Mayor and Council of City of Cumberland v. Turney

• Decision Date: 29 November 1939
• Docket Number: 44.
• Citation: 9 A.2d 561,177 Md. 297
• Parties: MAYOR AND CITY COUNCIL OF CUMBERLAND v. TURNEY.
• Court: Maryland Court of Appeals

9 A.2d 561

177 Md. 297

MAYOR AND CITY COUNCIL OF CUMBERLAND v. TURNEY.

No. 44.

Court of Appeals of Maryland

November 29, 1939

Appeal from Circuit Court, Allegany County; Frank G. Wagaman, Judge.

Action by Milton Turney, an infant, by his father and next friend Oscar Turney, against the Mayor and City Council of Cumberland, for injuries sustained in an automobile accident. From a judgment for the plaintiff, defendant appeals.

Reversed without new trial.

Charles Z. Heskett and Harry I. Stegmaier, both of Cumberland, for appellant.

Lewis M. Wilson, of Cumberland, for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

OFFUTT Judge.

This appeal is from a judgment for the plaintiff in an action brought by Milton Turney by his father and next friend against the Mayor and City Council of Cumberland to recover damages for injuries received in an automobile accident which occurred on November 6th, 1938 on Washington Street in that city.

There was in the case evidence tending to prove these facts: Washington Street is a public highway of the city of Cumberland, running in a general easterly and westerly direction. It begins at Greene street and runs west at varying grades over Fechtig's Hill. In its course it intersects Semmes Avenue near the 700 block and from that intersection continues west over Washington Street Hill. Running nothwest from that intersection beginning at about 120 feet therefrom its direction changes abruptly from northwest to southwest in a curve subtending an angle of 57 degrees 45 minutes on a radius of 78.8 feet. Proceeding west from Semmes Avenue and through the curve the grade ascends at an angle of 9 degrees following the natural contour of the land.

The width of the street varies, east from a point near the scene of the accident it is 60 feet, west of that point it is 50 feet, but the width of the driveway is uniformly 30 feet so that the difference in width is in the sidewalks, which are laid out with grass plot and are paved and guttered.

That part of it under consideration here was first improved under an Ordinance of the Mayor and City Council of Cumberland passed in 1916 which provides 'That said part of said Washington Street shall be paved in such manner and under such principle, and with such kind and quality of paving material, and with such preparation as to grade of the street and materials for the bed of the same as the Commissioner of Streets and Public Property and the City Engineer may elect.' The driveway was originally paved with concrete but under an Ordinance of 1935 it was resurfaced with an asphalt concrete referred to in the evidence as 'blacktop'.

The elevation of the crown of the road above the edges at the curb varies from 6 or 7 to 9 or 10 inches so that the roadway slopes laterally from the center to the sides in the ratio of from one-half to two-thirds of an inch to the foot.

About 200 feet east of Semmes Avenue there was a 250 candle power electric light, and from that point west for about 700 feet the center of the roadway was marked by a 6-inch yellow line which for a short distance on either side of the curve was wavy or undulating. About 60 feet west of the light the word 'Slo' is painted on the surface of the road in letters 9 feet high, about 60 feet west of that sign on the north side of the road there is a sign bearing the legend 'Slow-Danger', the word 'Slow in red reflector letters on a black background and the word Danger in 3 1/2 inch black letters on a white background, at Semmes Avenue and also at a point west of that and about 50 feet east of the curve there are other 'Slo' signs similar to the first painted on the road, and at the apex of the curve there is a roadside sign on which appears the word 'Slow' in crystal reflector letters 6 1/2 inches high on a black background, and at that point too there is a 250 candle power electric light. On the north side of the street opposite the west side of the curve are two brick houses separated by a garage, one occupied by Robert Yancey, designated as 711 Washington Street, the other just east of that and designated as 709 Washington Street is occupied by Clarence Lippel. About 30 feet west of Yancey's house a pole stood at the edge of the north curb.

On the night of the accident Milton Turney, 19 years old, and employed as an Assistant Mail Messenger, left his father's home in Oakland, where he lived, in a friend's automobile, to accompany the friend, Stanley Stark, on a visit to the latter's aunt who lived in Cumberland.

They left Oakland at 12 or 12:30 o'clock at night and after driving rather aimlessly about arrived at Cumberland at about 3 o'clock in the morning and went to the place where the aunt had formerly lived but found that she had moved, and then drove about the city in a somewhat desultory search for her home, and at about 5:30 o'clock in the morning were driving west on Washington Street at the 700 block. At that time it was quite dark and the street lights were burning.

In passing the curve the automobile skidded or side slipped and crashed into the pole west of the Yancey home. As a result of the collision the car was wrecked and Turney and Stark severely injured.

Stark, who was driving the car, said that at the time of the accident he was driving very slowly on the extreme right side of the road right next to the curb, that he did see one small sign on which was the word 'Slo', but he saw no other signs, except the wavy line in the middle of the road. When asked to tell how the accident occurred, he said: 'Well, we came suddenly on the curve and turned sharp to the left; and the car--something pulled the car strongly to the right, and it ran up over the curb, and the wheels were up over the curb on the right side and in between the walk and the curb, and crashed into the telephone pole. Ran right along the side of the curb, right before we got to the pole * * *.'

Turney said that just prior to the accident he was 'just sitting there talking to Stanley' and that 'as we were approaching this curve, the car, after it got on the curve, it seemed that there was a slant there, and somehow or other, this slant seemed to--don't know--take the car and push it up on the curb. That is the way it was to me. Pushed it up on the curb and just deliberately pushed it on into that telephone pole'. He saw the sign which had 'Slo-Danger' on it and 'that snake in the middle of the road' which got him 'confused', but saw no other signs. The car was apparently in high gear at the time of the accident.

Alec G. Shaner, a defendant's witness, said that the automobile was 'completely demolished', that it was a 'complete wreck' and that it had been 'junked', and Stark said that he ordered no repairs for the car, that so far as he knew his mother had ordered none, and it is apparent from his testimony that he never saw it nor inquired about it after the accident.

The weather at the time of the accident was clear, the middle of the road was dry, but the sides were moist from the dew.

Robert Yancey, who lived at 711 Washington Street, said that at the time of the accident the road at that point was surfaced with black top of fine texture and when wet was 'extremely slippery', that in driving over it your 'wheels will spin and it is hard to get hold of them'. He considered the road at that point unsafe 'because there were no markers to show strangers which way that curve went, and the condition itself is bad enough for drivers who know the street. The center line in the center of the street was very, very dim'. He had an idea that the grease and oil from passing automobiles made it slippery, but added that that was 'no more than customary traffic puts on it'.

Clarence Lippel who lived next door to Yancey said that the curve was sharp, that the road surface was slippery 'as glass' when wet, that there had been more than a dozen accidents there within the year, and that the road at that point was dangerous, and he added that accidents happened 'every week, practically, sometimes several a week'. He admitted however that there was at times a 'continuous stream of traffic' at that point and at other times very little, if any.

Herbert A. Dye who was also familiar with the street at the place of the accident said that the curve was dangerous because it was 'sharp, because it is slick--several reasons why it is', but on cross examination he gave this testimony:

'Q. If this curve was as dangerous as you want the jury to believe, how come you always used this street? A. I thought I had it licked. I always was very careful.

'Q. You drove around there many hundreds of times and didn't have a wreck? A. Yes. I was an expert on the curve. Took great pains to go around it right. * * *'

'Q. Then you got around several hundred times and had no accident? A. Yes.

'Q. Would your opinion be affected by the number of times you got around there safely? A. Not at all.

'Q. The fact you went around there hundreds of times safely would not lead you to believe it could be driven safely? A. You can creep over a dangerous spot when you know it is there.' There also was offered in evidence a letter from residents who travelled over the street more or less frequently, addressed to the corporation, calling its attention to the dangerous condition of the road and asking that it be remedied.

The evidence submitted on behalf of the defendant related almost exclusively to the construction, surfacing and lighting of the road and the adequacy of the warning signs thereon. Ralph L. Rizer, the City Engineer of Cumberland, and an engineer who had specialized in road construction, said that black top was generally known among engineers as practically nonskid material,...