75 Md. 38 | Md. | 1891
delivered the opinion of the Court.
The appellee sued the County Commissioners of Harford County to recover damages for the destruction, by reason of the alleged negligence of the defendants,, of a mill-dam owned by her. The dam had been swept away by a flood upon a former occasion, and it was then alleged that the negligent and unskilful location and construction'of a county bridge across Deer Creek had so narrowed the water-way as to cause the bridge to be lifted from its abutments, and to be thrown upon the dam whereby the latter was demolished. . That case is reported in 71 Md., 43. Subsequently the dam was reconstructed and the bridge was rebuilt. — the bridge being elevated somewhat higher above the surface of the stream, and the span being made considerably longer than formerly. In eighteen hundred and eighty-six a trestle, consisting of heavy timbers securely fastened together, was carried down the current and lodged against and upon the new dam. This obstruction remained upon the dam for several weeks, and was then removed. The persons who removed it were obliged to cut away some of the logs forming the ties of the dam, whereby the structure was materially weakened. Ho attempt was made by any one to repair the dam after it had been thus weakened. There is not a particle of evidence in the
To which of these two is the injury attributable ? The declaration does not allege that both combined occasioned it. Each is alleged in a separate count to be an independent cause. The first of them the Court below instructed the jury the appellants were not responsible for, and that ruling is not open for review or question on this appeal. A case is thus presented where the injury complained of must have resulted from one or the
In the case at bar, not only is there no evidence to exclude the probability that the cutting- away of the ties of the dam in the efforts made to remove the trestle, was the direct and only cause that occasioned the destruction of the dam, but the preponderance of the testimony seems to point to*thatfact as the efficient and exclusive cause of the injury. But, be this as it may, there is literally nothing in the record to show that the other cause assigned — the unskilful and negligent location and construction of the bridge — operated of itself, without more, and apart from the first alleged cause, to produce the damage sued for. Whether to the one or to the other cause the injury was referable, was, to put it most favorably for the appellee, a question left by the evidence of the plaintiff in a condition of perfect equilibrium. A verdict for the plaintiff could only have been reached by arbitrarily ignoring ail of the plaintiff’s other evidence which tended to establish the opposite proposition — that is, by exclud
Upon the conclusion of the testimony the defendants asked the Court to instruct the jury, among other things, that there was “no evidence in the case legally sufficient to entitle the plaintiff to recover.” This prayer was refused and the defendants have appealed from this and other rulings. The prayer was a demurrer to the evidence, and raised the question of the right of the plaintiff to recover, assuming all the evidence offered by her to be true. For the reasons we have given, the prayer, in our opinion, ought to have been granted. Had the first count not been in the declaration, and had no proof been offered by the plaintiff to sustain that count, there would have been sufficient evidence under the second count standing alone, to have gone to the j ury on the question of negligence. Or, had the plaintiff confined her case to the second count, and had the defendants relied by way of defence upon the facts which tended to show that the injury resulted from the cutting of the ties of the dam, it would have been the province of the jury to determine which of these two opposite caxxses, the one asserted by the plaintiff, or the other relied on by the defendants, prodxxced the damage. But the case was not presented in that way by the plaintiff. As actually presented, it showed a case devoid of legally-sufficient evidence to convict the defendants of negligence causing the injxxry sued for, and should, therefore, have been withdrawn from the jury.
This conclusion disposes of the case and renders it unnecessary to pass upon the other questions discussed in the argument.
For the error committed hy the Circuit Court in rejecting the defendant’s first prayer the judgment must" he reversed.
Judgment reversed, tvith costs in this Gourt, mid in the Gourt below.