Kent County Com'rs v. Pardee

• Decision Date: 11 June 1926
• Docket Number: 16.
• Citation: 134 A. 33,151 Md. 68
• Parties: COUNTY COM'RS OF KENT COUNTY v. PARDEE.
• Court: Maryland Court of Appeals

134 A. 33

151 Md. 68

COUNTY COM'RS OF KENT COUNTY v. PARDEE.

No. 16.

Court of Appeals of Maryland

June 11, 1926

Appeal from Circuit Court, Cecil County; Lewin W. Wickes and Thomas J. Keating, Judges.

"To be officially reported."

Suit by Laura Alice Pardee against the County Commissioners of Kent County. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Albert D. Mackey, of Elkton, and Herbert E. Perkins, of Chestertown (Clarence W. Perkins and Joseph Sherbow, both of Baltimore on the brief), for appellants.

L Wethered Barroll and James J. Lindsay, both of Baltimore (Omar D. Crothers and Joshua Clayton, both of Elkton, and John W. Barroll, of Baltimore, on the brief), for appellee.

WALSH J.

This suit was brought by Mrs. Laura Alice Pardee, the appellee against the county commissioners of Kent county, the appellants, to recover for injuries received by her on August 19, 1923, when the Ford automobile in which she was riding with her husband ran over the edge of a bridge on the road from St. James church to Worton in Kent county, and fell upside down into the stream below the bridge.

The testimony shows that on the afternoon of August 19, 1923, the appellee, her husband, and several of their children drove over the road and bridge in question to visit the appellee's brother, and they were returning about 8 o'clock in the evening to their own home over the same road when the accident complained of occurred. The road approaching the bridge on the return trip went down grade for some distance until it got to within about 35 feet of the bridge, at which point there was a puddle of water, and after passing this puddle there was a slight ascent to the edge of the bridge. This puddle was formed by water which flowed from a spring near the side of and above the road, and it accumulated in the road because the ditches on either side were choked up, thus permitting most of the water to flow into the road and down the wheel tracks to the depression near the end of the bridge. At the time of the accident this depression was covered with water for a distance of four or five feet, the maximum depth was six inches, and the water extended across the entire width of the road. It also appeared from the evidence of Mr. Taylor, the road engineer of Kent county, that the surface of the water was two inches below the level of the lower side of the road, so that the maximum depth of the depression or hole was really eight inches. The appellee's husband, who was driving the car, testified that in approaching the bridge the wheels of the car got into the ruts formed on either side of the road by the traffic and deepened to five or six inches by the water which flowed down them from the spring above mentioned; that he was unable to get the wheels out of these ruts, and so went right through the center of the puddle, and that as he did so the car received a bump or jolt which damaged the steering gear and placed the car beyond his control. He further testified that he was not going more than ten miles an hour when he reached the puddle; that after going through the puddle the car ran up on the bridge; that when he tried to steer it after it left the ruts and reached the bridge he found the steering mechanism would not work; that he immediately turned off his switch and reached for his emergency brake, but that before he could stop the car the front wheels turned to the left and the car plunged over the left side of the bridge and fell upside down into the stream below. It also appeared that there was no railing on the left side of the bridge, the one formerly there having rotted away.

At the conclusion of the testimony the learned court below granted the plaintiff's first and third prayers, and refused to grant the defendant's first, second, and sixth prayers, and its action in this regard is the basis of the only bill of exceptions in the case. The plaintiff's first prayer instructed the jury that in passing upon the facts in the case they were "to regard the county road engineer, Gilbert L. Taylor, as the agent of the county commissioners of Kent county." Ordinarily the court determines what facts are necessary to show agency, and the finding of those facts is left to the jury, but the question of the road engineer's agency in this case depends upon the construction of certain local statutes of Kent county, and this court determined in the case of Richardson v. County Com'rs Kent County, 120 Md. 153, 161, 87 A. 747, 749, that under the statutes then in force the road engineer, "with respect to liability for the injuries resulting from the bad condition of the public roads, should be regarded as the agent of the county." We know of no change in these statutes which would justify our modifying or overruling what was then decided on this point, and we accordingly find no error in the granting of the plaintiff's first prayer.

The plaintiff's third prayer is the usual damage prayer granted in personal injury cases. The defendant contended that some of the language used in this prayer indicated that the plaintiff had been permanently injured, and that there was no testimony to this effect offered, but this objection was not pressed at the argument, nor could it have been successfully pressed. In the first place such an objection should have been made the subject of a special exception, and no special exception appears to have been taken. Section 10, art. 5, Code; Stewart Taxi Service Co. v. Roy, 127 Md. 79, 95 A. 1057. And in the second place we do not think the prayer indicated the permanency of the plaintiff's injuries to any greater extent than was justified by the evidence.

The defendant's first prayer asked the court to instruct the jury "that under the pleadings and evidence in this case there is no evidence legally sufficient to entitle the plaintiff to recover." This court has repeatedly held such a prayer insufficient to raise the question of a variance between the pleadings and the proof, and, as the question of the legal sufficiency of the evidence in this case was raised by the defendant's second prayer, there was no error in rejecting its first prayer. Section 11, art. 5, Code; Askin v. Moulton, 149 Md. 140, 131 A. 82, 84; Day v. Weinstein, 148 Md. 104, 128 A. 897; Baltimore v. Terie, 147 Md. 332, 334, 128 A. 353; B. & O. R. R. v. Walsh, 142 Md. 237, 120 A. 715.

The defendant's second prayer was as follows:

"The defendant prays the court to instruct the jury 'that there is no evidence in this case legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant.' "

The obvious point raised by this prayer is whether, under all the evidence, the question of the defendant's negligence in maintaining the road and bridge in this case should have been submitted to the jury. The defendant mentions this point, but it was stated at the argument of the case that the defendant relied chiefly on the contributory negligence of the plaintiff, and most of its brief is devoted to a discussion of this alleged contributory negligence, and, as the defendant offered no prayer specifically raising the question of the plaintiff's contributory negligence, we assume that it considered the point sufficiently raised by its second prayer above quoted. Whether the prayer had this effect or not will be considered later, but on the first point raised by the prayer, namely, the sufficiency of the evidence to go to the jury on the question of the defendant's negligence in maintaining the road and bridge, we are clearly of the opinion that the evidence was sufficient. It was testified by various...