Knight v. City of Baltimore

• Decision Date: 01 July 1903
• Citation: 55 A. 388,97 Md. 647
• Parties: KNIGHT v. MAYOR, ETC., OF BALTIMORE.
• Court: Maryland Court of Appeals

55 A. 388

97 Md. 647

KNIGHT v. MAYOR, ETC., OF BALTIMORE.

Court of Appeals of Maryland

July 1, 1903

Appeal from Superior Court of Baltimore City; Charles E. Phelps Judge.

Action by William T. Knight against the mayor and city council of Baltimore. From a judgment for defendant, plaintiff appeals. Affirmed.

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

Carroll T. Bond, for appellant.

Albert C. Ritchie, for appellee.

PEARCE J.

This suit was brought by William T. Knight in the superior court of Baltimore city against the mayor and city council of Baltimore to recover for personal injuries sustained by him while driving a wagon or truck, heavily loaded, upon Eastern avenue, in said city, where it crosses President street. The declaration alleges that the highway or street at the point of the accident had been for a long time badly out of repair and in an unsafe and dangerous condition, and that while driving thereon, and using due care, the wheels of his wagon were caught in a hole in the street, and he was thrown from his seat into the street, receiving a bad fracture of his right arm, and permanently disabling him. At the close of the plaintiff's case, the defendant declined to offer any testimony and offered the following prayer: "The defendant prays the court to instruct the jury that it appears from the undisputed evidence in this case that the plaintiff, while driving his wagon on Eastern avenue, at its intersection with President street, at the time and place the injuries complained of are alleged to have been sustained, did not exercise reasonable care to avoid the accident, but by his own negligence contributed directly to the injuries whereof he complains, and that the verdict of the jury must therefore be for the defendant." The plaintiff offered three prayers. The first asked the court to instruct the jury that it was the duty of the defendant to keep its streets in such good repair as to afford free, safe, and easy passage over the same, and that if this duty was neglected, and the plaintiff was injured in consequence thereof while using due care, he was entitled to recover. The second was the usual prayer as to damages, and the third asked the court to instruct the jury that Eastern avenue and President street at the place where the accident occurred, are public streets of Baltimore city. This prayer was conceded, and the court granted the defendant's prayer, and rejected the plaintiff's first and second prayers. There can be no question that these last would have been correctly granted if the case had been one to be submitted to the jury, but they could not, of course, be granted, if the case was properly withdrawn from the jury. The only question, therefore, requiring our consideration, is the ruling upon the defendant's prayer, and this requires us to examine all the evidence.

The plaintiff was the principal witness, was examined at much length, and testified with great frankness. His evidence in chief was that he was 37 years old, a driver by occupation and in the employment of the Thomson Chemical Company. "That at the time of the accident he had upon his wagon eight barrels of soda, and that while driving east on Eastern avenue, after passing the railroad track on President street, which crosses Eastern avenue, one of the wheels dropped down into a hole, and threw him off from the seat of the wagon, which was quite high from the ground, into the street. That some one picked him up and set him on the sidewalk, washed and tied his head up, and that his injuries consisted of a cut on the head and a broken right arm. That he was driving at a slow dogtrot, and he could not drive too fast, because the street was in a very bad condition, and he had a big load on. That the hole was in the middle of the street, right alongside of the car track. That the wagon stopped still to pitch him off, and did pitch him off in the street, and, as soon as the wagon stopped, the horses went in the collar again and kept on. It stopped about a second, and the jar kind of jerked it back, and they kept on again. That he fell towards the horses' heads, and struck the street pretty hard on his head and arm." When asked whether he was familiar with the condition of this street, he replied that he went down it about two or three times a week; that he was never in that hole before, and never noticed that particular hole before, and that at the time of the accident an ice wagon and a barrel wagon were approaching him and met him, one on either side, about two feet distant; that the ice wagon had just passed him, and the barrel wagon was alongside of him. On cross-examination he said he drove over the very place of the accident two days before, but did not notice this hole, and did not know whether it was then there, though it looked like an old hole, and as if it had been there three of four months; that it was two or three inches from the track, six inches long, twelve inches wide, and six or seven inches deep; that his wagon was a big two-horse truck, but he could have stopped it in a second, or could have turned it aside quickly; that there was nothing ahead to obstruct his vision, and he had a perfectly clear view of the street; that the hole could be seen at a distance of a square or half a square, but that he did not see it until he struck it, and that he did not see it because he was not looking for it; that he had been talking with a companion on the wagon seat until he fell off, and that the hole was visible to any one going in the direction he was going, but that he was looking out for his team, and was not looking out for the hole. Three other persons who...