Parsons v. Chesapeake & Potomac Tel. Co. of Baltimore City

• Decision Date: 16 March 1943
• Docket Number: 50.
• Citation: 30 A.2d 788,181 Md. 502
• Parties: PARSONS et al. v. CHESAPEAKE & POTOMAC TEL. CO. OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

30 A.2d 788

181 Md. 502

PARSONS et al. v. CHESAPEAKE & POTOMAC TEL. CO. OF BALTIMORE CITY.

No. 50.

Court of Appeals of Maryland

March 16, 1943

Rehearing Denied April 8, 1943.

Appeals from Circuit Court, Queen Anne's County; William R Horney, Judge.

Action by Calvin Parsons and another against the Chesapeake & Potomac Telephone Company of Baltimore City for Personal injuries. Judgment for defendant, and plaintiffs appeal.

Affirmed.

J Harry Cross, of Baltimore, for appellants.

T Hughlett Henry, of Easton (John Palmer Smith, of Centerville, on the brief), for appellee.

Before SLOAN, DELAPLAINE, MARBURY, GRASON, MELVIN, and ADAMS, JJ.

MELVIN Judge.

The appellant, Calvin Parsons, was the operator of an automobile which collided with a telephone pole of the appellee corporation along a State highway in Queen Anne's County, Maryland. The appellant, Catherine Mohan, was a passenger in said car, and both parties brought suit against the appellee for damages, alleging negligence in constructing and maintaining said telephone pole in a dangerous position in said road. The court sustained appellee's demurrer to the declaration in each of said cases, and from the judgments of non pros and for costs each of said parties has appealed. By stipulation of counsel the two appeals are consolidated in one record.

The single question before the court concerns the sufficiency of the declarations, the substantial allegations of both being identical. These allegations are: That on September 13, 1941, the appellant (Parsons) was driving his automobile on State Highway U.S. Route No. 213, a public road in Queen Anne's County, Maryland; that said highway had been negligently 'suffered by the defendant to become unsafe in that the defendant did construct and maintain a telephone pole in a dangerous position in said road, by placing said pole in the side of said road within but a few feet of the travelling portion thereof, in a ditch which started with an abrupt side at the very edge of said travelling portion, there being no shoulder whatever to said road between said edge and said ditch side, weeds being in said ditch and of a height and appearance creating the illusion of level ground adjoining said travelling portion, a ridge being in said travelling portion paralleling and near the said edge, said pole being out of line with the defendant's other poles nearby along the same side of said road and much closer to the travelling portion than the poles on the opposite side of said road;' that on the aforesaid date, while the plaintiff was thus driving his automobile along said road, 'the said automobile went off of the said travelling portion and instantly down the abrupt side of said ditch and into said ditch which forcibly guided said automobile into said pole.' The declaration of the other plaintiff (appellant Catherine Mohan) contains the identical allegations above quoted, the only difference being that her suit was as a passenger in said automobile.

The question of law which first arises upon the demurrer to said declarations is whether or not the alleged dangerous position of appellee's pole was, as alleged in each narr, the proximate cause of the injuries. It is to be noted at once that the automobile had left the travelled portion of the road, that in so doing it first encountered a ditch which started 'with an abrupt side at the very edge of said travelling portion', and instantly went down the abrupt side of said ditch 'and into said ditch which forcibly guided said automobile' into appellee's pole. It is also to be noted that the bill alleges that said automobile 'went off of the said travelling portion' without mentioning the cause of this divergence from the highway.

It is apparent from these allegations of the narr that the condition of the State highway, including that part under the immediate jurisdiction of the State Roads Commission, had a direct connection with the happening of the accident. It is also apparent that this condition of the highway was an independent factor which intervened as the superseding cause of the injuries complained of. Under the facts as alleged, it would have made no difference whether appellee's pole was two or three feet, or more, from the roadway because it was the ditch 'which forcibly guided said automobile into said pole.' This factual situation renders applicable the doctrine of proximate cause, as clearly defined by the authorities.

This is expressed as follows by Judge Offutt in Holler v Lowery, 175 Md. 149, 161, 200 A. 353, 358: 'There is no...