(139 Md. 507) (115 A.) HAGERSTOWN & F. RY. Co. v. STATE, for Use of WEAVER. (No. 20.) Argued before BOYD, C. J., and BRISCOE, PATTISON, STOCKBRIDGE, THOMAS, and OFFUTT, JJ. Alexander Armstrong, of Baltimore (Charles (Court of Appeals of Maryland. Nov. 30, 1921.) D. Wagaman, of Hagerstown, on the brief), 1. Electricity 19(4)-Evidence of similar breaking of tree branches held admissible to show decay of tree. Where a large limb of a tree fell across a highway breaking transmission wire of electric railroad which came in contact with wire fence, and the breaking of the limb was not due to a storm, evidence that during the same summer, and prior to the accident, two other limbs of the tree had given away and fallen across the road under similar weather conditions, held admissible, in action for death of boy from contact with wire fence, to show the decayed condition of the tree, and to prove that defendant, by the exercise of reasonable care, could have known of its dangerous condition. 2. Electricity 14(1)-Company required to protect persons using public highway from transmission wires. for appellant. Elias B. Hartle, of Hagerstown (Jos. W. Wolfinger, of Hagerstown, on the brief), for appellee. THOMAS, J. The Hagerstown & Frederick Railway Company in August, 1920, and for several years prior thereto, owned and operated an electric plant at Security, in Washington county, Md., and was engaged in the business of generating and furnishing The current was electric light and power. furnished or transmitted through three hightension "transmission wires" strung on poles, which extended from Security to Smithsburg, in Washington county, Md., and thence along the side of the state road to Waynesboro, Pa. At the point of the accident which gave rise to this suit, about two miles from Smithsburg, the poles of the appellant were located "just inside and adjacent to" a wire fence on the west side of the highway. This fence ran along the side of the highway and under the electric wires of the railway com3. Electricity 14(2)—Company required to pany several rods, and then in a westerly diprotect wires in public highway from fallen rection for some distance along the side of limb of decayed tree. a county road which intersected the state Where a large limb of decayed tree extend-road. On the opposite side of the state road, ed out over public highway occupied by transmission wires of electric railroad, the railroad, in the exercise of its duty, to persons using the highway, was required to have limb removed, though tree was not situated on its right of way, or to exercise proper care to protect its wires from a fall of the limb. A street railroad's duty to persons using public highway occupied by the railroad's transmission wires is to use such degree of care to protect such persons from injury as is commensurate with the great danger. 4. Electricity16(5)-Company held liable for death from wire broken by fallen limb of tree if chargeable with knowledge of decayed condition of tree. which was about 30 feet wide, and standing just inside of the fence on that side of the road, was a large weeping willow tree, from 5 to 6 feet in diameter. A large limb of this tree extended out over the highway, and about 6:30 o'clock in the afternoon of August 16, 1920, the limb gave way and fell across the state road. In falling it struck and broke one of the transmission wires of the railway company, and one end of the broken wire came in contact with the wire fence, which immediately became charged with the electric current. Where large limb of decayed tree extending out over a public highway broke from trunk of tree, causing transmission wire to break, and The crash of the limb was heard by a come into contact with wire fence, the railroad was liable for death of boy from contact with number of persons in the neighborhood, who wire fence if, by the exercise of proper care, it went to the point where it fell to see what could have known that the tree was decayed, had happened. Among them were Mrs. Mary and that the limb would probably fall and A. Weaver and her little son, Vernon Edwin break its wires, and did nothing either to pro- Weaver, about 5 years old, who lived on the tect its wires or protect the public from in-county road mentioned, a short distance from jury that might be caused by a fallen wire, even though the tree was situated on private property. Appeal from Circuit Court, Washington County; Frank G. Wagaman, Judge. "To be officially reported." Suit by the State of Maryland, for the use of Bruce A. Weaver, against the Hagerstown & Frederick Railway Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed. the state road. The bed of the county road was covered with broken stone, and between the side drain and the wire fence referred to was a very narrow path or foothway. The little boy, who was barefooted, in order to avoid the broken stone walked on the path, and as he approached the state road he came in contact with the wire fence, and was instantly killed. This suit was brought by the father of the little boy against the railway company, on the ground that his death was caused by the negligence of the company. 784 The trial of the case in the court below resulted in a verdict and judgment in favor of the plaintiff, and this appeal is from that judgment. During the trial the defendant reserved 16 exceptions to the rulings of the court on the evidence and one to its action on the prayers. The exceptions to the evidence may be considered together. The plaintiff offered evidence tending to show that the tree in question was old and decayed; that where the limb broke from the trunk of the tree it was decayed; that the limb was a very large one, estimated by the various witnesses to be from 10 to 20 inches in diameter at the butt, and extended out over the highway in such a position as to indicate that if it fell it would fall upon the wires of the defendant; that the weather was clear, and that the giving way of the limb was not due to a storm, but to the decayed condition of the tree; that during the summer of 1920, and previous to the day mentioned, two other limbs of the tree had given way and fallen across the road under similar conditions of the weather, and that where they broke from the trunk of the tree the tree was doted or decayed, and that the decayed appearance and condition of the tree could be observed by persons "passing along the highway." the evidence of the falling of other limbs was offered in connection with evidence of the condition of the trunk of the tree where those limbs gave way for the purpose of showing that the tree was decayed. The granted prayers of the plaintiff proceeded upon the theory that, if the defendant knew, or by the exercise of reasonable care could have known, of the dangerous condition of the tree in time to have prevented the accident, then it was negligent in failing to have the limb removed or to protect its wires, while the instructions sought by the defendant asserted, and the contentions of the appellant are, (1) that there was no evidence of negligence on its part, and (2) that, as its poles were planted on its own right of way, and the tree in question was on private property, it had no right to remove the limb, and that no negligence can be imputed to it because of its failure to do so or to adopt any other means of protecting its wires. It is said in 20 C. J. 347: Per "Electric companies are liable for injuries by electric current resulting from their negligence to a person on a public thoroughfare. sons or companies operating systems for the transmission of electricity over public highways owe to the public the duty of properly constructing and maintaining their poles and wires and of exercising for the protection of all persons legally using the highways the high de And in 9 R. C. L. p. 1200, speaking of the care to be exercised, it is said: "The degree of care which will satisfy this requirement varies, of course, with the danger which will be incurred by negligence, and must be commensurate with the danger involved, and, according to numerous decisions, where the wires maintained by a company are designed to carry a strong and powerful current of electric them are certain to be seriously injured, if not [1] The particular part of the evidence re ferred to in the first 16 exceptions is that re-gree of care commensurate with the danger." lating to the falling of other limbs from the tree. That evidence, in connection with the other evidence we have mentioned, was not only admissible for the purpose of showing that the tree was decayed, but also for the purpose of showing that the defendant could, by the exercise of reasonable care, have known of its dangerous condition. The case of Charles v. Mayor, etc., of Baltimore City, decided by this court in May, 1921, and re-ity, so that persons coming in contact with ported in 114 Atl. 565, cited by the appellant, does not sustain these exceptions. There the suit was brought to recover the cost of repairing an automobile which was damaged by being driven against a part of a bridge on one of the streets of the city. The bridge was generally lighted by six arc lights, but just at the time of the accident, owing to the "short-circuiting" of the electric current which supplied these lights, the lights were out. The evidence showed that the short circuit was caused by the extreme condition of the weather that evening, and that within 40 minutes after notice to the city that the lights were out the proper officer was on the ground to repair the lights. The court held that the plaintiff had failed to show any negligence on the part of the city, and that the fact that other accidents had previously occurred at the same bridge was not admissible as reflecting upon the question of negligence of the city at the time of the accident involved in that suit. Here Again, on page 1215 of the same volume, it is said: "The duty of electric companies is not limited to keeping their own wires in the streets and highways in a safe condition, but extends to the exercise of due care and diligence for the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising its rights in the highways in or over which electric wires are suspended, and it is accordingly often held that electric companies maintaining wires carrying (115 A.) heavy charges of electricity are under obligation | ture of the business of transmitting such curto maintain some kind of safeguard to prevent their contact with other wires." rents along highways imposes upon those engaged in it the legal duty to exercise, for the protection of all. persons lawfully using the highways, the high degree of care commensurate with the danger incident to the proximity thereto of the wires charged with their invisible but deadly power." The same rule has been applied and the same degree of care required by the decisions in this state. In W. U. Tel. Co. v. State, Use of Nelson, 82 Md. 293, 33 Atl. 763, 31 L. R. A. 572, 51 Am. St. Rep. 464, a child about 11 years of age was killed while on one of the streets of Baltimore city by coming in contact with a broken telephone wire attached to a pole of the telegraph company, the end of which passed over or around the feed wire of the City & Suburban Railway Company, and extended to the pavement below. The broken telephone wire did not belong to the telegraph company or to the railway company, but it had been allowed to remain in that position about two weeks. In the course of the opinion this court, speak-highway were exposed by reason of the coning through Judge Page, said: "Both of the defendants were using the streets under the permission of the state and municipal authorities, for purposes of private gain, by means of agencies such as could and would become dangerous to human life if not properly and carefully employed. The railway company pursued its business by means of cars propelled by electricity, partially supplied through feed wires over and along the edge of the pavement. The telegraph company had its poles also along the curb line, and its wires extending along the street were over and along the feed wire, which, though insulated, carried a deadly current. * They owed it to Nelson that his lawful use of the street should be substantially as safe as it was before the telegraph and railway plants had so occupied it. It was their plain duty, not only to properly erect their plants, but to maintain them in such condition as not to endanger the pub [2-4] In the light of these well-settled principles it becomes apparent that the court below properly refused to withdraw this case from the jury. The high degree of care required of such companies must be exercised not only in the construction, but also in the maintenance, of their plants. The fact that the appellant's poles were planted on its own private right of way did not relieve it of the duty to use that degree of care commensurate with the danger to which those using the struction and maintenance of its high-tension wires. The obligation of such companies to exercise proper care is not determined by their right to construct and maintain their lines, but rests upon their duty to protect others while in the lawful exercise of their rights. As we have said, there was evidence tending to show that the appellant by the exercise of proper care could have known that the tree was decayed, and that the limb that gave way would probably fall and break its wire, and that it did nothing either to protect its wires or to protect the public from injury that might be caused by a fallen wire. To hold that the appellant was relieved from all obligation or duty to the public simply because the tree stood on private property would deprive those lawfully and properly using the highway of the protection they were entitled to. If electric companies are negligent in permitting broken wires to remain in contact with their high-tension wires, and are liable for injuries resulting from such negligence, as in Nelson's Case, supra, there is greater reason why they should be held liable for injuries resulting from maintaining their lines so close to a decayed tree as to endanger those in the lawful use of a highway. The appellant's line was on its private right of way where the appellant had a right to construct and maintain it. But it was also along a public highway, where the public and the little child that was killed had whether it fell before at the time of its a right to be, and the company was therecoming in contact with the boy," said: lic." Nelson's Case was approved and followed in Brown v. Edison Elec. Co., 90 Md. 400, 45 Atl. 182, 46 L. R. A. 745, 78 Am. St. Rep. 442, and in Walter v. Baltimore Elec. Co., 109 Md. 513, 71 Atl. 953, 22 L. R. A. (N. S.) 1178. In Walter's Case a boy 8 years old was injured while passing along one of the streets of Baltimore city by coming in contact with a hanging wire, and the court, after stating that the evidence did not show the existence of any "sudden or unforeseen cause for the falling of the wire, nor show "The recent widespread adoption of overhead wires upon public streets for the transmission of high-tension electric currents for supplying light and power has been followed by numerous injuries to persons who have come in contact with broken and fallen wires. The series of damage suits flowing from these accidents has called for frequent consideration by the courts of the reciprocal rights and duties of the public and the owners of those dangerous instrumentalities. The courts agree that, outside of any contractual relation, the very na fore required, in maintaining its line, to exercise that high degree of care commensurate with the danger to which it exposed those using the highway. If the proximity of its line to the decayed tree rendered the highway unsafe for the use of the public, it was the duty of the appellant either to have the limb removed or to exercise proper care to protect its wires, and, if the injury complained of was the result of its failure to discharge that duty, it should be held liable. In the cases of City of Albany v. Water vliet T. & R. R. Co., 76 Hun, 136, 27 N. Y. Supp. 848, and Electric Railway Co. v. Shel ton, 89 Tenn. 424, 14 S. W. 863, 24 Am. St. Rep. 614, the facts were entirely different from the facts in the case at bar, and the decisions in those cases do not sustain the contentions of the appellant in this case. Finding no reversible error in any of the rulings of the court below, the judgment from which this appeal was taken must be affirmed. Judgment affirmed, with costs. (139 Md. 450) NICHOLS et al. v. MEYER. (No. 25.) (Court of Appeals of Maryland. Nov. 17, 1921.) 1. Appeal and error 500 (3)-Exception not showing objection or motion to strike calling for a ruling not considered. An exception, complaining of an alleged "ruling" of the court permitting a witness to testify about a certain matter, but not showing any objection to the question, or any motion to strike it out upon which the court could rule, cannot be considered. 2. Appeal and error 714(5)-Appellee's recognition of exception as valid cannot authorize its consideration. Where an exception does not show any objection or motion to strike calling for any ruling by the court, the fact that appellee in his brief treats it as a valid exception cannot supply a ruling where none was made, so as to authorize consideration of the exception. 3. Trial 96-Motion to strike answer which was admissible in part properly overruled. In an action for trespass in taking possession of a business owned by plaintiff, plaintiff's testimony, in answer to a question, that he went to defendant's place of business and asked for defendant, and talked with a man whom he did not know, but who came in response to his inquiry, and that they had a certain conversation, was admissible in part, and an objection to the entire answer, even if treated as equivalent to a motion to strike out the answer, was properly overruled, where it went to the entire answer. 4. Appeal and error 1051(1) Testimony not harmful where same facts proved by witnesses for other party. Plaintiff's testimony concerning a conversation had with a person whom he did not know at defendant's place of business, could not have injured defendant, where the facts stated in such conversation were afterwards sworn to cy defendant's witnesses. 6. Trespass ~45 (5)—Evidence of station in life admissible on question of exemplary damages. In actions for trespass de bonis, where the declaration charges that the tortious act was willful, reckless, wanton, malicious, or fraudulent, evidence of defendant's financial standing fluence and station in life, and considered in may be admitted to inform the jury of his inallowing exemplary damages. 7. Trespass 40 (5)-Declaration held sufficient to warrant exemplary damages. A declaration, alleging that defendants with force and arms broke and entered plaintiff's storehouse and seized and took possession of his goods and chattels, was sufficient to characterize the act as a wanton and willful invasion of plaintiff's rights so as to warrant exemplary damages. 8. Exceptions, bill of 20-Exception containing several questions and answers without showing which was objected to not considered. An exception covering a number of questions and answers, some asked by the court and some by counsel, without specifying any particular question or answer to which the objection was meant to relate, is too vague and indefinite to present anything for consideration. 9. Appeal and error ~272(1)—Exception after verdict cannot be considered as exception to court's action in permitting jury to take documentary evidence. Where no objection was made or exception noted while the jury was at the bar to the court's action in permitting the jury to take documentary evidence to the jury room, an exception, filed after verdict, requesting a new trial because of such action, cannot be considered an exception to the court's action in permitting the document to be taken, but only as an exception to the refusal of a new trial, though the excepting party and his counsel were absent from the courtroom at the time of the jury's request and the court's action there on. 10. Appeal and error 975, 978 (3)-Permitting jury to take document, and refusing new trial because thereof, held discretionary. The action of the trial court in permitting the jury upon its request to take documentary evidence to the jury room, and its action in refusing a new trial because thereof, involve an exercise of discretion which will not be reviewed. 11. Appeal and error 232(3)-Instruction not reviewed for lack of evidence when objection not made on that ground. 5, Under Bagby's Code Pub. Gen. Laws, art. 89, the question whether an instruction allowing the jury to award punitive or exemplary damages should have been refused for want of evidence to sustain it will not be considered, 5. Trespass 56-Exemplary damages allowa- where no special objection to it was made on ble for willful wrong. In actions for trespass de bonis, where the wrongful act was willful, reckless, wanton, malicious, or fraudulent, exemplary damages may be allowed. that ground in the trial court. Appeal from Baltimore City Court; John J. Dobler, Judge. "To be officially reported." (115 A.) Action by William C. Meyer against Frank [ place over.'" That they went out and came N. Nichols, trading as Frank Nichols Com- back and told her "they took over all that pany, and another. From a judgment for stuff for the bill." That they gave her a plaintiff, defendants appeal. Affirmed. paper to sign, and that although she did not know what it was she put her mark on it. Hoy's version of what occurred can be best understood by quoting a part of his testimony in which he said: Argued before BOYD, C. J., and THOMAS, PATTISON, URNER, STOCKBRIDGE and OFFUTT, JJ. J. Abner Sayler, Jr., of Baltimore, for appellants. George S. Yost, of Baltimore (Stephen P. Campbell, of Baltimore, on the brief), for appellee. OFFUTT, J. This is an appeal from a judgment of the Baltimore city court in favor of the appellee in an, action of trespass de bonis asportatis, brought by him against the appellants. "I walked into Mrs. Meyer's house-she knew who I was and knew Lambie. I said: 'Mrs. Meyer, I would like to know what you are going to do about the place? Well, she was all excited, and she said: 'I don't know. I would like to pay you that money, but I have not got one cent.' I said: 'I understand they are going to close the place up, and you certainly ought to have notified us. If you are going to sell it, you ought to notify us who you are going to sell it to.' And she said: 'I don't know anything about it. The way that The facts which are material to the inquiry place is being run I am not getting a cent of before us may be thus summarized: money, and it is setting me crazy.' And she William C. Meyer on March 9, 1917, open-place.' I said: 'Mr. Lambie, here, he is willing went on crying, and said: 'We have to sell the ed a small cigar store at 1601 N. Gilmor to buy the place of you.' And she said: 'Mr. street, in the city of Baltimore, where he Hoy, you do anything you want, just so you sold cigars, candy, and school supplies, and pay that bill and clear my boy's name, Willie,' in connection with that business operated and started crying, 'just so you clear his name; a public pool table. This store which he he was a good boy; do anything to clear his rented was furnished with the equipment name.' I said: 'Of course, the place don't and supplies usually found in a place of its belong to me, and I am only here to see what he size and character. In November, 1918, hav- will do;' and then he suggested-I asked him ing been drafted in the army, he employed $50. I turned to Mrs. Meyer, and said: 'You then how much he would give, and he said his brother Raymond Meyer and a certain realize the fact you owe the firm $66.09. Now, John Wall to run the place until his return. if you sell the place I expect you to pay us They continued to carry it on in his absence the bill, and $50 is not going to pay the bill.' until they were deprived of its possession She said: 'No; that is true, but with the help under circumstances referred to below, al- of God, I will pay you the balance of your though because Raymond Meyer was a minor money some day.' I said: "That is very nice the licenses for the place were in the name of you to do that, and we will see what we can do in this matter.' And she said: 'Mr. of Frank Meyer, an older brother. When Hoy, as I told you, do anything you want, Wm. C. Meyer left he owed Frank N. Nic- anything you wish; you go ahead and do it.' hols, a tobacconist, a balance of $41.96 for I said: 'Mrs. Meyer, I don't want to do anytobacco, cigars, and cigarettes. That bal- thing that is not agreeable to you.' I said: ance was increased by purchases during his 'Here is the case: This young man will take absence until February 12, 1919, it amount- the place over and will give you $50, and will ed to $66.09. The testimony of the appel- go further and give $5 for the use of the lilants is that these purchases were made by Mrs. Meyer, while that of the appellee is that they were made by Wall and Raymond Meyer. At that time Thomas H. Hoy, a salesman for Nichols, went to Mrs. Annie Meyer, the mother of the appellee, with Lloyd L. Lambie, in reference to this indebtedness. Mrs. Meyer, who was then about 63 years of age, was a janitress in one of the city schools, and was partially dependent upon the appellee for her support. She was unable to read or write, and on the occasion of her interview with Hoy and Lambie was just recovering "from a spell of sickness." The testimony as to what took place at that interview is conflicting. Mrs. Meyer said she told them she did not have any money, but she thought she would be able, with the appellee's assistance, to pay the bill later, and that then "they stood there cense. Now, if you want to you can let him the $55 and leave a balance of $11.09.' pay us that money and credit your account with She said: 'Anything whatever you wish.' There was no paper drawn up; no paper put in evidence of any kind that night. That was all that was said or done." After that Lambie testified that he paid the $55 to Nichols' bookkeeper, and took possession of the appellee's place with its fixtures and supplies, and continued to operate it until William C. Meyer was discharged from the army and returned to his home. Meyer, who then learned for the first time of what had been done, went to Nichols' place of business and inquired for. him, and he asked the person who came in response to that inquiry "why they took" his place, and was informed that "They used the fixtures for payment of the |