County Com'rs of Dorchester County v. Wright

• Citation: 114 A. 573,138 Md. 577
• Decision Date: 27 June 1921
• Docket Number: 22.
• Parties: COUNTY COM'RS OF DORCHESTER COUNTY v. WRIGHT.
• Court: Maryland Court of Appeals

114 A. 573

138 Md. 577

COUNTY COM'RS OF DORCHESTER COUNTY v. WRIGHT.

No. 22.

Court of Appeals of Maryland

June 27, 1921

Appeal from Circuit Court, Wicomico County; Robert F. Duer and Joseph L. Bailey, Judges.

"To be officially reported."

Action by William E. Wright against the County Commissioners of Dorchester County. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, ADKINS, and OFFUTT, JJ.

V Calvin Trice, of Cambridge, and Frederick W. C. Webb, of Salisbury (Daniel P. Willis, of Cambridge, and Woodcock & Webb, of Salisbury, on the brief), for appellant.

J. Owen Knotts and Henry R. Lewis, both of Denton (Lewis & Knotts, of Denton, and F. Leonard Wailes, of Salisbury, on the brief) for appellee.

URNER J.

The appellee was one of the occupants of a Ford automobile, which fell through an open draw in a bridge maintained by the appellants over Cambridge creek in the city of Cambridge. For his personal injuries, thus occasioned, he recovered the judgment which is the basis of this appeal. The only bill of exceptions in the record is concerned with the rulings on the prayers.

The accident occurred at night. It was testified by the appellee who occupied a rear seat in the automobile, and by George Ricketts, the owner of the car, who was driving it at the time, that there were no lights then observable anywhere on the bridge, and no warnings of any kind were given as to the condition of the draw, and that they did not see the opening into which they fell. According to the testimony offered by the appellants the approaches to the draw were brightly illuminated by two electric arc lamps when the accident happened, and there were red signal lights displayed on the draw-bridge, indicating that it was open for the passage of vessels. In view of the conflict of the evidence as to whether the lights required for the protection of travelers on the bridge were in fact extinguished as the draw was being operated on the occasion referred to, the question of primary negligence could not properly have been withdrawn from the jury.

The most important question in the case is whether a verdict should have been directed for the appellants on the grounds of contributory negligence. If the appellee had been in the position of the driver of the automobile, it would seem clear that his own negligence had contributed to his misfortune. The car was driven forward on the bridge, at accelerating speed, in spite of the fact, to which Ricketts, the driver testified, that no signal lights were visible showing whether the draw was open or closed. The occupants of the automobile were familiar with the bridge and the system of lights by which the condition of the draw was intended to be revealed. If the draw was open, red lights were displayed to travelers on the bridge, and, if it was closed, the lights appeared green. As the automobile approached the draw it was moving, as Ricketts testified, at the rate of 4 or 5 miles an hour, and he had begun to increase its speed just before the car plunged into the creek. The headlights of the automobile should have enabled the driver to see some distance in advance, and if he had been as watchful and careful as the conditions demanded, he ought to have seen the open draw and stopped his car in time to avoid the accident. It was certainly not an act of ordinary prudence to proceed merely on the assumption that the draw was closed, if the customary signal lights were not there to assure him that the way was safe. But the lights were in elevated positions, 20 and 30 feet above the floor of the bridge, and the appellee was on the rear seat of the car, where his view was restricted by the top and curtains. Whether, being thus situated, his failure to anticipate the accident, and intervene to prevent it, was contributory negligence as a matter of law, is the question to be determined.

The negligence of the driver was not imputable to the appellee as the former was operating the car as its owner, and not as the appellee's agent or employee. For some days preceding...