Mayor and City Council of Baltimore v. State for Use of Biggs

• Decision Date: 16 January 1918
• Docket Number: 83.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE, for Use of BIGGS et al.
• Court: Maryland Court of Appeals

103 A. 426

132 Md. 113

MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE, for Use of BIGGS et al.

No. 83.

Court of Appeals of Maryland

January 16, 1918

Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.

"To be officially reported."

Action by the State of Maryland, for the use of Daisy A. Biggs and others, against the Mayor and City Council of Baltimore. Judgment for plaintiffs and defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Benjamin H. McKindless, Asst. City Sol., and S. S. Field, City Sol both of Baltimore, for appellant.

Clifton S. Brown, of Baltimore (Augustin J. Quinn, of Baltimore, on the brief), for appellees.

THOMAS J.

Bush street, in Baltimore city, crosses Russell street, sometimes called the Annapolis road, at right angles, and extends to and ends at what is spoken of in the evidence as the northwest side of Russell street. There is a sewer under the bed of Bush street, which also crosses Russell street at right angles, and extends to the northwest side of Russell street, and there empties into Bush street dock. At the mouth of the sewer at the end of Bush street there was a stone wall, which ran parallel with Russell street, and the coping of which was about 40 feet long. There were two street car tracks on Russell street where it crossed the end of Bush street, and the coping of the wall, which ran along the northwest side of Russell street and at the end of Bush street was, according to the testimony of some of the witnesses only about 6 inches above the surface of Russell and Bush streets at their intersection or above the surface of the ground adjoining the coping. At the time of the accident which gave rise to this suit there was an arc light about 70 or 100 feet from the corner of Bush and Russell streets, or from the end of the coping, and another light between 150 and 200 feet further from the crossing.

On the night of February 27, 1915, Albert Biggs, while operating an automobile on Bush street where it crosses Russell street ran over the end of Bush street and into the Bush street dock. He died on the 11th of March following and this suit was brought for the use of his widow and children to recover damages occasioned by his death, which is alleged to have resulted from his being thrown into the dock, and to have been caused by the negligence of the mayor and city council of Baltimore in permitting Bush street where it adjoined Bush street dock to be and remain in an unsafe condition for public travel.

This is the second appeal in the case. At the first trial the lower court withdrew the case from the jury on the ground that there was no evidence legally sufficient to prove negligence on the part of the city, and on the further ground that it appeared that the deceased had been guilty of contributory negligence. This court reversed the judgment in favor of the defendant in 129 Md. 686, 99 A. 860, and awarded a new trial. Describing the scene of the accident, Judge Briscoe there said:

"At the foot of Bush street and on the sewer there was a stone wall, the coping of which was about 6 or 7 inches above the surface of the adjoining ground and adjacent to and alongside of the Annapolis road, and there was testimony that this coping, to one walking down Bush street at night, could not be seen 'until you got right on top of it.' While there were two are lights attached to poles, one across the road at Bush street and the Annapolis road, and the other about 150 or 175 feet distant to the west from the first light, there is a conflict in the testimony as to whether the arc lights there located furnished sufficient light and warning to enable travelers or strangers passing at night along Bush street to see that this street ended at the Annapolis road and Bush street dock. There was no light upon the stone wall, and no guard around or near the coping on the wall, and this coping was only about 6 or 7 inches above the surface of the ground."

In support of the rule that it is the duty of a municipality to keep its streets in a safe condition for public travel, Judge Briscoe quotes the prayer approved by this court in Mayor and City Council v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395:

"That it was the duty of the defendant to take proper precaution, by proper guards, signals, lights or other warnings, to warn persons of the impassable condition of the street, so as to prevent injuries to persons passing along said street, and if the jury further find that the defendant, and those employed by it in repairing and recurbing said street, did not use ordinary care in providing such precautions, and that the plaintiff in consequence of such neglect to provide such precautions was thrown from his hack while driving with ordinary care along said street, then the plaintiff is entitled to recover."

And he then quotes with approval the statement of the court in Mayor and City Council of Baltimore v. Maryland, 166 F. 641, 92 C. C. A. 335:

"Undoubtedly, a municipality is not required ordinarily to erect barriers, railings, or other construction to prevent persons traveling upon a highway from straying therefrom; but it does not follow that the obligation does not exist where the point is dangerous, either naturally, or because of the work being done in and about the highway at the particular time. Whether the excavation in this case was dangerous, or the railing thereto, or the warning given, were sufficient to protect persons from or warn them of such danger, were questions of fact, all to be determined by the jury upon consideration of the whole evidence."

During the second trial which resulted in a verdict and judgment in favor of the plaintiff for $10,000, the defendant reserved 29 exceptions to rulings of the court on the evidence and a further exception to the action of the court on the prayers.

The first 16 exceptions, except the twelfth exception, relate to the admissibility of three photographs of the scene of the accident. The accident occurred on the 27th of February, 1915, and the photographs were taken some time in April following. The evidence shows that between the date of the accident and the time the photographs were taken Bush street, and Russell street, where it crosses Bush street, had been paved, and one of the defendant's witnesses testified that some little grading had been done on Russell street at that point. But the photographer who took the photographs testified that they correctly represented the conditions existing at the time they were taken, and a number of the plaintiff's witnesses testified that they fairly represented the scene of the accident as it appeared on the 27th of February, except that the streets referred to were not then paved, but were dirt roads, or were paved with cobblestones which were then covered with dirt. The photographs were admitted in evidence over the objection of the defendant with leave to either of the parties to prove any changes they showed in the surface of the streets, and the court then called the jury's attention to the fact that the parties agreed that the streets at the time of the accident were not smooth streets as represented by the photographs, but "were cobblestones." It is said in 17 Cyc. 417:

"When, in an action for personal injuries or other action of tort, or in criminal prosecutions, it becomes material to know the location, surroundings, and condition of the premises upon which the accident, injury, or crime in controversy occurred, photographs of the locus in quo, if verified by proof that they are true representations, are competent evidence. But the value and admissibility of the photograph, as in other cases, depends upon the fact that it is a correct representation of the place in question, and that the condition existing when it was taken was an accurate reproduction of the condition existing when the accident, injury, or crime occurred."

While this rule has been followed in this state (Columbia, etc., R. Co. v. Huff, 105 Md. 34, 65 A. 625), this court has also recognized the principle that slight changes in the conditions, which do not destroy the substantial identity of the location, should not render the photographs inadmissible, and that the matter is one that should be left largely to the discretion of the trial court. In the case of Consol. Gas. Co. v. Smith, 109 Md. 186, 72 A. 651, the court said:

"As to whether a photograph is sufficiently verified, or is practically instructive, the question is a preliminary question for the court, and while there is some diversity of authority as to whether the determination of the court in this respect is open to review or not, we think the weight of authority is that this discretion is not the subject of exception, unless it is plainly exercised in an arbitrary manner. *** In all such cases, if there is evidence of changes in the condition or surroundings of the object since the accident, this may lead to the exclusion of the photograph, and should do so, where the substantial identity of the conditions has not been preserved."

In the case of Md. Elec. Ry. Co. v. Beasley, 117 Md. 270, 83 A. 157, there was an exception "to the admissibility of photographs taken some time after the accident and after a change of seasons," and in disposing of it Judge Pearce, speaking for this court, said:

"In the case before us certain trees which were referred to by the driver as obstructing the vision, and which were in leaf at the time of the accident in June, had been since trimmed, though only in the tops, and there had been a fall of snow when the photograph was taken. It is not possible to lay down a general rule as to what changes shall require an exclusion of photographic

...