in which the judgment was recovered and requested to come in and defend, and not having participated in that suit, the limitation placed by the court upon the extent of recovery was proper. The prayer was not seriously objected to by the appellant, nor do we see any reason why upon the facts it should not have been granted. It would certainly not have been proper to have permitted the plaintiff to have profited by the death of Dr. Hill.

The plaintiff's first and second prayers are identical with those approved in the former case, and were properly granted, unless the new evidence, to which we will presently allude, leads to a different conclusion of law.

The defendant by its first, second, third, and fourth prayers sought to withdraw the case from the jury, and in their support relies upon the additional evidence found in this record which it is claimed differentiates this from the former case and makes it the duty of the court to declare as a matter of law that the plaintiff cannot recover.

The defendant completed its work at Ilchester in 1903, and according to the evidence of the plaintiff created an unsafe and dangerous condition at the approach to the bridge across the Patapsco river, in consequence of which Dr. Hill lost his life on the 22nd of January, 1906. Its evidence tended to prove that the approach to this bridge at the place of the accident was safe before the defendant began its work, and that by reason of certain changes made by it at that point it rendered the place dangerous, and that it left it in an unsafe and dangerous condition. The new evidence introduced by the defendant tended to show that the plaintiff first created the dangerous place where Dr. Hill was killed, and that the changes made by the railroad company but slightly increased the existing danger. The jury was properly instructed as to the legal effect of this evidence, the truth of which was denied by the plaintiff, by the ninth prayer granted on behalf of the defendant. That prayer told the jury that they could not find for the plaintiff, unless they found that the Baltimore & Ohio Railroad Company, or its servants or agents, in making the changes in the approach to the county bridge in question, created a condition dangerous to the public travel to those using due care and caution, and should further find that the accident to Dr. Hill was caused by such dangerous condition so created, and that the burden was upon the plaintiff to show by a preponderance of evidence that the defendant or its agents or servants created...