Mayor of Baltimore v. Holmes

Robinson, J., delivered the opinion of the Court. This suit was brought to recover damages for injuries sustained by the plaintiff in attempting to lead his horse attached to a cart, over a pile or ridge of stones, which the declaration alleged, the defendant had negligently suffered to obstruct one of the public streets in t,he city of Baltimore. The defendant through its Water Department, was laying water mains along the west side of Charles, between Mulberry and Saratoga streets, the whole work including repaving, being performed within five days. The plaintiff was hauling materials from the old “ Albert Mansion” on Charles street, north of Saratoga, and on coming to the house on the 4th of July for a load, he found a pile or ridge of stones, along the west side of the street, extending in front and about fifty yards, beyond the house. No attempt was made by the plaintiff at this time to cross over the stones, but stopping his horse on the east side of the street, he carried with the assistance of persons working in the house, the materials, to the cart. On the 8th of July, finding , the street still obstructed by .the pile of stones, he loaded his cart in the same manner, but when he returned for a second load, not finding any one to help him, and the materials being, heavy, he attempted to lead the horse over the stones and in so d.oing, the horse stumbled, and in falling.struck the plaintiff on the leg and broke it. Th,e horse vsras sound and steady and the plaintiff was carefully leading, himn over. ■ Evidence was offered by the defendant to prove that the whole work in laying the mains occupied about five [249] days and that it was carefully and promptly done, the men employed being experienced and competent workmen. The plaintiff' was cautioned to be careful in crossing the ridge of stones, because the witness thought it was dangerous. Upon these facts the Court instructed the jury : 1st. That if the defendant “pulled up the pavement and allowed the same negligently to remain for a considerable length of time, by reason of which the plaintiff' in the course of his employment and duty, and without any negligence or fault on his part, had his leg broken, then the plaintiff was entitled to recover.” 2nd. That if' the defendant found it necessary to lay water mains on Charles street, along and at the point where the plaintiff was injured, and the whole work was done by the employes in a proper manner, and with reasonable care and diligence, the plaintiff was not entitled to recover. 3rd. That if the plaintiff did not use reasonable care and diligence, and the injury complained of could have been avoided had he done so, then he was not entitled to recover. The question of negligence both on the part of' the plaintiff and defendant, was fairly put to the jury. The defendant contends, however, that the attempt on the part of the plaintiff' to lead his horse over the pile or ridge of stones, was, such a glaring act of carelessness as to amount in laxo to contributory negligence, and that the Court erred in refusing so to instruct the jury. Negligence is the want of such care as men of ordinary prudence would use under similar circumstances; and the question as to whether tire act of the plaintiff amounted in law to negligence, depended upon the danger which might reasonably be expected to result therefrom. If the danger was so great that no sensible man would have incurred it, the plaintiff was not entitled to recover, but [250] this' dfcourse ijaise.d a, question of. .fact, which ; we think" was ‘properly, submitted ,to-, the jury.-' This '-case' is 'not unlike Clayards vs. Dethick & Davis, 64 Eng. Com. Law, 439,‘where the 9pmmissiqneys..of Sewers:dug1 a trench in1 the only outlet from a mesys,. leaving a niarrow'-pasdage', on which they heaped gubjñsh,. and 'a <cabman■ in' exercise of his calling, p/ttempted.-tD lead-his -horse ovér the jubbis^anb, the jiqrse f'elLand-was- -kilted.' :It was1 held^that the plaintiff w,as ,not- disentitled - to 'recover,1 because he had at .some hazard, created by the; defendant1, brought h'is ^horse, out qf tpe stable, and-that'it wad pro1perly!'lef't tó thé jury whether ,he' had persisted contrary1 to express'vyarning, as .po yhich, there -was'Contradictory evidence^ in' running Uppn an -obvious-danger. - i • " " " (Decided 16th January, 1874.) Patterson^ J., said “ The whole- question-was-whether the danger was so obvipius, that, the plaintiff - could not,1, with common prudence -make' the attempt. That was - ■ i -i i , A , , properly put to thpjuryi ; ■ ; ( - 1 ‘ Lord Denman,. C.,J, “I .h-ave- no--doubt-that'I left'it to the jury to say. whether .the ¡.plaintiff had- used ord-i-1 nary cárei for I always leave- cases of the kind in that • . ■ manner. . >v . ,-,- . . . 1 ¡ ■ -v -. ■■ ; .- • i - ■ In this case, we.thin^ the. Court ,was -right - in submitting the question ¡of, negligence, both on -the-part of .the-plaintiff and defendant, to fjhe-jury^. and the judgment below will therefore be affirmed. < . , Judgment affirmed.