Commissioners of Delmar v. Venables

• Decision Date: 07 April 1915
• Docket Number: 19.
• Citation: 94 A. 89,125 Md. 471
• Parties: COMMISSIONERS OF DELMAR v. VENABLES.
• Court: Maryland Court of Appeals

94 A. 89

125 Md. 471

COMMISSIONERS OF DELMAR v. VENABLES.

No. 19.

Court of Appeals of Maryland

April 7, 1915

Appeal from Circuit Court, Wicomico County; Henry L. D. Stanford Judge.

"To be officially reported."

Action by John S. Venables against the Commissioners of Delmar. From a judgment for plaintiff, defendant appeals. Affirmed.

F Leonard Wailes, of Salisbury (Ellegood, Freeny & Wailes, of Salisbury, on the brief), for appellant.

Elmer H. Walton and Alonzo L. Miles, both of Salisbury, for appellee.

PATTISON J.

The suit in this case was brought by the appellee against the appellant, a municipal corporation, to recover damages for personal injuries sustained by him resulting from its alleged negligence.

The appellee, with one Truitt, on the 22d day of November, 1913 was riding on a load of fodder upon Sixth street, one of the streets of the appellant corporation, when the right wheel of the cart upon which the fodder was loaded passed over a stump 6 or 7 inches above the level of the road and about 4 inches in diameter at its top, throwing the appellee and Truitt from the cart upon the sidewalk, inflicting upon the appellee the injuries complained of. The position of the appellee was upon the top of the fodder and about over the center of the load. The cart was drawn by one horse, which at the time was driven by the appellee.

Sixth street, or at least this portion of it, was opened about two years prior to the happening of the accident, and when opened the said stump was permitted to remain in the street. The street is about 20 feet in width, with a pavement 2 1/2 feet wide on the west side, but with no pavement on the east side. The stump was on the east side, in the traveled portion of the street, about 5 feet from the building line. At the time the street was opened the stump was in the center of a small mound or hill very little higher, if any, than the earth surrounding it, but the vehicles upon the street, in time, removed or wore away the earth, leaving the stump with an elevation of 6 or 7 inches above the surface of the street, and this had been its condition for a long while prior to the accident. The appellee himself saw it in this condition while traveling upon the street in April or May, 1913, but the evidence does not disclose that he afterwards saw it. Truitt had seen the stump before the accident, but just how long before he could not say. Sturgis testified that "he had seen it many times before this accident, and ran into it one day, and it liked to have thrown him off." He described the stump as being "6 or 7 inches high and a little over 4 inches across the top." Culver, another witness, testified that "the stump was there when the street was opened; it was a fruit tree stump that had been cultivated around and a bank thrown up around it; that he ran into it once, and maybe more." The appellee testified that he was driving along the best he could, looking for this stump, but, as he expressed it, "when you get upon a load of fodder you cannot see right down where the stump is"; to see it at all he had to see it at some little distance before he reached it. In describing the stump he said that "it was an apple tree stump the color of dirt, as near as he ever saw a stump, a hard stump to see, and that you had to be looking mighty good if you didn't have any load at all" to see it. Truitt, who was with him on the cart, testified that the plaintiff "was driving along with the lines to his horse in an ordinary gait, walking his horse, when the cart struck the stump." The appellee and Truitt are the only witnesses who testified as to how the accident happened, either on the part of the plaintiff or defendant.

The trial of the case resulted in a verdict for the plaintiff, upon which a judgment was entered; and it is from that judgment that this appeal is taken.

There are four exceptions to the rulings of the court. The first and third are to the rulings upon the admission of testimony, and the second and fourth are to the rulings upon the prayers.

At the conclusion of the plaintiff's testimony the defendant asked the court to instruct the jury that there was no legally sufficient evidence entitling the plaintiff to recover, and upon the court's refusal to grant it the defendant thereafter offered testimony on its own behalf upon the issues joined. This exception is not in this case. The taking of testimony by the defendant to sustain the issues on its part, after the refusal of the court to grant the said prayer, was a waiver of its right to have such ruling thereon reviewed upon appeal. Barabasz v. Kabat, 91 Md. 53, 46 A. 337; United Rys. Co. v. Deane, 93 Md. 624, 49 A. 923, 54 L. R. A. 942, 86 Am. St. Rep. 453; New York, etc., R. Co. v. Jones, 94 Md. 35, 50 A. 423; Knecht v. Mooney, 118 Md. 583, 85 A. 775. This prayer, however, was renewed at the conclusion of all the evidence in the case, and with it another prayer was offered by the defendant asking the court to take the case from the jury because of the alleged negligence of the plaintiff directly contributing to the injury. It is urgently insisted by the appellant that the court erred in its rulings upon these prayers, and it is upon such rulings that the appellant chiefly relies for a reversal of the judgment.

It cannot be successfully contended that there was no legally sufficient evidence to go to the jury tending to show negligence on the part of the defendant when we apply to the facts disclosed by the record the well-settled law of this state in relation to the legal sufficiency of evidence as laid down in the cases of McElderry v. Flannagan, 1 Har. & G. 308; Leopard v. Ches. & Ohio Canal Co., 1 Gill, 222; Jones v. Jones, 45 Md. 154; Baltimore Elevator Co. v. Neal, 65 Md. 459, 5 A. 338; Mallette v. British Assur. Co., 91 Md. 481, 46 A. 1005; Moyer v. Justis, 112 Md. 222, 76 A. 496, and other cases.

The defendant municipality opened this street about two years prior to the happening of the accident, leaving the said stump in the bed of the street, at that time partially relieved of its dangerous features by the dirt that was piled around it, but which was naturally to become more dangerous as the dirt wore away from it by the use of vehicles upon the street. The dangerous condition of the stump at the time of the accident had existed for at least six months prior thereto, how much longer the record does not disclose, and its condition was known to those who traveled upon such highway, as disclosed by the evidence of the above-named witnesses. The law is well settled that the municipality cannot be made liable in any case unless it be shown that it had actual or constructive notice of the bad condition of the street. By constructive notice is meant such notice as the law imputes in the circumstances of the case. It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see that they are kept in a reasonably safe condition for travel. They cannot fold their arms and shut their eyes and say they have no notice. After a street has been out of repair so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality, through its agents charged with that duty, to learn of its existence and repair it, the law imputes to it notice and charges it with negligence. Todd v. City of Troy, 61 N.Y. 509; Keen v. Havre de Grace, 93 Md. 39, 48 A. 444; Miller v. United Ry. & Elec. Co., 108 Md. 95, 69 A. 636, 17 L. R. A. (N. S.) 978.

In this case the officers of the defendant corporation knew of the stump in the street at the time the street was opened, and they permitted it to remain there, subject to the natural changes in its physical condition produced by vehicles passing over it in the use of the street, for two years, and until the accident occurred. In the exercise of an active vigilance in keeping the street in a reasonably safe condition for public travel, the officers of the municipal corporation were expected to inspect the streets from time to time, and to do what work was found necessary to keep them in such reasonably safe condition. And it is difficult for us to understand, if this was done, how such officers of the corporation, with the knowledge of the existence of the stump in the street, could have failed, in such length of time, to have learned of its dangerous condition here complained of.

It is true this court has said (Keen v. Havre de Grace, supra) that, if the defect be of such a character as not to be readily observable, express notice to the municipality must be shown. In this case there is evidence, the evidence of the plaintiff, that it was a hard stump to see; yet it...