MAYOR, ETC., OF BALTIMORE v. STATE OF MARYLAND, to Use of HUTCHISON et al., 166 F. 641

WADDIDL, District Judge (after stating the facts as above). With the view of intelligently passing on the instructions given by the court, a brief statement of the facts in the case will be given. The city, in constructing the bridge at the point where the accident happened, found it necessary to make an excavation into 'the southern line of the public highway, 20 feet wide, 25 feet deep, and extending along the highway some 100 feet or more.

The testimony tended to show that on the night in question the city sought to protect this excavation by a railing or barrier, upon which there were four red lights, extending from the bridge out to and beyond the point in the excavation near the fourth light; and at the end of the fourth light, a scantling of timber of some 20 feet in length from the top of the barrier to the ground; and there was a fifth light some distance beyond the fourth light, placed upon a pile of timber.

The excavation in which the automobile ran was at a point where the course of the highway veered to the northwest, and the extension of the excavation into the street made it necessary to bear sharply to the northwest, with a view of passing to the northern, rather than the southern, side of the highway; that in the area outside of the highway between, and in and about lights 4 and 5, the surface had the same appearance as the roadbed proper, which was caused by the passage of the city carts in conveying material and dirt to and from the excavation.

The plaintiff’s case is that, as the automobile in which he was a passenger approached the bridge proceeding westwardly along said roadway, these lights were so placed as to mislead the driver of the automobile, and that he was especially misled by the fifth light upon the pile of timber near the road, placed at a distance of some 60 feet from the fourth light, which caused him to suppose that the four lights were a continuous row of lights on one side of the street, and this fifth light, not placed in line with the others, was on the opposite side of the road, and that he ran between the fourth and fifth lights, leaving the highway nearer to the fourth light, upon and over the traveled area aforesaid, passing through the opening used by the city carts as aforesaid, and pitched headlong down the embankment.

The city, on the other hand, insists that the excavation in the road was in all respects properly guarded and lighted, and the accident occurred by reason of the failure of the driver of the automobile to exercise the degree of care required of an ordinarily prudent person in approaching a place where there was danger or warning of danger; that the lights were not so placed as to mislead a traveler in the exercise of due care, and that the automobile did not leave the highway at the point claimed by the plaintiff, but, on the contrary, that the automobile ran into and disarranged the barrier at or near the fourth light, and knocked same down.

Upon this state of facts, the case was submitted to the jury under instructions as above given, to which the plaintiff in error excepted as a whole, without pointing out the specific objections to all or any one of them, as contemplated by the tenth rule of practice of this court. Strictly speaking, the writ of error should be dismissed for lack of proper assignments of error, since the court is left entirely in the dark as to what objection there’ is to any particular instruction. This omission seems wanting as well in the bills of exception filed in the lower court, as in the assignments of error. Johnston v.

Jones, 66 U. S. 209, 221, 17 L. Ed. 117; Railroad v. Varnell, 98 U. S. 481, 25 L. Ed. 233; Block v. Darling, 140 U. S. 234, 11 Sup. Ct. 832, 35 L. Ed. 476; rules 10 and 11 (150 Fed. xxvii, 79 C. C. A. xxvii) of this court; Anderson v. Avis, 62 Fed. 227, 229, 10 C. C. A. 347; Thom v. Pittard, 62 Fed. 232, 235, 10 C. C. A. 352; and cases cited — the last two cases being decisions of this court; Western Union Telegraph Co. v. Baker, 85 Fed. 690, 691, 29 C. C. A. 392; N. P. Ry. v. Krohne, 86 Fed. 230, 235, 29 C. C. A. 674.

The first and second instructions given by the court for the plaintiff relate particularly, the first, to the city’s liability generally for failure to maintain its higlrway; and the second, to its duty to the public by reason of the excavation made by it into the street.

The court by the first instruction in effect informed the jury that the obligation uppn the city was to keep its highway reasonably safe for public travel by day or night, and to provide such guards, lights, or barriers or other safeguards as would be ordinarily and reasonably sufficient to protect persons lawfully using such highway in the exercise of proper care. This instruction properly propounds the law, and carefully safeguarded the city’s rights, as settled certainly by authorities of the state of Maryland, and the Supreme Court of the United States, by which this court is governed.

Laws Md. 1898, pp. 244, 310, c. 123, §§ 6 and 86; Mayor v. O’Donnell, 53 Md. 110, 36 Am. Rep. 395; Allegany v. Broadwaters, 69 Md. 533, 16 Atl. 223; Barnes v. Dist. Col., 91 U. S. 540, 23 L. Ed. 440; Rose’s Notes, vol. 8, pp. 723, 724; Evanston v. Gunn, 99 U. S. 660, 25 L. Ed. 306. The cases cited apply as ■well to injuries arising from the city’s negligence in the construction of the work authorized by it, as for an injury arising from the defective condition of its streets. The second instruction relates more particularly to the city’s duty because of the making of the excavation into the street.

The Supreme Court of Maryland, in the case of B. & O. R. R. v.

Boteler, 38 Md. 568, 585, a case in its leading features like the one under consideration, at the latter page, said that: “Tlie defendant was obliged so to construct its bridge and embankment adjoining the highway as not to render the approach to the bridge along the highway dangerous to passengers by day or night, and the failure to perform ihis duty subjects it to liability for the consequences, provided the party thereby injured has used reasonable and ordinary care to avoid the danger.” The city owed the duty generally respecting' its streets as aforesaid, and assumed the duty of safeguarding' the same at the particular locality aforesaid, which was made especially dangerous by reason of the excavation, and this instruction submitted to the jury the question of whether or not, under the circumstances, the city used the necessary and proper precautions to that end, and was properly given.

The third instruction relates to the degree of care required of the defendant in arranging the lights intended to warn travelers of the danger at the place of the accident. An instruction on this subject was proper, as it was one of the controverted points in the case. The driver of the automobile testified that on approaching the excavation some of the lights appeared to be on the right or north side of the road, and one light widely separated from the rest, on the left or south side of the road, and he'drove his machine right through them, and over the precipice.

Another witness, Hayes, testified that the arrangement of red lights was such that one appeared on the left-hand side of the road, and the rest on the right-hand side of the road, “in a line of the continuation of the gutter on the north side of the boulevard.” He further testified that such arrangement was “dangerously misleading.” The fact is that these lights were all on the south side of the road, and none on the north, and were designed as a warning to travelers on the highway against the dangerous locality, and intended to keep them to the right or northern side of the road.

Whether, as a matter of fact, they were so set or placed as to mislead travelers, was a fact to be considered by the jury, and the court, in the instruction under consideration, in apt terms properly submitted the same to them. The fourth instruction offered by the plaintiff and given by the court relates to the doctrine of contributory negligence; that is to say, how far the decedent, John C. Hutchison, was affected or bound by the negligence of Hooper, the driver of the automobile, assuming that he was guilty of such negligence.

The court properly instructed the jury, if they believed from the evidence that the accident was in consequence of the failure of the city to use ordinary and reasonable care to insure the safety of ordinary travel in said highway, in its then condition, that Hooper’s negligence could not be imputed to Hutch-ison, if the latter was himself not guilty of negligence contributing to the happening of the accident which resulted in his death. The correctness of this instruction is conceded in argument, and the same is in accordance with the Maryland authorities. B. & O. R. R. v.

State, 79 Md. 335, 342, 29 Atl. 518, 47 Am. St. Rep. 415. And this is the generally accepted doctrine. 1 Joyce on Damages, § 172; 7 Am. & Eng. Ency. Law, 477, 478; Little, Rec’r, v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Union Pacific R. R. Co. v. Lapsley, 51 Fed. 174, 2 C. C. A. 149, 16 L. R. A. 800; Evans v. Lake Erie & W. Ry. Co. (C. C.) 78 Fed. 782; Smith v. Day, 100 Fed. 244, 40 C. C. A. 366, 49 L. R. A. 108. The fifth instruction offered by the plaintiff and given by the court is as to what is meant by reasonable care, and is free from objection.

And the sixth relates to the elements entitled to be taken into consideration in assessing damages by a jury, which is likewise unobjectionable, and is in accordance with Maryland authorities. B. & O. R. R. v. State, Use of Chambers, 81 Md. 375, 32 Atl. 201; Reisterstown, etc., v. State, Use of Grimes, 71 Md. 584, 18 Atl. 881. Considering the prayers offered !w the defendant and rejected by the court, the first instruction rejected was to the effect that the plaintiff had offered no evidence legally sufficient to entitle the plaintiff to recover, and that the verdict should therefore be for the defendant.

This instruction was manifestly improper, and should not have been given.

No motion was made by the defendant to direct a verdict in its behalf, either at the conclusion of the plaintiff’s testimony or that of defendant, or at any other time, and assuming that this instruction can be treated as in effect such motion, and in that way have the court review the evidence, it may be said that the case was clearly one which should have been submitted to and not taken away from the jury; and, the conflict in the testimony having thus been passed upon, the verdict, which is amply supported by the evidence, in favor of the plaintiff, should not be disturbed, or the judgment of the court thereon set aside.

The second prayer offered by the defendant: and rejected by the court is defective, in that it failed to take into account the dangerous locality of the accident, as also the excavation, and the special danger incident thereto. Undoubtedly, a municipality is not required ordinarily to erect barriers, railings, or other structures to prevent persons traveling upon a highway from slraying therefrom; but it does not follow that the obligation does not exist where the point is dangerous, either naturally, or because of the work being done in and about the highway at the particular time.

Whether the excavation in this case was dangerous, or the railing thereto, or the warning given, were sufficient to protect persons from or warn them of such danger, were questions of fact, all to be determined by the jury upon consideration of the whole evidence. B. &. O. R. R. v. Boteler, 38 Md. 568, 585, supra; Reisterstown Turnpike v. State, Use of Grimes, 71 Md. 573, 18 Atl. 884, supra; B. & O. v. State, Use of Chambers, 81 Md. 375, 32 Atl. 201, supra.

The defendant’s fifth instruction, -which was also rejected, was to the effect that the city was not bound to erect both red lights and barriers to warn persons of any particular danger. That was properly rejected by the court, as the question of what the city should do liad already been submitted to the jury by the previous instructions, and the instruction as drawn and rejected by the court infereutially told the jury that all that the city had to do was to place red lights or erect barriers; whereas both might have been insufficient.

The city was bound to take such precautions as were reasonably necessary to make travel upon the highway safe, and it was for the jury to say whether what was done was sufficient or not.

The issues fairly arising upon the pleadings and the testimony adduced were whether the highway in question was unsafe for night travel by reason of the excavation, whether safeguards necessary to overcome the danger were furnished, whether the barriers and lights were sufficient, whether the latter were deceptively arranged, and whether because of the city’s negligence, without contributory negligence on the part of Hutchison, he lost his life.

These questions were one and all submitted to the jury, upon instructions fairly, fully, and clearly covering the case, and we can see no reason why the verdict under such circumstances, rendered in behalf of the plaintiff, should be disturbed. The judgment of the lower court will accordingly be affirmed, at the cost of the plaintiff in error. ■Affirmed.