County Commissioners of Harford v. Hamilton

60 Md. 340 | Md. | 1883

Miller, J.,

delivered the opinion of the Court.

This suit was brought by the mother of a minor child whose father had died before the injury complained of. The declaration charges that the defendants were bound to keep the public roads of the county in repair, that one of said roads was negligently suffered by them to be out of repair, whereby George H. Hamilton, the minor son of the plaintiff, in travelling over the same with due care, was hurt and injured, that the father, of said George is dead and the plaintiff, his mother, was and is entitled to his services, and by reason of said negligence of the defendants, and the hurt and injury to her son occasioned thereby, she was deprived of his services,, and suffered great, loss in being so deprived thereof, and was put to great expense, cost and trouble in watching, nursing and waiting on him, and in medical attendance, which she had to procure and pay for, and which was rendered necessary by the hurt and injury aforesaid. The defendants pleaded non cul. and the case was tried on issue joined on this plea.

At the trial the plaintiff proved she was the mother of George H. Hamilton named in the declaration, and that his father died in the year ISTS. She also offered evidence to prove that the road mentioned in the declaration, was one of the public roads of Harford County, and at the time of the alleged injury was out of repair and unsafe for public travel; that her son was then seventeen years of age, able to do the work of a man, was a good farm hand, and was living with and working for her; that on the night of the 6th of August, 1880, while riding over the road-referred to, on a gentle and sure-footed horse, he was, by reason of the bad condition of the road and without any negligence on liis part, thrown from his horse and severely injured, from the effects of which he was confined to his bed for eight or nine months, requiring constant nursing, care and attention, and medicine and medical attendance, all of which were furnished by the plaintiff, and that during all that time, and ever since, he has been unable to do any work.

The defendants then offered evidence to prove that at the time of the injury the road was in good condition and repair ; that there was no unsafe or dangerous place in it at or near where the accident happened, and that it was then and there in safe condition lor public travel. They also offered evidence to prove that at the time of the alleged injury the son was not in the service or employment of his mother, but was working as a farm hand with his brother, on a farm the latter had leased from one Vail, and was earning his own support.

This was all the evidence, so far as the record shows, offered on either side. Several prayers -were then offered on both sides, and to the rulings of the Court upon these, the single exception in the case was taken. The appellants’ counsel have mainly relied upon two objections to these rulings:

1st. They insist that a mother is not, by law, bound to support her minor son after the death of his father, nor is she entitled to his services, and hence there was error in allowing a recovery for such services under the plaintiff’s first and third prayers which were granted. In the case of Keller vs. Donnelly, 5 Md., 217, which was an action by a mother tor the seduction of her minor daughter, per quod, servitium amisil, the Court say: “ The policy of the legislation of this State in regard to females is, that until they are eighteen years of age they are to be considered minors, and where the mother is left the natural guardian she is entitled to her services, unless under the law the girl be apprenticed to serve at some trade or employment until she arrive at age. The Act of 1834, ch. 228, expressly recognizes the mother as the natural guardian of her children, making no distinction between males and females.” And in Coughlan’s Case, 24 Md., 107, which was an action under the statute, in the name of the State for the use of a mother, against a railroad company for the killing of her infant son, it is expressly stated, that “the law entitles the mother to the services of her child during his minority, the father being dead.” But assuming these expressions are obiter dicta and not adjudications of this question, still the appellants’ counsel concede, as they must, that the mother may recover for his services, provided the son was, at the time of the injury, actually living with, supported by, and working for her, and was not living with and working for his brother, and gaining his own support. Now the plaintiff’s first prayer, as we understand it, allows a recovery for his services only upon the finding by the jury that he was so living with and supported by his mother. It states that the plaintiff is entitled to recover if the jury find, among other facts, that the son, “at the time of the injury lived with the plaintiff, and was supported by her, and has ever since so lived with and been supported by her.” Under this instruction the jury could not have found for the plaintiff unless they believed these facts to have been proved, and believing them, and so finding, they must have believed the testimony on that subject offered by the plaintiff, and not that offered by the defendants. Upon their own theory of the law, therefore, we do not see that the defendants have suffered any injury by the rejection of their second and fourth prayers, inasmuch as the jury were hound to find the facts stated in the plaintiff’s first prayer in order to render a verdict in her favor. Again, upon the assumption that they found, as they must have found, that the son was thus living with and supported by his mother, she was clearly entitled to recover for the care and labor of nursing him, and the expense and cost of medicines and medical attendance to which she was subjected on account of his injury, and which she procured for him. We therefore find no error in the rejection of the defendants’ fifth prayer, or in the measure of damages stated in the plaintiff’s third prayer. By the granting of the defendants’ third prayer, the jury were instructed the plaintiff was not entitled to recover for the pain and suffering of her son, nor for her own anxiety and suffering on his account.

2nd. Objection is also taken to the plaintiff’s first prayer because it does not leave to the jury to find that the defendants were guilty of any negligence, but allows a recovery simply on the ground that the road was in bad condition, without regard to how or when it became so, or the efforts that had been made to repair it. The argument in support of this position is in effect, that the bad condition of the road was evidence upon which the jury might find the negligence alleged in the declaration, but it was only evidence, and non constat there was negligence because the road was, at that particular time, in bad condition ; that the duty of the defendants does not require them to keep the roads in good condition at all times and under all circumstances, but to have them repaired as soon as practicable after such repairs are found necessary. And to illustrate this view of the law they offered several prayers, as, for instance, that they would not be held responsible for the action of the elements, and if the jury find that by reason of a storm or freshet, or other natural cause, the road in question was rendered unsafe for travel, the defendants would not be liable for the injury unless the jury found that they neglected to have it repaired in a reasonable time.

The plaintiff’s first prayer, however, is in this respect identical with the one approved by this Court in Gibson’s Case, 36 Md., 230, 237; and moreover, there is no evidence in the record of any circumstance whatever that would exonerate them from liability, even if the appellants’ view of the law, as well as of their duty, were correct. They set up no such defence at the trial, but simply offered evidence to prove that the road, at the time of the injury, was in good condition and safe for public travel. As the case stands upon the record, no other instructions upon this subject were needed than those in the plaintiff’s first and the defendants’ eighth prayer, which was granted, and there was clearly no error in rejecting their first, sixth, and seventh prayers. The plaintiff’s second prayer (which was also granted), that the care and caution required of one travelling on a public road is simply such as persons of common prudence ordinarily exercise, announces a plain legal proposition, and- no objection was made to it in argument.

(Decided 20th June, 1883.)

Judgment affirmed.