Rowe v. Baltimore & Ohio Railroad

Briscoe, J., delivered the opinion of the Court. — 501 — The appellee was authorized by the County Commissioners of Washington County to change the location of the roadbed on a public road or highway of that county leading from Sandy Hook, Maryland, to Harper’s Ferry, West Virginia, subject to their approval. The object of this change was to enable the appellee to construct a tunnel under the southern portion of what is known as “ Maryland Heights,” and to change the location of its railway tracks. And this suit is brought to recover damages for injuries sustained by the plaintiff whilst driving over and along the changed and newly constructed portion of the public road and before it had been accepted or approved by the County Commissioners. At the trial of the case the plaintiff reserved four exceptions to the rulings of the Court, and the judgment being against him, he has appealed. We will consider these exceptions in their regular order, as the questions in the case are presented by them. The first exception is to the refusal of the Court to allow the witness, Merriman, to relate a conversation had with a foreman of the work, as to the dangerous condition of the rock which had been left overhanging the public road, and to give the opinion of the foreman as evidence to the jury. This being hearsay evidence, was clearly inadmissible and was properly rejected by the Court. The second exception was to the offer by the plaintiff to prove by the clerk of the County Commissioners that the road had been examined by the Commissioners and the overhanging rock had been ordered to be removed. This, we think, has been disposed of for the reasons assigned in considering the first exception. The witness had previously testified and the plaintiff had the benefit of his testimony that the road had not been approved or accepted by the Commissioners at the time of the accident, and the testimony here sought to be introduced was the opinion of the Commissioners as to the condition of the road. The third and fourth exceptions embrace the ruling of the Court upon the prayer, and that is, was there error in grant — 502 — ing the defendant’s prayer at the close of the plaintiff’s case, which instructed the jury that there was no legally sufficient evidence that the injury was occasioned by the negligence of the defendant and their verdict must be for the defendant. Now, it is the well settled law of this State that the legal sufficiency of evidence is a question of law for the Court. The onus' of proving that the injury was caused by the negligence of the company was on the plaintiff, and if there was no evidence legally sufficient for that purpose, there could be no recovery. But the prayer was in the nature of a demurrer to the evidence and was a concession of all the facts, and if there was any evidence from which a jury might honestly reach the conclusion that the injury had been caused by the negligence of the defendant, then there was error in withdrawing the case and not allowing the jury to consider it. We will then consider the evidence. It appears from the record that the defendant, in constructing its tunnel, filled up the old roadbed with the rock and earth taken from the tunnel, and the new roadbed was made about thirty feet further north, along and against “ Maryland Heights.” At the eastern end of the tunnel a large rock was encountered in making the changed roadbed, and to properly construct the road for the use of the public, considerable blasting and cutting out and under this rock became necessary, which left a large rock, called “ the overhanging rock,” extending ten feet over the roadbed and about thirty-five feet high. The plaintiff testified that while returning to his home in Harper’s Ferry, on the 18th of April, 1894, and while driving along the east end of the tunnel, he heard a noise, and on looking to the side he saw stones falling from under the overhanging rock along the road ; that a portion of them struck one of his horses, “ knocked his hind feet from under him, as I thought, for he went down; that a larger stone dropped between the wagon and the cut; that the stone that struck his horse came from under the overhanging rock, and by this he meant the rock that hangs out over the road ; that it was the same kind of rock as the overhanging rock.” The — 503 — witness, Cornelius Virtz, testified that he frequently travelled' the road; that the defendant had blasted under the rock in making the road; that the rock under the overhanging rock looked seamy, as if it would come down in time; that he saw rock in the road the day the plaintiff was injured, and that it came from the overhanging rock. And there were other witnesses who testified as to the dangerous condition of this rock, overhanging the road, at the time of the accident, and who further testified that stones rolling from the mountain above would not fall under the rock but would roll beyond the roadbed. Now, without stopping to further review the testimony here, we think it is clear that' the plaintiff had established such a case as entitled him to have the whole evidence passed upon, and there was error in the Court’s withdrawing the case from the jury. In the case of N. C. R. Co. v. The State, use of Price, 29 Md. 440, it was said, that while it is true, negligence may, in many cases, become a mere question of law, to be determined by the Court, upon a given state of facts, either admitted or to be found by the jury, “ it is not, however, the duty of the Court to draw inferences and make deductions from evidence. To do that falls within the well defined province of the jury that Courts should ever be careful not to invade.” And in the more recent case of B. & O. R. R. Co. v. Keedy and Snyder, 75 Md. 320, it was held, that if there be evidence from which the jury may honestly find negligence on the part of the defendant, there is no error in allowing them to c’onsider it, although it may not be of such character as to convince all minds that such negligence was committed. And whether or not the facts in this case constituted negligence, was a matter for the jury to pass upon, with proper instructions from the Court. People's Bank v. Morgolofski, 75 Md. 441; Grabrues v. Klein et al., 81 Md. 83. We come then to the question as to the liability of the defendant. It is contended that if any liability exists at all, it attaches to the County Commissioners of Washington — 504 — County, and not to the defendant. This question and the principles controlling it have been too recently passed upon by this Court, to need but a single citation here. In the case of C. & O. Canal Co. v. County Commissioners of Allegany Co., 57 Md. 224, it was said, that the party injured could have sued the Canal Company, instead of the present appellee, if he had elected so to do. The remedy against the Commissioners is cumulative ; and it is well settled that a party injured may if he see-fit, proceed directly against the party actually guilty of the tort and against whom an action over for indemnity will lie. Eyler v. County Commissioners of Allegany County, 49 Md. 269. This objection cannot then be maintained. But it is objected that the bills of exception in this case are not sufficiently connected by apt words of reference so as to permit the Court to look to the evidence for the purpose of considering the ruling of the Court upon the prayer. While it is true, that facts stated in one exception cannot be looked to in disposing of a question raised under another, unless the two are connected by some apt reference (Cooper et al. v. Holmes, 71 Md. 25;) and even if it be conceded here that there is no connection between the first and second bills of exception and we cannot consider the evidence in the second bill, yet we think the third and fourth bills can be considered in connection with the first. In the case of Ruhl and Son v. Corner and Co. 63 Md. 189, where all the testimony was contained in the first bill, it was held that the Court could look at the evidence in that exception for the purpose of determining upon the rulings on the prayers because the second exception which contained the prayers began as follows : “ All the testimony being in, th‘e plaintiffs offered the following prayers.” And the Court said: “All the evidence was in and the prayers were not intended to be mere abstractions. They were offered with reference to the proof, as their form shows. The most appropriate language is not used for connecting the two bills of exception, but we regard it as entirely sufifi — 505 — dent. * * Reference to the testimony is manifestly made. It is equivalent to saying, ‘ there being no other testimony,’or ‘ this being all the testimony.’ The intention is too plain to be disregarded.” In the case now under consideration, the third exception states, “ the plaintiff having rested his case4 the defendant offered the following prayer;” and it is clear that the.prayer was offered with reference to the proof, because the prayer recites that “ there is no legally sufficient evidence in this case, that the injury to the plaintiff alleged in the declaration, &c.” And this statement, that the plaintiff having rested his case the defendant offered the following prayer, sufficiently connects that exception with the first, which contains the material evidence in the case. In B. & O. R. R. Co. v. State, use of Fryer, 30 Md. 54, it was also said: “This objection we think rather more technical than substantial. We cannot fail to perceive that the bill of exception to the refusal to grant the defendant’s prayers was second in the course of the trial, and that it was taken after all the evidence was closed; and the terms, ‘whereupon,’ &c., sufficiently refer to what had preceded it, to authorize resort to the first bill of exception to ascertain whether the prayers were or not mere abstractions.” Decided January 31st, 1896. But apart from this, we think that the beginning of the second exception sufficiently shows that it was connected with the first. It begins and is headed “ Cross-examination by Mr. Maulsby,” and an examination of it sufficiently shows that it is a continuation of the examination of the witness Reese Merriman, whose testimony in chief is embraced in the first bill of exception. Upon a consideration then of the whole record, it seems to us that the prayer was submitted with reference to all the testimony. Manifestly, any other construction would be both narrow and technical. Being then of the opinion that there was error in the Court’s ruling upon the prayer, in withdrawing the case from the jury, we shall reverse the judgment and grant a new trial. Judgment reversed and a new trial awarded with costs.