Ver-Vac Bottling Co. v. Hinson

Offutt, J., delivered the opinion of the Court. On January 16th, 1922, at about three o’clock in the afternoon, William B. Hickey, an employee of the Ver-Vac Bottling . Company, was driving a truck belonging to his employer along the Lodge Earm Road, a public highway in Bal *269 timo-re County, where it hinds on the land of John W. Hinson, the appellee, on his way to deliver certain eases of soft drinks with which the truck Was loaded to the appellant’s customers living in 'that neighborhood. The road was had, and not feeling sure that it was passable, he stopped his truck at a point opposite a tree on Mr. Hinson’s land, where a colored man was working, apparently cleaning away some brush and undergrowth near .a ditch, and inquired of him whether he could get through to deliver goods consigned to two customers on his route. He was told that he could, and as he was leaning forward to reach a lever for the purpose of starting the truck again, the tree fell, striking the rear part of the cab of the truck where the driver was seated; and “smashing up everything behind him.” He then discovered tbalt all the dirt had been grubbed away from 'the roots of the tree, and the roots themselves had been cut, and the tree allowed to remain in that condition, ready to fall, within a few feet of a public highway, with no warning of any kind to the travelling public of the danger which it created. After the accident the Ver-Vao Bottling Company brought this actiou against the appelleei, who owned the land ton which the tree stood, to recover for the loss it sustained through the destruction of its property. The case was tried before the court, in the Circuit Court for Baltimore County, and the verdict and judgment in that case being for the 'defendant, the plaintiff took this appeal. At the conclusion of the whole case the plaintiff offered three prayers and the defendant nine. The court grantéd the plaintiff’s first and second prayers, and the fourth, seventh and ninth prayers of the defendant, and refused 'all the others, and those rulings are the subject of the only éxception found in the record. The rulings as to the plaintiff’s third prayer and the dofendant’s seventh and ninth prayers need little comment. The plaintiff in its third prayer asked the court to instruct itself that if it found “from the evidence in the contract- for sruhbinv' the tree entered into between the defendant and One *270 John Oliver it was contemplated or agreed that the tree should be grabbed, then in so far ais the tree immediately •adjacent to the public highway was concerned, 'the plan itself for' its removal was negligent, and, therefore, the doctrine of • 'independent contractor is no defense -in this suit, and' the ■verdict must-be for the defendant.” -That prayer was ob■•viously bad, first, because it assumed a fact which should ■have been left to the jury; that is, whether there was a eoal- ■ tract for felling the tree, and second, because it assumed that 'any plan for felling & -tree adjacent to <a public highway was either negligence in law or 'an actionable nuisance. -As a ■legal abstraction that is not a correct statement of the law, 'for while it is undoubtedly true that -one who directs a tree i to-be felled so- near a public highway that possible danger to ofcbe travelling public may reasonably bé anticipated a's a nát- - u.ra-1 cOnse-quenc-e -thereof,' is bound to uise at least ordinary ’care and' caution possible under the circumstances, to pre- '•vent any'such -injury, yet he is not responsible if in fact such care was exercised. As for' instance, if guards were Maintained to warn the travelling public of the danger, and one warned of the danger by them, in entire, disregard of 'such warning, exposed himself to- it and was injured, it'could 'not reasonably be said as a matter of law that the injury Should be attributed to the defendant’s- negligence' when it 'wais obviously due to bis own. An owner may have- the right to remove trees from the highway itself (Clark v. Dasso, 31 Mich. 86), and a< fortiori he has' the right to-remove-trees 'on land abutting on -a highway without necessarily committing .a nuisance, even though the tree accidentally falls into the 'highway. The- defendant’s seventh and ninth prayers are the usual and conventional prayers offered so. frequently in cases of this character .and deal with the- burden of proof and the definition of negligence, and as they have been repeatedly approved both in f-orm and substance by this Court, we find no error in the rulings as to them. 1 ’ The defendant’s fourth prayer, which was granted, 'pre- ■ s-en'ts this proposition, that if “at the time of 'the happening *271 of tbe accident mentioned in 'the testimony, .a tree on the land of the defendant was being grubbed or cut down, by one Robert Oliver,” and' if “the said Robert Oliver was not grubbing or cutting down said tree for tbe 'defendant, and if the * * * said Robert Oliver was not acting as the defendant’s servant or agent within the scope of his employment, then the verdict of the court sitting as a jury must be for the defendant.” That prayer is based upon tbe theory that Oliver, the colored man who felled the tree, had bought it from Hinson, and that he was, therefore, neither an employee of Hinson nor an independent contractor for him, and that for that reason there could he no recovery in this action, no matter'how negligent Oliver may have been in felling tbe tree, and regardless of whether HinsOn 'had, in permitting Oliver 'to fell it, taken any precaution to protect .the travelling public who might he injured thereby. The testimony in the case, the truth of which for .the purposes of this opinion, will be pre-' sumed, shows that Hinson wanted the tree removed’ in order to build a road, and that he told Oliver he could" have the tree in question if he would' dig it up, and that Oliver accepted that offer and did grub up tbe tree. ■ Erom those facts tue appellee infers as a matter of law that the 'tree was sold by Hinson to Oliver, and that since Oliver owned the tree Hinson. was not .answer-able for any tort or negligence committed by Oliver in removing it. "We cannot agree with either o± those conclusions. It is true that since Hinson gave the tree to Oliver as compensation for Oliver’s work in digging it up, it might be inferred that he sold it to him for the labor expended in digging it up1. But on the other hand it might just as reasonably be inferred that since Hinson wanted the tree removed so that he could build.a road, that he employed Oliver to remove it and gave him the tree instead.of paying him in some other -medium. 'Certainly the facts we have recited are not in themselves sufficient to create an<-irrebuttable presumption that the transaction was' a sale: of 'fhe tree and- not an employment of Oliver. And yet inferentially the -prayer makes the appellant’s right .to recover de *272 pend upon that proposition, for if Oliver in felling the tree was. not acting as the employee or agent of Hinson, he-must have been acting as the owner of the tree, since it must he conceded that he was not acting as a trespasser, and the prayer, although it denies the appellant the right to recover if Oliver did not fell the tree as the employee or agent of Hinson, does not refer to any other1 fact or circumstance which could require the court sitting as a jury to find that he was acting as the owner of the tree. Under the circumstances of. this1 case such an instruction was too vague, uncertain .and incomplete, and the prayer should have been rejected for that, reason. • But aside from that, the proposition, that one owning land abutting on a public highway and desiring to remove a tree or;.ether object located thereon, .the removal of which might imperil the traveling public, can escape liability for the consequences of removing it by the simple device of selling the object to some person, upon his agreeing to remove it, is obviously unsound. We are not dealing here with the relations bétween Hinson and Oliver, but with Hinsou’s duty and obligations to the travelling public iu the lawful use of that part of the public highway ou which his property abutted. Hinson owned the land on which the tree stood, he wanted it removed' for his own convenience, he knew that its removal might endanger the travelling public unless reasonable precautions were taken to obviate that danger, and he expressly contracted for its removal. Regardless of Oliver’s equitable title to the tree, it was at the time of the accident actually' in the possession of Hinson, and on his property, and in arranging for its removal Hinson was bound to> exercise at least ordinary care to see that persons in the lawful use of the highway were not injured 'thereby, and he is liable if he failed to use such care. For where one negligently directs another to place his premises in such a condition as to cause an injury he- is liable therefor. 29 Cyc. 476; Conradt v. Clauve, 93 Ind. 476, 47 A. R. 388. The owner of land abutting on a public highway owes a duty to such of the travelling *273 public as are in the lawful use of that highway to use reasonable care to see that they -are not injured by the use of his property. And if in default of that duty he enters into an arrangement for the doing of an act on 'his property'in which from its very nature a peril to the users of the highway inheres, and injury results from that act, he is liable. Deford v. State, use of Keyser, 30 Md. 179. But by this prayer the court instructed itself as a jury that the plaintiff could not recover unless Oliver grubbed or out down the tree as the defendant’s agent. That is, if the court found that Oliver bought the tree from Hinson, the plaintiff could not recover, although Oliver, at the time of the accident, was a.t work on the defendant’s' premises and grubbing up the defendant’s land, and although the work was in its very nature fraught with, the utmost danger to users of the highway and was done for the benefit of the defendant, in a manner directed by him1, and in accordance with an arrangement made by him, and although he knew that it would necessarily endanger the public unless proper care was taken to avoid such danger, and although the accident 'occurred through negligence in removing the tree. Eor the reasons stated we do not think that the prayer should Lave been granted, and because of the error involved in the ruling as to it, the judgment appealed from must be reversed. Judgment reversed with costs to the appellant, and case remanded for a new trial.