Maenner v. Carroll

• Decision Date: 02 March 1877
• Citation: 46 Md. 193
• Parties: J. H. HENRY MAENNER v. JAMES CARROLL of CHARLES, and others.
• Court: Maryland Court of Appeals

46 Md. 193

J. H. HENRY MAENNER v. JAMES CARROLL of CHARLES, and others.

Court of Appeals of Maryland

March 2, 1877

APPEAL from the Superior Court of Baltimore City.

The case is sufficiently stated in the opinion of the Court.

First Exception.--After the testimony had closed the plaintiff offered the following thirteen prayers.

1. If the jury shall find from the evidence, that the defendants were, on the 14th day of May, 1875, and for a long time theretofore had been, the owners of the lot or tract of land mentioned in the -- counts of the declaration in this cause and shall further find that there was over and across said lot or parcel of land, a certain roadway leading from Ramsey and Fulton streets to Baltimore and Ohio Railroad, at a point at or near the Mount Clare station, or to the Washington road, which had been used by the public a period of more than twenty years prior to May 14th, 1874, under a claim of right to use the same, and that said user of said roadway had been generally peaceable, uninterrupted and adverse during the whole of said period, and shall further find that the defendants cut, or caused to be cut, over or across said roadway, a deep trench or excavation, and left the same in an unprotected and unguarded condition, without any warning or notice to the public of danger in passing over said roadway and shall further find that the plaintiff, on the night of the 14th of May, 1874, while passing over said roadway and exercising ordinary care, fell into said trench or excavation and was injured thereby, then the plaintiff is entitled to recover in this action.

2. If the jury shall believe from the evidence, that the defendants were, on the 14th day of May, 1874, and for a long time theretofore had been, the owners of the lot or tract of land mentioned in the--count of the declaration in this cause. And shall further find that there was a roadway across said lot or parcel of ground, which had been used by the public generally for a long time, and that the defendants were aware of such user, acquiesced in the same, and that on the line of said roadway there was a bridge over a depression in the same road, for the purpose of allowing foot passengers, persons on horseback and vehicles to pass over said depression, and that said roadway passed over a railroad track, and when it crossed said railroad track a space was left open between the cars, wide enough and for the purpose of allowing all persons and vehicles desiring to pass over the same, to cross said railroad track, and further that there was at said place of crossing said railroad track, (if they shall find there was such a place,) a notice put up, warning such persons to "Beware of Locomotives," and that a flagman was placed at such crossing, (if there was one,) to warn all such persons against danger in crossing said railroad track, then they are at liberty to find a dedication of the said roadway by the defendants as a public highway, and shall further find that the defendants cut, or caused to be cut, over said lot and across said roadway, a deep trench or excavation dangerous and liable to injure persons desiring to pass and repass over said roadway. And shall find further that the plaintiff, on the night of the 14th of May, 1874, while passing over said roadway, without warning, or knowledge, or notice of said excavation, and without any guard or protection to keep persons passing as aforesaid over said roadway, from falling into the same, while in the exercise of due care, fell into said excavation and was injured thereby, then the plaintiff is entitled to recover in this action, even if they should find that said excavation was cut across said roadway by an independent contractor, provided they further find that said contractor so cut the same across said roadway, under a contract with the defendants, and that in so cutting it, he did no act in contravention of the terms of the said contract.

3. If the jury believe from the evidence, that the defendants were, on the 14th of May, 1874, and for a long time theretofore had been, the owners of the lot or parcel of ground, mentioned in the different counts in the declaration in this cause, and shall find that there was over and across said lot a roadway, which had been in general use by the public for a long period of time, with the acquiescence of defendants, and that said roadway was the usual and only safe approach on the north side to the Western Schuetzen Park, a place of public entertainment, and shall further find that the defendants cut, or caused to be cut, on said lot and across said roadway, a deep excavation or trench, and left the same open and unenclosed, without warning or notice to the public of its dangerous character, and further that the plaintiff, on the night of the 14th of May, 1874, while passing over said roadway, and while ignorant of said excavation, and in the exercise of ordinary care, fell into said excavation or trench and was injured, then the plaintiff is entitled to recover in this action.

4. If the jury believe from the evidence, that the defendants were, on the 14th of May, 1874, the owners of the lot or parcel of ground mentioned in the different counts of the declaration in this cause, and that there was running across said lot, from the south end of Fulton street in Baltimore City, a roadway in general use by the public, and which had been in such general use for more than twenty years, leading up to a house which had been used for a long time as a place of public entertainment, and that said road was the regular and only safe approach to said house, for all persons coming from the direction of Fulton street, and shall further find that the defendants, or an independent contractor employed by them for that purpose, cut over said lot and across said roadway a deep trench or excavation, thereby rendering said roadway dangerous and impassable to those desiring to pass over the same, and shall further find that the plaintiff, while passing over said roadway, exercising ordinary care, and in returning from said house, to which he had been on business, or as member of the club occupying said house, if they find he had been to said house on business, or as such member of a club occupying said house, when returning therefrom, without warning, notice or protection of any kind against accidents, fell into said excavation, and was injured thereby, then the plaintiff is entitled to recover in this cause.

5. If the jury believe the matters and things set forth in the first prayer, and shall further find that the excavation spoken of had been cut across the road or pathway in said prayer specified, for two or three weeks previously, and that the said excavation was dangerous, and likely to injure those persons desiring to pass and repass over the same, and that the defendant took no pains to guard or protect the same, so as to prevent injury to those likely to pass and repass over the same, and that the plaintiff while passing over said road, without warning or notice, and while using due care, fell into said excavation and was injured, then the plaintiff is entitled to recover, whether said excavation was made by an independent contractor, or by the defendants themselves.

6. If the jury shall believe from the evidence in the cause, that the defendants were, on the 14th day of May, 1874, and for a long time theretofore had been, the owners of the lot or parcel of ground mentioned in the -- count of the declaration in this cause, and shall further find that there was a regular fixed roadway or path over and across said lot or parcel of ground, and that the said road had been dedicated to public use; and if they shall further find that the defendants dug, or caused to be dug over said lot and across said highway, a deep trench or excavation, dangerous to persons passing over the same, and that the plaintiff, on the night of the 14th of May, 1874, while passing over said highway, without any notice or warning or guard to protect persons passing over the same, and while exercising ordinary care, fell into said trench or excavation, and was injured, then the plaintiff is entitled to recover, regardless of the question of whether said roadway was across an inclosed lot or not.

7. If the jury believe from the evidence, that the defendants were the owners of the tract, or parcel of land mentioned in the ninth count of the declaration in this cause, and if they further believe that over and across the said lot or tract of land all persons desiring so to do were permitted, without hindrance from the defendants, or any of them, to pass and repass at pleasure, upon a certain pathway or road, and that all such persons were, for a long time, in the habit of passing and repassing with safety over the same, on foot, on horseback, or in vehicles of different kinds, with the acquiescence of the defendants, and shall further find that defendants, with notice of the fact that persons were likely to cross and recross the same, in and upon the path or road leading across the same, between Mount and Fulton streets and without any effort to warn such persons of danger in so crossing, and without taking any measure to guard against accident to such persons so crossing and recrossing the same, did cut a deep trench or excavation over said parcel or tract of land, and across said pathway or road, rendering the crossing of said lot or parcel of land in the usual place or places of crossing the same, dangerous to persons likely to cross over said lot or parcel of ground, and likely to approach said trench or excavation, and shall further find that the defendants did not forbid persons from passing and repassing across said lot or parcel of ground; and if they shall further find that the...