Garrett County Com'rs v. Blackburn
| Decision Date | 28 February 1907 |
| Citation | 66 A. 31,105 Md. 226 |
| Parties | GARRETT COUNTY COM'RS v. BLACKBURN. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.
Action by Mary E. Blackburn against the county commissioners of Garrett county. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BRISCOE, PEARCE, SCHMUCKER, and ROGERS, JJ.
Albert A. Doub, for appellant.
Gilmor S. Hamill and R. T. Semmes, for appellee.
This suit was originally brought in the circuit court for Garrett county, where a trial was had, but the jury failed to agree upon a verdict, and were discharged. It was subsequently removed to the circuit court for Allegany county, where it was again tried, and a verdict and judgment were rendered for the plaintiff. The defendant has appealed.
The suit was brought by Mary E. Blackburn, widow, against the county commissioners of Garrett county to recover damages for personal injuries sustained by the plaintiff by reason of the unsafe condition of one of the public roads of Garrett county, and the approach to a bridge across the Potomac river on the Maryland side to the West Virginia shore. The declaration, in substance, states that on or about the 3d day of September, 1904, the county commissioners of Garrett county, disregarding their duties and obligations imposed by law, did negligently and carelessly allow and permit one of the bridges, the road and approach thereto, under their charge in Garrett county, upon one of the public roads of the county, to wit, the road leading from the town of Kitzmillersville, Garrett county, over the Potomac river, to the village of Blaine, W. Va., at the west end of the bridge on the Garrett county side, to be out of repair, and to be wrongly built in its approach at the end of the bridge, and to remain unamended, in an unsafe and dangerous condition and in failing to provide guard rails to be put up and along the walls leading up to the bridge; that on the day herein mentioned the plaintiff, while passing and walking up the road and approach to the bridge on the Garrett county side and intending to go over the bridge to a store on the West Virginia side, for the purpose of buying provisions for her home, by reason of the careless, neglectful, and improper manner in which the approach to the bridge was built, and in not having any guard rails to protect persons in passing over the approach to the bridge, and that while the plaintiff was exercising due, proper care and caution she stepped upon a stone, which caused her to fall over the approach to the bridge a distance of 8 feet, striking her body on a pile of loose stone at the bottom of the river, breaking her ankles and the bones of her legs, and receiving other serious injuries from which she cannot recover. It further alleges that the approach to the bridge on the Maryland side was so defective and badly out of repair, and so unsafe and dangerous by reason of the negligence of the county commissioners, and especially in not providing guard rails along and on the side of the approach to the bridge, as to have caused the injury and damage sustained by her. The defendant demurred to the declaration, but the demurrer was overruled. As the ruling of the court upon the demurrer presents the same questions as are raised on the prayers we will consider them together.
The principal questions in the case arise upon the prayers, and relate to the alleged negligence of the defendant and to the contributory negligence of the plaintiff. At the trial of the case the defendant reserved two exceptions. The first to the rejection of the defendant's prayer offered at the close of the plaintiff's testimony asking the court to withdraw the case from the jury, and the second includes the rulings on the prayers offered at the close of the case; to wit, in granting the plaintiff's first and second prayers, and in rejecting defendant's second, third, seventh, eighth, and tenth prayers. There was also an exception to the ruling of the court in overruling defendant's special exception to plaintiff's first prayer. As to the defendant's prayer offered at the close of the plaintiff's case and its second and third prayers at the close of the whole case asking the court to withdraw the case from the jury, upon the ground that the evidence was legally insufficient to entitle the plaintiff to recover, it is sufficient to say that there was abundant testimony as to the negligence of the defendant, even if it can be regarded as conflicting, to authorize the court in rejecting these prayers.
The main contention in the case raised by these prayers is the want of evidence to show that the bridge was built by Garrett county, or belonged to it or was accepted or under its control, and that it was the duty of the county commissioners of Garrett county to keep it in repair. A complete answer to the contention here made is found in the fact that according to the uncontradicted evidence the accident did not occur upon the bridge, but in the public road as the plaintiff approached the bridge, and within a few feet of the bridge proper. The approach to the bridge was about 20 feet long and led in an angular shape to the bridge proper. The witness Junkins who had lived at Kitzmillersville about 9 years, and who had been road supervisor of Garrett county for 5 or 6 years, testified as follows: ...
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