Birckhead v. Mayor and City Council of Baltimore

• Citation: 197 A. 615,174 Md. 32
• Decision Date: 08 March 1938
• Docket Number: 19.
• Parties: BIRCKHEAD v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

197 A. 615

174 Md. 32

BIRCKHEAD v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 19.

Court of Appeals of Maryland

March 8, 1938

Appeal from Court of Common Pleas of Baltimore City; Samuel K Dennis, Judge.

Action by Irma Birckhead against the Mayor and Council of the City of Baltimore, a municipal corporation, for injuries sustained by plaintiff as guest of the driver of an automobile which collided with large stones alleged to have been negligently placed on public driveway of municipality in its public park. Judgment for the defendant, and plaintiff appeals.

Affirmed.

Paul F. Due, of Baltimore (Due & Nickerson, of Baltimore, on the brief), for appellant.

Lawrence B. Fenneman and M. Henry Goldstone, Asst. City Sols., both of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SHEHAN, and JOHNSON, JJ.

PARKE Judge.

The action in this case is to recover damages of the Mayor and City Council of Baltimore, a municipal corporation, for injuries sustained by the plaintiff, a guest of the driver of an automobile, as a result of the collision of the automobile with large stones alleged to have been negligently placed on the edge of the west side of a public driveway of the municipality in its public park. A demurrer to the original declaration and one to an amended declaration were sustained, and a judgment for the defendant was entered. The appeal is taken to review the rulings of the court, and requires a particular statement of the allegations upon which the pleader depends to constitute a cause of action.

The accident happened in a municipal park of the defendant through which a metaled public way, known as Pimlico drive, extends from Mt. Royal terrace to Park Heights avenue, which are both public streets of the defendant without the boundaries of the park. Pimlico drive is largely used by motorists as a convenient link in heavy through travel to points within and without the municipality. On February 1, 1937, at about two o'clock on a foggy morning, the automobile in which the plaintiff was riding as guest had entered the park and was being driven by her host northward on the east side of Pimlico drive. Another automobile, which was traveling south on the east or wrong side of Pimlico drive, suddenly appeared in the lane of travel of the host's automobile, and, so confronted, the host, in order to avoid being struck by the other automobile, swerved his automobile to the west or left side of the drive, and, leaving the highway, the automobile in which the plaintiff was a guest struck the rocks with such force that the plaintiff was thrown violently forward in the automobile and there injured.

The sole negligence attributed to the defendant is placing permanently the line of rocks near the west margin of the highway at the scene of the accident. Approximately three hundred feet south of the collision, Pimlico drive is intersected by a public way called Gwynn Falls parkway. South of this intersection until the Pimlico drive and its outlet ends at the southern entrance of the park at Mount Royal terrace, a distance of from one-half to three-fourths of a mile, the thoroughfare is bounded on both sides by concrete curbs, about six inches high and wide, which are of the light concrete color and are more readily distinguished than the rocks. The cement curb does not extend north of the mentioned intersection. For the first hundred feet north of the intersection there are no rocks bounding along the western limit of Pimlico driveway, but beyond this distance and extending further than the place of the accident there are rocks on that side, but none at all to the east of the Pimlico driveway from the intersection with Gwynn Falls parkway north to the union with Park Heights avenue.

The roadway was curved at the place of the accident, and was level with the adjacent ground of the park. The improved roadbed was approximately twenty-five feet wide, with a shoulder from fifteen to eighteen inches wide and of the same color and level as the roadway. The rocks were of irregular sizes and shapes, with sharp and jagged edges, and ran from two feet to thirty inches in height, two to three feet in width and four to five feet in length. They are alleged to be a 'dark grayish brown color that blends so perfectly with the bed of said Pimlico Drive and with the adjoining turf in the month of February as to render them almost indistinguishable at night under the type and character of lights maintained by the defendant along said highway even under normal weather conditions.' It is further charged that the rocks were completely obscured, at the time of the accident, because of the fog. The rocks are stated to have been placed in a line outside of, and parallel to, the western limit of the western shoulder of the improved roadway. So, it was requisite for the plaintiff's automobile to leave the metaled surface of the road bed by crossing from the right to the left side of the road, and then to traverse the shoulder on the western limits of the highway before the automobile could come in contact with the rocks.

The first fact to be noted is that whether the driver of the automobile was, under the circumstances stated, guilty of negligence in the control of his automobile which would bar him from recovery is not a material consideration in the appeal at bar, because the plaintiff here is a guest, who is alleged to have been without fault, and any negligence of her host and driver is not imputed to her. Consequently, the single question is whether or not there was any breach of duty on the part of the municipality which was the proximate cause of the accident from which the plaintiff suffered her injury. Baltimore v. State, for Use of Cirtout, 146 Md. 440, 450, 126 A. 130; Kent County Com'rs v. Pardee, 151 Md. 68, 75, 76, 134 A. 33.

The declaration alleges no facts from which negligence appears either in the construction, care, or maintenance of the highway. There is no suggestion in the pleading that the roadway was not of sufficient width nor that there was any defect in its surface or in its state of repair nor that there was any object or condition within the limits of the highway (1) or so close to the traveled right of way, as would create a reasonable probability of an accident occurring to the traveler while on the highway. Baltimore v. Terio, 147 Md. 330, 334, 336, 128 A. 353; Phelps v. Howard County Com'rs, 117 Md. 175, 178, 82 A. 1058; Earp v. Phelps, 120 Md. 282, 87 A. 806; (1) Mayor and City Council of Baltimore v. Thompson, 171 Md. 460, 467, 189 A. 822; Meese v. Goodman, 167 Md. 658, 667-669, 176 A. 621, 98 A.L.R. 480. In the case at bar the complaint is not in connection with any thing or condition within the wrought, metaled surface of the highway and its shoulders, but is in regard to a line of rocks without the extreme limits of the highway. So, the plaintiff seeks to hold the defendant liable for an injury received beyond the limits of the highway. If the traveler goes outside of the bounds of the highway he cannot, as a general rule, recover of the municipality for injuries sustained as a result of a condition encountered beyond these limits. Blashfield, Cyclopedia of Automobile Law, vol. 3, § 11, p. 2167; Doherty v. Town of Ayer, 197 Mass. 241, 83 N.E. 677, 14 L.R.A.,N.S., 816, 125 Am.St.Rep. 355; Briglia v. City of St. Paul, 134 Minn. 97, 158 N.W. 794, L.R.A.1916F, 1216.

The street or highway may, however, be unsafe for travel because of the presence in close proximity to its boundaries of dangerous excavations, declivities embankments, deep water, or other perils. The dangers to travelers of such places when near and so connected with the traveled part as to render the highway not reasonably safe for travel cast upon the municipality the duty to provide suitable safeguards for the protection of the public in the use of the street or highway. The risk to the traveler must, however, be such that he, while in the use of reasonable care in passing along the street or highway in an ordinary manner, may probably be injured by being thrown or falling into the dangerous place, unless a railing, barrier, or other safeguard make the way itself safe and convenient. The obligation is to safeguard the traveler from a danger of an unusual character. The rule is set forth in Roth v. Highways Commission, 115 Md. 469, at pages 476, 477, 80 A. 1031, 1034: 'In 15 Am. &...