Wash., C. & A. Tpk. v. Case

• Decision Date: 14 November 1894
• Citation: 30 A. 571,80 Md. 36
• Parties: WASHINGTON, C. & A. TURNPIKE v. CASE.
• Court: Maryland Court of Appeals

30 A. 571

80 Md. 36

WASHINGTON, C. & A. TURNPIKE

v. CASE.

Court of Appeals of Maryland.

Nov. 14, 1894.

Appeal from circuit court, Montgomery county.

Action by Philip J. Case against the Washington, Colesville & Ashton Turnpike to recover damages for a personal injury. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before ROBINSON, C. J., and BRISCOE, BRYAN, BOYD, FOWLER, and McSHERRY, JJ.

Thos. Anderson and W. Veirs Bouic, Jr., for appellant.

Jas. B. Henderson and Ed. C. Peter, for appellee.

McSHERRY, J. This is a suit instituted to recover damages for a personal Injury. The verdict and judgment were in favor of the plaintiff, and the defendant has appealed. The appellant is a body corporate owning a turnpike road extending from Ashton to Sligo, in Montgomery county. The declaration alleges that a small bridge forming part of the road was negligently suffered to be out of repair, whereby the plaintiff, in rightfully traveling along the road and across the bridge, was hurt while using due care himself. It appears that the accident occurred in April, 1892, in the following manner: As the plaintiff was descending a hill above the bridge, driving a team which was hauling a heavily loaded four-horse wagon, he locked the wheels, and when he reached the foot of the hill, Immediately at the bridge, he went behind the wagon and unlocked the wheels. While doing this the horses had passed onto the bridge. He then discovered that his lead horse was going too much to one side of the bridge, and he ran forward to seize the lead line and control the direction of the team; and as he got about midway of the bridge, and opposite the wagon, his left leg slipped through a hole in the bridge floor, which hole was caused by the displacement at that moment of a single plank composing a part of the flooring. This displacement was apparently produced by the front wheels of the wagon. While in the act of withdrawing his leg, the hind wheels passed over and pressed upon the same plank, and injured his leg above the knee. The bridge was built upon two stone walls or abutments, which were parallel to the stream. Upon these walls, and at right angles to them, a number of sills or sleepers were placed about 20 Inches apart, and the oak flooring of the bridge was laid transversely upon and nailed to these sills. The boards forming the floor were not long enough to extend the whole width of the bridge, but were Joined upon one of the sills, slightly to one side of the center. It was claimed by the plaintiff that the plank which was displaced as above stated was displaced by one of the front wheels of the wagon forcing it off the sill on which the boards of the flooring met Upon the trial in the court below, a witness testified that he was a builder and carpenter, and was ac quainted with the enduring qualities of timber, and that he had examined the bridge in February or March, 1893,—nearly a year after the accident The witness was then asked to describe the condition in which he found the sill or sleeper upon which the boards of the flooring met; but the defendant objected, whereupon the plaintiff's counsel stated to the court that they expected to prove by the witness that when he examined the sill in question it was badly decayed, and that, from the extent of the decay then existing, and his knowledge of and experience with timbers, in his opinion the decay must have set in at the time of the accident. Thereupon the court allowed the question to be asked, and it was answered as indicated in the proffer above stated. This ruling forms the ground of complaint set forth in the first bill of exceptions. We see no serious objection to this ruling, and but little reliance was placed upon this exception in the oral argument The opinion of the witness, in connection with the facts to which he had testified, was some evidence, though slight, that tended to show the condition of the sill when the accident happened, and, while its value may not have been great, it was certainly admissible. The only other exception contained in the record brings up the rulings on the prayers. The plaintiff's first and second prayers were granted and his third was conceded. The defendant's first was conceded, its second was granted, and its third, fourth, fifth, sixth, seventh, and eighth were rejected. The first and second prayers of the plaintiff were properly granted. They fairly presented his theory of the case, and similar ones have been so frequently considered by this court that it would serve no useful purpose to review or discuss them. In the recent case of Turnpike Road v. Parks, 74 Md. 287, 22 Atl. 399, precisely the same instructions were upheld.

The defendant's seventh prayer, which was rejected, raises the chief question on this appeal. By that prayer the appellant asked the court to say to the jury that if they believed from the evidence that the bridge was properly maintained to safely accommodate the travel and traffic on the turnpike road, and if the injury complained of was caused by the accidental displacement of a single plank on the bridge, of which the company had no notice, and could not by the exercise of reasonable diligence have known, then the verdict should be for the defendant This prayer ought to have been granted. While, independently of any statute, a turnpike-road company or other similar corporation which charges tolls for the...