City of Baltimore v. Lobe

• Decision Date: 09 January 1900
• Citation: 45 A. 192,90 Md. 310
• Parties: MAYOR, ETC., OF BALTIMORE v. LOBE.
• Court: Maryland Court of Appeals

45 A. 192

90 Md. 310

MAYOR, ETC., OF BALTIMORE v. LOBE.

Court of Appeals of Maryland

January 9, 1900

Appeal from superior court of Baltimore city; Albert Ritchie, Judge.

Action by Philip Lobe against the mayor and city council of Baltimore. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD BRISCOE, and SCHMUCKER, JJ.

J. V L. Findlay, for appellant. William Cotton and Marcus Kaufman for appellee.

PAGE J.

This suit was brought by the appellee to recover damages for injuries to him while driving along Wolfe street, near Pratt in the city of Baltimore, caused, it is alleged, by the negligence of the city in not maintaining that street in proper repair. At the point where the accident occurred, the street had been dug up for the purpose of laying water mains; and it is charged that the trench made, though filled to the surface, had not been properly repaired, so that, when the plaintiff attempted to drive over it, his horse sank in the soft earth, and, becoming frightened, ran away. The plaintiff was thrown from the vehicle, and injured, at or near the place where the horse started; but his servant, one Anderson, who was with him, remained in the carriage until "the horse reached the block below, where the buggy overturned," and he was thrown out. After the plaintiff was thrown from the carriage, the horse turned into Pratt street, so that the point where the servant, Anderson, came to the pavement was on that street a block below Wolfe. Both Lobe and Anderson then went or were taken to Baker's drug store, "on the block below the scene of the accident." Officer Gordon at the time of the accident was on the northwest corner of Lombard and Wolfe streets. He testifies that "a party came to him, and informed him there was an accident on Pratt street; that he immediately went there, and seen a crowd in front of Baker's drug store, and that he went in, and Mr. Lobe was sitting in a chair, and Mr. Baker was fixing his head up,--bandaging it up." The officer further testifies that he saw the young man Anderson with Mr. Lobe, and asked the former how it happened. On objection being then interposed, the court asked the counsel for the city if he wanted "to contradict any statement of the young man." The counsel then stated that it was not offered for the purpose of contradicting the witness, but as "part of the case,"--as "part of the res gestae." The court allowed the witness to state that the young man had made "admissions" to him as to how the accident occurred, but declined to permit the officer to give what the young man said. This is the basis of the defendant's first exception.

It is claimed the court committed error in so ruling, because the statement of the young man to the officer, as to how the accident occurred, was made so near to the time of the happening, and sprang so spontaneously out of the incident itself, that any idea of deliberate design in making it was impossible, and that, therefore, it was admissible, as being contemporaneous with the main fact, and a part of the res gestae. This court has more than once stated the rule applicable to a case of this kind. Handy v. Johnson, 5 Md. 450; Dietrich v. Railway Co., 58 Md. 347; Franklin Bank v. Pennsylvania, D. & M. Steam Nav Co., 11 Gill & J. 28. The latest case where the court has had occasion to further consider the matter is that of Wright v. State, 88 Md. 706, 41 A. 1060. It would be profitless to examine separately all these cases, as well as the cases from other courts. They do not substantially differ in their statements of the rule. All agree that, to make the declaration a part of the res gestae, it must be so connected with the transaction as to be reasonably a part of it; it must not be the result of premeditation or design, but the "immediate...