President of the Baltimore v. State

| Md. | Jun 23, 1885

Miller, J.,

delivered the opinion of the Court.

In this case the appellant corporation was indicted for permitting its turnpike road to fall into such a ruinous and defective condition for want of due repair, in the places specified in the indictment, as to amount to a public nuisance. There was a demurrer to the indictment which was overruled. The case was then tided upon the plea of not guilty, and the jury rendered a verdict of guilty. In the course of the trial, exceptions were taken by the traverser to certain rulings of the Court, and this appeal has been taken therefrom, under the Act of 1812, ch. 316 as modified by the Act of 1884, ch. 132. This law provides that no judgment shall be rendered against the accused, if found guilty, until this Court shall have determined upon' the exceptions. There has therefore been no final judgment in the case, and the questions arising upon the demurrer are not now before us for review. Kearney vs. State, 46 Md., 422 ; Forwood vs. State, 49 Md., 538 ; Johns vs. State, 55 Md., 350. We have sometimes, at the request of counsel on both sides, passed upon the demurrer under such an appeal, but here counsel for the State have declined to unite in such request, and have insisted that the exceptions alone shall now be considered and determined. We shall therefore follow, in this case, the strict line of duty prescribed by the statute, and our own previous decisions to which we have already referred.

The exceptions are fifteen in number. The defect in the road, which, it is alleged, constituted the nuisance, and which the State sought to establish by its proof, is the same as that relied on in the civil suit we have just decided, of Crowther against the same corporation, and of course what has been said in that case must govern the determination of the same or similar questions arising in this.

1st. In the first, third, fifth and sixth exceptions the same question is presented as that presented by the first exception in Crowther’s Odse and the rulings in these exceptions are affirmed for the reasons there stated. It may be added that it does not appear that the questions allowed to be put in some of these exceptions were ever answered or how they were answered, and to these the remarks made by this Court in Lawson vs. Price, 45 Md., 133, are directly applicable. The Court in that case said: “ The question allowed to he put to the witness is excepted to, hut the answer which may have been wholly unimportant or immaterial, is not given. Before we can reverse the ruling excepted' to we must he able to see that the party really has ground for exception, and may have been injured by what was done. For aught that appears, the answer of the witness may have been more favorable to the appellant than to the appellee.”

2nd. The rulings in the seventh, tenth, and twelfth exceptions are the same as those affirmed in the fourth and fifth exceptions in Growther’s Gase, and are therefore also affirmed for the same reasons.

3rd. We find no substantial error in the ruling in the second exception. The Court allowed a witness to prove the condition of the whole width of the road (fifty-seven feet) in a certain locality within the limits described in the indictment, hut what his testimony as to its condition was, whether favorable or not to the traverser, nowhere appears. There can he no reversal on account of this ruling because there is nothing to show that the traverser was in any way prejudiced thereby.

4th. In the eighth exception the Court refused to allow the corporation to prove that it would be enormously expensive to remedy the alleged grievance of the difference in level between the artificial and side roads by grading down the former or filling up the latter. It is no answer to an indictment for a nuisance that the corporation, through whose neglect of duty it existed, is pecuniarily unable to abate it. Winship vs. Enfield, 42 N. H., 197; Erie City vs. Schwingle, 22 Penn., 389. Besides, we have said in Growther’s Case that such differences in level may be permitted'to exist in certain localities, provided the dangerous places are properly safe-guarded. This ruling is therefore affirmed.

5th. Nor do we find any error in the ruling made in the eleventh exception. The locality of the nuisance, as described in the indictment, is between the twelfth and sixteenth mile-stones, on the road out from Baltimore City. The license from the Governor, dated the 19th of March, 1810, which the Court refused to admit in evidence, permits the company to erect toll-gates, and describes that part of the road to which it relates, as completed in a workmanlike manner agreeably to the provisions of the charter. But it covers a portion of the road commencing from the end of the twenty miles already licensed. It is plain therefore that this license refers to a portion of the road many miles distant from that in which the indictment charges the nuisance to he. Such a license was clearly irrelevant and inadmissible in evidence in this case-

6th. The thirteenth, fourteenth and fifteenth exceptions, were taken to the refusal of the Court to grant certain instructions to the jury asked for by the traverser’s counsel. This is a criminal case, and it is enough to say in reference to these exceptions, that according to the settled law and practice in this State, the Court is not bound to instruct the jury (they being by a Constitutional provision made the judges of both law and fact in criminal cases,) and rarely or never does, except upon consent and request of counsel, both for the State and the accused, or the jury themselves. Wheeler vs. State, 42 Md., 569 ; Broll vs. State, 45 Md., 360 ; Forwood vs. State, 49 Md., 537. These rulings are therefore affirmed.

7th. This leaves for consideration the fourth and ninth exceptions, and we have purposely left them to the last, because we are constrained to hold that there is error in each of them.

In the fourth the Court allowed evidence to go to the jury that at a certain place in the road within the locality covered by the indictment, it was not possible to drive across the whole space or width of the road of sixty-six feet with a wagon transversely from one side to the other. We have said in Growther’s Case it was not incumbent upon the corporation to keep this whole space perfectly level at every point. But from this evidence which the Court permitted to go before them the jury may well have thought that such was the obligation imposed upon the company by their charter, and that the road was a nuisance if not thus kept level throughout its entire breadth and in every place. This ruling is therefore reversed.

In the ninth exception the Court permitted evidence to go to the jury that it was impossible for a loaded hay-wagon of the kind sometimes driven upon this turnpike, and any other vehicle drawn by horses to pass each other on the artificial road of twenty or twenty-two feet in width. There may have been other evidence not appearing in the record which would have justified the Court in allowing this to be given, or the exception may have been by inadvertence so drawn as not to present correctly the actual ruling made by the Court; but as it stands, the allowance of this evidence carried with it to the jury a practical declaration that the company was bound to construct the macadamized part of the road of sufficient width to accommodate the passing by other vehicles, of hay-wagons loaded to an extraordinary and unusual, and in fact to any possible breadth that a load of hay on any sort of wagon could be made to extend. We do not think their charter imposes any such duty upon the company, and this ruling is therefore reversed.

(Decided 23d June, 1885.)

While all the other rulings are affirmed, the reversal of these two requires the case to he re-tried.

Rulings affirmed in part, and reversed in part, and cause remanded for a new trial.