Washington, Colesville & Ashton Turnpike Co. v. Case

McSherry, J., delivered the.opinion of the Court. This is a suit 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 pláintiff in rightfully travelling along the road and across the bridge was hurt whilst 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 — 43 — 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. Whilst doing this the horses had passed on to 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. Whilst 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 twenty 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 centre. 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 acquainted 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 knowl — 44 — edge 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 whilst 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 Balto. & York. Turnpike Co. v. Parks, 74 Md. 287, 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. Whilst independently of any statute, a turnpike road company or other similar corpora — 45 — tion, which charges tolls for the privilege of using its road or bridge, is liable for injuries occasioned by its negligence. Balto. & York. Turnpike Co. v. Crowthers, 63 Md. 564, and in this respect differs from a municipal corporation, which is only liable for a breach of some statutory duty, still neither upon principle nor authority can the former be treated as an absolute insurer of the safety of persons who use its roads or bridges. Even a carrier of passengers is not held to such a stringent liability, for he is only bound to employ “ the utmost care and diligence which human foresight can use.” State, use of Coughlan, v. B. & O. R. R. Co., 24 Md. 102. If corporations of the kind now before us, be not insurers, it is difficult to suggest a reason for the refusal to grant the prayer now being considered. There was sufficient evidence, if credited by the jury, to support the hypothesis it submitted, and it comes then to the single inquiry whether the proposition of law it embodied was correct. In all actions of this character negligence on the part of the defendant is the. foundation of the plaintiff’s case. If there be no negligence, though there be an injury, no action will lie. Negligence is purely relative. In every instance it essentially involves some breach or omission of a duty that is owed to another. Without this it cannot be predicated of any act. .Where, however, the act complained of and alleged to be negligent could not by the exercise of proper diligence have been foreseen, and is concurrent in its origin with the resulting injury, and as simultaneous therewith as physical cause and effect can be, and there is no antecedent dereliction or breach of duty, actual or constructive, constituting an ulterior or primary cause, the act belongs not to the class of negligent acts, but to that described as accidents. For a mere accident, unmixed with negligence or fault on the part of the person to whom it is attributed, no action will lie. Gault v. Humes, 20 Md., 297. An accident, then, which furnishes no cause of action, is an inevitable occurrence, not to be foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any man — 46 — ner, by the act or omission of the company, its agents, employes or servants. Carroll v. Staten Island R. R. Co., 58 N. Y. 126. It is distinguishable from an act of God in this, that in the latter there is, whilst in the former there is not the presence and operation of a vis major. Patterson's Railway Accident Law, 35, and cases cited in note 2. There was evidence in the cause from which the jury might well have found that immediately before the accident the bridge was properly maintained; that is, was kept in repair to safely accommodate the travel and traffic over the road; that all the boards of the flooring were securely nailed down upon the sills or sleepers, and that no defects were visible or apparent. If besides finding these facts the jury had further found (and there was evidence, if credited, to justify the conclusion) that there was no defect or disrepair of any kind prior to the injury, but that the injury resulted from the “accidental displacement of a single plank” of which the company’s agents and servants did not know, and could not by the exercise of reasonable diligence have known, because the displacement occurred simultaneously with the injury and from no antecedent neglect, then a case of accident, pure and simple, was presented without an ingredient of negligence. If this be so the company was not liable, and it was entitled to have that theory of the case presented •to the jury as the seventh prayer was designed to present it; and there was consequently error in refusing to grant that prayer. There is nothing in either Crowther's case, 63 Md. supra, or Park's case, 74 Md. supra, inconsistent with this conclusion. In each of those cases it was held that for defects in a turnpike road the corporation was responsible in damages to the person injured, even though no statute imposed the liability, and in neither was the doctrine laid down or suggested that this liability included an injury occasioned by a pure accident. On the contrary, in the last cited case, to preclude such an inference, it was expressly said, “ If the defeiice had shown that the defect had been occasioned by — 47 — causes over which it' had no control, and of which (defect) it could not possibly, after its occurrence, have been aware, a different question would be presented.” There was also error in rejecting the fourth prayer of the appellants. It appears by the record that about a year after the accident happened the company directed all its bridges to be repaired. In doing this it was found that some of the timber in the bridge now in question was doted, or partially decayed, but still sufficiently sound and secure to have lasted several years. This doted timber was not put back in the bridge. By the fourth prayer the defendant asked the Court to say to the jury, that the fact that the bridge was repaired a year after the accident, furnished no evidence from which the plaintiff could claim that the repair was done because the bridge was in a defective condition at the time and place of the accident. In other words it asserted that because the bridge was repaired in June, 1893, it did not follow that it was out of repair in April, 1892. This seems to be obvious. There was no such relation- between the act of repairing in 1893, and the condition of the bridge a little over a year before, as to justify the inference that the condition in 1892 necessitated the repair in 1893. When the fact to be provedis the condition at the time of the injury, evidence of a condition at a subsequent period so remote as to be an independent and collateral circumstance is clearly irrelevant. Reed v. N. Y. C. R. W. Co., 45 N. Y. 574. The prayer sought to point out to the jury this legal principle, and should therefore have been granted. The third prayer was properly rejected. There was no ‘ evidence to support its hypothesis. The fifth, sixth and eighth prayers were also properly rejected. The fifth because the degree of care it prescribed as the measure of the defendant’s obligation with respect to the maintenance of its bridges in repair was not rigorous enough; and because, further, it exempted the defendant from liability if it used the degree of care therein defined, — 48 — even though the bridge continued to be in fact defective. The care and caution which a discrfeet and prudent individual would exercise if the risk were his own is not the care and caution required of a turnpike road or a bridge company which charges tolls for the use of its road or bridge. Such a corporation is held to a degree of care closer akin to that exacted of a carrier of passengers. The mere use of ordinary care in repairing the bridge would not exculpate the defendant if it had not by such care made the bridge safe. Horton v. Inhabitants of Ipswich, 12 Cush. 488. The sixth prayer put an abstract proposition to the jury and for that reason was properly rejected. The eighth prayer was wrong. Whether the plaintiff had paid the toll or not was immaterial. He was liable to pay it, and his failure to pay it, if he did so fail, did not excuse the negligence of the defendant, if the latter was really guilty of negligence. (Decided November 14th, 1894.) Because of the errors we have indicated the judgment must be reversed and the cause must be remanded that a new trial may be had. Judgment reversed with costs above and below and new trial awarded.