Baltimore & Liberty Turnpike Co. v. Cassell

Yellott, J.,

delivered the opinion of the Court.

A suit for the recovery of damages was instituted in the Court of Common Pleas of Baltimore City, by the appellee against the appellant; and from the judgment rendered in that cause, this appeal has been taken. As shown by the record the appellant, a body corporate, owns a turnpike road and is authorized by its charter to exact and receive the payment of toll for travel over said road. On the night of the sixth of November, 1885, the appellee, while driving a coach, was injured by the vehicle being overturned and thrown down a declivity on the side of this road. The plaintiff averred in his declaration, and offered evidence tending to prove that the accident resulted from the neglect of the defendant to keep the road in a safe condition for travel. The defendant adduced proof for the purpose of showing that there was no negligence on its part, and that the proximate cause of the injury was to be found in the fact that the plaintiff was driving a pair of horses, one of which was young and refractory, and that this animal became fright *430 ened and forced the coach over the declivity. There was much conflict of testimony, but the jury, enlightened hy the instructions of the Court, found for the plaintiff.

In this record are twenty-two hills of exception; twenty-one of which are in relation to the admissibility of evidence; while the remaining exception applies to the. ruling of the Court, rejecting the prayers of the defendant and granting a prayer offered by the plaintiff, and also giving instructions of its own.

The appellant has abandoned its fourth, sixth, eighth, twelfth, fifteenth, sixteenth and nineteenth exceptions on tlie ground that the legal propositions which they present cannot he maintained in view of the decision of this Court in Baltimore and Yorktown Turnpike Road vs. Crowther, 63 Md., 558 . The questions presented by the exceptions still relied on must now he considered and determined.

The established rule is that, when corporations are authorized and empowered by legislative enactments to construct or improve turnpikes and other public works of a similar nature, they are under a legal obligation to have the work done with due regard for the safety of individuals, and will he held liable in an action for damages, resulting from the non-performance of this duty. The taking of toll from travellers as compensation for the use of the road creates an obligation to maintain every part of said road in a safe condition. Nicholl vs. Allen, 1 Best & Smith, 932; Balt. & Yorktown Turnpike Co. vs. Crowther, 63 Md., 566 ; Ireland vs. Oswego Plankroad Co., 13 N. Y., 526 ; Brookville, &c., Turnp. Co. vs. Pumphrey, 59 Ind., 78 .

The first hill of exception, which has not been abandoned, was taken to the admission of the testimony of a witness who said he was well acquainted with the road, and described its condition from his own observation. He was then asked: “Please state whether or not in your opinion, from what you saw of the road, it was safe to travel at that point hy wagons or carriages ? ” It was *431 contended that this was an attempt to place the witness in the position of an expert. But this objection does not rest on any substantial basis. Experts are persons who have technical and peculiar knowledge in relation to matters with which the mass of mankind are supposed not to be acquainted. Thus a vessel is intended to be navigated by one having nautical experience, and cars on a railroad are under the management of those who are supposed to have acquired knowledge and skill in the control of trains. It is manifest that mere passengers cannot be experts in relation to these modes of locomotion, although they may testify to the existence of facts coming within their observation. But macadamized roads are constructed for all persons to ride and drive over, and the most timid traveller does not deem it necessary to carry an expert in his carriage to designate the dangerous places. Even animals will sometimes notice such places and avoid them; and any human being who has the use of his organs of vision, and .is possessed of an intellect above the grade of idiocy can tell when a particular place in a road is dangerous or otherwise, and is therefore competent to testify as to its condition; the value of his testimony being for the consideration of the jury. In Crowther’s Case, 63 Md., 568 , this Court said: “Whether this bank or declivity rendered the road unsafe for travel was a matter about which men of ordinary intelligence could speak as well as' experts in road-making, and the testimony of such witnesses is often resorted to in such cases.”

What has been said on this subject is also applicable to the defendant’s thirteenth, eighteenth and twentieth bills of exception, which present substantially the same legal propositions. There is no perceptible error in any of the rulings of the Court below in relation to the admissibility of the evidence to which these exceptions apply.

Testimony was offered by the plaintiff tending to show that he was injured by the coach having been thrown *432 •over the declivity, and the witness was then asked to state what his physical condition and appearance of health were after the accident and continued to be. These were facts pertinent to the issue, and it was necessary that the jury should have the information thus sought for in order that they might ascertain the extent of the injury so as to determine on the amount of damages which it would be proper to award. The testimony could only have been objected to on the ground that the witness was not a medical expert. . It is true that medical experts may be the only witnesses competent to give the diagnosis of a disease, to testify in regard to its proper treatment secundum artem, and to express an opinion as to its probable duration, effects and final termination. But if ordinary individuals could not judge of a person’s health from his appearance and symptoms, it would he impossible to know when it was necessary to call in a physician. If a man received a blow from a heavy bludgeon on his lower limbs, certainly an unlearned person, who observed the occurrence, could testify that after the infliction of the blow his appearance was that of a crippled man, but not before. The testimony shows that fhe plaintiff was thrown down a declivity and after the accident could not walk, hut was ■carried home, and certainly any one who then saw him was competent to say whether his appearance was that of a disabled man or one in a sound condition of health. The learned Judge in the Court below therefore 'committed no error in admitting the testimony. What is here said disposes of all the remaining exceptions exclusive of the twenty-second, which relates to the ruling of the Court in granting or refusing the instructions sought to be obtained.

The prayer of the plaintiff was granted, and the Court, rejecting all the prayers of the defendant, gave its own instructions containing a clear, concise and proper exposition of the legal principles applicable to the facts forming the foundation for the verdict of the jury.

*433 In the prayer of the plaintiff the jury are told that, if they find for the plaintiff, in estimating the damages they are to consider the physical condition of the plaintiff anterior to the injury as “ compared to his present condition,” and this prayer is specially excepted to on the ground that “ there is no legally sufficient evidence that the plaintiff’s internal trouble, giving rise to the loss of blood, is the natural proximate consequence of an injury sustained by the defendant’s negligence.” The evidence shows that after the accident the plaintiff was unable to walk; that he was carried home; that the bloody discharges were observed next morning and have not yet ceased; and surely from these facts a jury might, if they believed the evidence, infer that the abnormal condition of the plaintiff was caused by his fall over the declivity as described by the witnesses. This prayer, which gives the rule for the ascertainment of damages, is in consonance with what has been settled by adjudication, and there was no error in granting it. City Pass. R. W. Co. vs. Kemp, 61 Md., 75 ; Woodbury vs. Dist. of Columbia, 3 Central Reporter, 788; Ballou vs. Forwood, 11 Allen, 73 .

The first and second prayers of the defendant, as well as its seventh and ninth could not be granted. Each of these prayers, when analyzed, presents the proposition that even if the defendant was negligent, yet if the plaintiff was driving a fractious horse, or was unable to control his horses because of a weakness of the arm, caused by a bone felon or by any physical disability of a similar nature, he was not entitled to recover. These prayers were properly rejected for the reason that they tended to mislead the jury in regard to the law as applied to a case ■of contributory negligence.

The third, fourth and fifth prayers of the defendant relate solely to the exclusion of evidence, and are not properly drawn, as they leave nothing for the finding of the *434 jury. They simply reproduce questions which had already been passed upon by the Court below on objection to the evidence wheq offered, and have been disposed of by what has been said in considering the questions raised by exceptions to that evidence. The sixth and tenth prayers relate to the testimony of a physician examined at the trial, and who said that he had recently seen the plaintiff, and testified in relation to the continuance of the bloody discharges, and also answered a question relative to a case supposed to be similar to the one then on trial. These two prayers ash the Court to exclude the whole of this testimony. Most certainly the continuance of the bloody discharges was an important fact pertinent to the issue, and the physician, who said he had examined the plaintiff, was a very proper person to prove that fact. In regard to the question relating to the supposed case, it must be recollected that the physician was a medical expert, and this Court decided in the case of the Baltimore & Ohio R. R. Co. vs. Thompson, 10 Md., 84 , that although “if the facts are doubtful, and remain to be found by the jury, an expert, who has heard the evidence, cannot give his opinion upon the case on trial, he may be asked his opinion on a similar case hypothetically stated.” The Court below, therefore, properly rejected these prayers. The eighth prayer of the defendant, asks the Court to say to the jury that if there was any want of ordinary care on the part of the plaintiif, contributing to the accident, he cannot recover. This prayer is covered by the Court, own instructions.

In the Court’s own instructions the jury are told that if they believe the injury was occasioned by the defective and dangerous condition of the defendant’s road, and that condition was, or could have been known, in time to prevent the accident by the exercise of ordinary care on the part of the defendant, the plaintiff is entitled to recover unless he contributed to cause his misfortune by driving a *435 horse not ordinarily gentle, or by driving with one hand disabled from previous ailment so as to interfere with the proper management of his team, or was wanting in that degree of attention, circumspection, skill and care to avoid accident, which ordinary, careful and competent drivers habitually employ, or might reasonably be expected to employ, in similar circumstances.

(Decided 5th January, 1887.)

The defendant has specially excepted to these instructions on the ground that “ there is no legally sufficient evidence-that the injury complained of was occasioned by the defective, improper and dangerously unsound condition of the defendant’s road.” Theré is abundant evidence that the plaintiff was, with his horses and coach, precipitated over the declivity; a number of witnesses testified that the road was in an unsafe condition at this point; and one of these witnesses stated that this very place in the road was called by the drivers “a Hell Trap.” This expression, though not very euphonious or refined, is certainly suggestive of the extremely dangerous condition of the defendant’s turnpike at that particular locality.

There being no error in any of the rulings of the Court below its judgment must be affirmed.

Judgment affirmed.