State v. City of Baltimore
| Decision Date | 22 June 1922 |
| Docket Number | 42. |
| Citation | 118 A. 753,141 Md. 344 |
| Parties | STATE, to Use of DOVE et al., v. MAYOR AND CITY COUNCIL OF BALTIMORE et al. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Robert F. Stanton Judge.
Action by the State of Maryland, to the use of Alice Wethered Dove and others, against the Mayor and City Council of Baltimore Maryland, the Consolidated Gas, Electric Light & Power Company, and the Chesapeake & Potomac Telephone Company. Dismissed as to the Telephone Company. Demurrers sustained to the evidence, and plaintiffs appeal. Judgment reversed, and new trial ordered.
Argued before BOYD, C.J., and BRISCOE, THOMAS, STOCKBRIDGE, ADKINS and OFFUTT, JJ.
R. E Kanode and G. Tyler Smith, both of Baltimore, for appellants.
Roland R. Marchant and E. M. Sturtevant, both of Baltimore, for appellees.
This suit was brought in the name of the state of Maryland, to the use of the widow and children of Edwin H. Dove, against the Chesapeake & Potomac Telephone Company of Baltimore city, the mayor and city council of Baltimore, and the Consolidated Gas, Electric Light & Power Company, under Lord Campbell's Act, for damages to the equitable plaintiffs arising out of the death of the husband and father, caused, as they allege, by the negligence of the defendants in permitting a live electric wire "to be and remain suspended in a dangerous condition exposed to contact with pedestrians," upon one of the highways of Baltimore city, to wit, Pratt street, near the northeast corner of Pratt and Schroeder streets, with which the plaintiffs' decedent came in contact.
The suit was dismissed as to the Chesapeake & Potomac Telephone Company, and, at the conclusion of plaintiffs' testimony, the case was withdrawn from the jury as to both of the remaining defendants on demurrers to the evidence, the court instructing the jury, at the city's request, that there was no evidence under the pleadings legally sufficient to entitle plaintiffs to recover against the mayor and city council of Baltimore; and, at the request of the Consolidated Gas, Electric Light & Power Company, that negligence on the part of the deceased directly caused the injury complained of, and the verdict must therefore be for said company.
Plaintiffs conceded the prayer offered in behalf of the city, but excepted to the granting of the prayer in behalf of the appellee, and from that ruling this appeal was taken.
No other exceptions were reserved, so the record presents but a single question, viz.: Was the conduct of the deceased of such a reckless character that the court must declare him to have been guilty of contributory negligence as a matter of law? Or were the circumstances such as to leave room for a difference of opinion among reasonable men as to whether he was justified in taking the risk he took?
No citation of authority is needed to support the proposition, recognized by decisions everywhere, that, where the acts relied upon to constitute contributory negligence are such that reasonable minds may differ as to their quality, the question should be submitted to the jury.
On a Sunday afternoon, Edwin H. Dove, while taking a walk with a friend, noticed that an electric wire of appellee had fallen from a pole line on Pratt street near Schroeder street. The wire had fallen in the form of a loop and extended for some distance in and over the gutter, with the ends caught and entangled with the other overhanging wires, or in the branches of trees. The insulation was off of part of the wire, and at one point where it rested in the gutter it was sparkling and sputtering. A number of children were playing on the sidewalk in close proximity to the wire and were poking at it with sticks. At the time Dove undertook to push or throw the wire into the street the sparkling seems to have ceased. Dove said, according to one of the witnesses, "them children might be in the way, you see it is not loaded, but if that wire comes down, tangles up and falls on them it might hurt them." The point where the wire had been sparkling was "about 10 feet or about 12 feet" from where Dove shoved the wire off. "There were children right around the point where the wire was spluttering." Dove waived them back and undertook to push the wire away from them into the street, and was instantly electrocuted.
Whatever may be thought about the danger involved in this act, it cannot be said that one could know in advance that it would result in the death of the man attempting it. Certainly he did not anticipate that result, as there is nothing to indicate that he contemplated suicide. It did not follow necessarily, that because the insulation was defective at the point where the sparkling had been observed, the wire was unprotected at the point where Dove stood, 10 or 12 feet away. It...
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