City of Baltimore v. State of Maryland

• Decision Date: 05 November 1908
• Docket Number: 811.
• Citation: 166 F. 641
• Parties: MAYOR, ETC., OF BALTIMORE v. STATE OF MARYLAND, to Use of HUTCHISON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

166 F. 641

MAYOR, ETC., OF BALTIMORE v. STATE OF MARYLAND, to Use of HUTCHISON et al.

No. 811.

United States Court of Appeals, Fourth Circuit.

November 5, 1908

This is an action at law brought by the state of Maryland, to the use of Frances C. Hutchison, widow of John C. Hutchison deceased, and his four infant children, Bessie Louise Hutchison, Catherine Hutchison, George Hutchison, and Lois Hutchison, against the mayor and city council of Baltimore, Md., for damages sustained by the equitable plaintiff as the result of the death of said John C. Hutchison in an accident caused by the alleged negligence of the defendant in leaving unguarded a portion of Merryman's lane, a public highway of the city, at or near the Stony Run embankment, while constructing a bridge.

The plaintiff's case, in effect, is that at the time of the occurrence the city was engaged in the construction of a large stone or concrete abutment over the tracks of the Maryland & Pennsylvania Railroad, on Merryman's lane, a public highway in Baltimore city, and was engaged in other similar work of construction and repair on the line of Merryman's lane, near said embankment, and in the progress of the work the city removed the earth adjacent to the south side of Merryman's lane, leaving a steep embankment or declivity extending along the south side of the roadway for several hundred feet, at or near the point at which the work was proceeding; that it was the duty of the city to protect the said roadway at the point overlooking the embankment, so as to protect and safeguard the public from accident while traveling along the highway; that the city negligently and carelessly failed to perform its duty in the premises, and left the roadway insufficiently protected; that in consequence said John C. Hutchison, deceased, a citizen of the state of Pennsylvania, a passenger in an automobile owned and driven by one Frank X. Hooper, lawfully and with due care proceeding westwardly along said roadway, known as 'Merryman's Lane,' at or about 8 o'clock p.m on October 1, 1907, the automobile (containing said Hutchison and Hooper) was precipitated and thrown over the embankment whereby Hutchison sustained injuries resulting in his death in a few moments after the accident; and that the accident was wholly caused by the acts and negligence of said city, without any negligence on the part of Hutchison, or on the part of Hooper, directly thereunto contributing.

The defendant pleaded not guilty; issue was joined, and trial had resulting in a verdict in favor of the plaintiff for the sum of $8,500, duly apportioned, pursuant to the laws of Maryland, among the widow and children by the jury.

Upon this verdict judgment was entered in favor of the plaintiff, and the mayor and city council of the city of Baltimore sued out this writ of error.

The assignments of error all relate to the giving of certain instructions offered in behalf of the plaintiff, and the refusal to give certain instructions offered by the defendant by the trial court, which instructions so given and rejected will be set out in full herein, with a view of understanding them as a whole. They are as follows:

'First. That the Circuit Court of the United States in and for the District of Maryland erred in granting the prayers offered by the plaintiffs, in the above-entitled cause, as follows:

'(1) It being admitted that Merryman's lane at the time of the happening of the accident mentioned in the evidence was a highway of Baltimore city, the jury are instructed that it was the duty of the defendant to keep the said highway reasonably safe for public travel by day and by night, and if they find that Merryman's lane at the time and place at which the said accident occurred was not reasonably safe for night travel by reason of the excavation adjacent thereto, then it was the duty of the defendant to exercise by its agents and servants reasonable care and skill to provide safeguards sufficient to warn the traveling public of danger, and to protect them against it; and if the jury find that the defendant did not so exercise the same at the time and place aforesaid, but then and there omitted to provide such guards, lights, or barriers, or such other safeguards as would be ordinarily and reasonably sufficient to warn and protect persons using the highway at night exercising reasonable care and prudence in the case, and further find that in consequence thereof John C. Hutchison was killed while properly using the said highway at night, and exercising reasonable care, then the verdict of the jury must be for the plaintiff.

'(2) It being admitted that the excavation adjacent to the public highway of Baltimore city, known as 'Merryman's Lane,' mentioned in evidence, was made by the defendant, the jury are instructed that it was the defendant's

duty to exercise such care and skill as would have been exercised under all the circumstances by an ordinarily prudent person to protect persons using the highway against accident by day or by night by reason of the said excavation; and if the jury find that at the time and place of the accident of October 1, 1907, the defendant did not exercise such care and skill, but omitted to provide such lights, barriers, or other safeguards as would be ordinarily and reasonably sufficient to warn and protect persons using the said highway at night from accident by reason of the said excavation, and that in consequence thereof the said Hutchison lost his life while properly using the said highway, and exercising such care as an ordinarily prudent person would have exercised under the circumstances, then the verdict of the jury should be for the plaintiff.

'(3) The jury are instructed that although they may find that the employes of the defendant placed certain red lamps in Merryman's lane at or near the Stony Run embankment, yet if they find that the said red lamps were so arranged as to deceive a person of ordinary prudence and intelligence and to cause him to mistake the true course and boundary of the highway, and shall further find that the deceptive arrangement of the said red lamps was due to the failure on the part of the defendant's employes to exercise that degree of care and skill in the premises which an ordinarily discreet and prudent person would have used, and if they also find that the said accident mentioned in the testimony was directly caused by such deceptive arrangement of said lamps, then the verdict of the jury should be for the plaintiff, unless the jury further find that John C. Hutchison was himself guilty of negligence directly contributing to the happening of the accident.

'(4) If the jury shall find the acts stated in the plaintiff's first prayer, and shall further find that John C. Hutchison was at the time of the accident resulting in his death a passenger and invited guest in an automobile owned and then driven by one Frank X. Hooper, and that the said Hutchison was not driving or participating in the driving or management thereof, then, even though the jury may find that the said Hooper was personally guilty of negligence in the management and control of the said automobile contributing to the accident, yet his negligence cannot be imputed to the said Hutchison, and forms no bar to the plaintiff's right of recovery in this case; provided the jury shall find that the said Hutchison was not himself guilty of negligence contributing to the happening of the accident resulting in his death, and provided the jury shall find that the accident was in consequence of the failure of the defendant to use ordinary and reasonable care to insure the safety of ordinary travel on said highway in its then condition.

'(5) The jury are instructed that the expression 'reasonable care and skill' or reasonable care,' as used in the plaintiff's first prayer, means that degree of care, caution, and skill which under all the circumstances of the case might be reasonably expected of ordinarily prudent persons in the situation of the respective parties at the time of the accident mentioned in the evidence.

'(6) If the jury shall find for the plaintiff they are instructed that in assessing the damages they may estimate the reasonable probability of the duration of the life of the deceased, and give to the equitable plaintiffs such pecuniary damages as the jury may find they have respectively suffered or will suffer as the direct consequence of the death of said deceased, and as the jury may find reasonable under the circumstances; that for his children the prospective damages may be estimated to their attainment respectively of the age of 21 years, and for his widow to the end of the probable duration of the joint lives of the deceased and herself.

'Second. That the Circuit Court of the United States in and for the District of Maryland erred in rejecting the prayers offered by the defendant in the above-entitled cause, as follows:

'(1) The jury are instructed that the plaintiffs have offered no evidence legally sufficient to entitle them to recover; that therefore, their verdict must be for the defendant.

'(2) The jury are instructed that the defendant is under no legal obligation to erect barriers, railings, or other structures in order to prevent persons traveling along its highway from straying therefrom.

'(3) The jury are instructed that the defendant was not bound to erect both red lights and barriers to warn persons of any particular danger.

'Third. That, therefore, the said court erred in rendering judgment against the said defendant in said cause.'

Edgar Allan Poe and Sylvan H. Lauchheimer (W. Cabell Bruce, on the briefs), for plaintiff in error.

John B. Deming and George Whitelock, for defendants in error.

Before PRITCHARD, Circuit Judge, and WADDILL...