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all proof of death called for should have by the condemnor after the rendition of a verbeen furnished, and that no action at law or dict on exceptions to an award of appraisers, in equity should be brought or maintained but before judgment rendered on the verdict,

and before title to the land condemned had arising out of a membership or benefit certifi-passed out of the owners. cate unless brought within one year from the Ed. Note.-For other cases, see Eminent time when that right of action accrued. In Domain, Cent. Dig. $$ 451–456; Dec. Dig. § Bacon on Benefit Societies (3d Ed.) $ 443, it 167.*] is said, the contract of insurance being a Appeal from Circuit Court, Washington voluntary one, the insurer has the right to County; M. L. Keedy, Judge. designate the terms upon which they will be “To be officially reported.” responsible for losses, and a condition that Condemnation proceedings by the Western no action against an insurer shall be sustain- Maryland Railway Company against Jeptha ed unless commenced within a certain time E. Pitsnogle and another. From an order is valid; and the same principle is thus stat- overruling objections to the dismissal of the ed in 29 Cyc. 216:

proceedings after verdict, on exceptions to an “The constitution, by-laws, or certificate gen- award of appraisers but before judgment, deerally provide that an action must be brought fendants appeal. Affirmed. to recover benefits within a specified period, shorter than that prescribed by the statute of

See, also, 119 Md. 673, 87 Atl. 917, 46 L. R. limitations applicable to such an action, and A. (N. S.) 319. such provisions are valid so as to bar an action Argued before BOYD, C. J., and BRISCOE, not brought within such time."

BURKE, THOMAS, PATTISON, URNER, This is the doctrine announced by the Su- and CONSTABLE, JJ.

, preme Court of the United States in the leading case of Riddlesbarger v. Insurance Co.,

Harry Brindle and Frank G. Wagaman, 7 Wall. 386, 19 L. Ed. 257, and followed by

both of Hagerstown, for appellants. Benjamin the great majority of adjudications of the A. Richmond, of Cumberland, and Charles A. question since. See, also, Modern Woodmen Little, of Hagerstown, for appellee. of America v. Bauersfeld, 62 Kan. 340, 62 Pac. 1012.

CONSTABLE, J. The question in this apIt is, of course, true that the limitation of peal involves the right of a condemning party time for the commencement of suit might be to abandon condemnation proceedings, instimade so short as to be entirely unreasonable; tuted under chapter 117 of the Acts of 1912, but that cannot be said of the period fixed after the rendition of the verdict of the jury, by the by-law here involved. In mauy in-on exceptions to award of the appraisers but stances an even shorter period of time has before judgment on the verdict. been sustained by the courts as being a has once been before this court, and is rereasonable regulation.

ported in 119 Md. 673, 87 Atl. 917, 46 L. R. A. We therefore concur with the action of the (N. S.) 319, which was an appeal by the aplower court in granting the prayer directing pellants herein from the judgment of condema verdict for the defendant, and the judg- nation, which judgment was affirmed by this ment appealed from will be affirmed.

court. Judgment affirmed, with costs.

The appellee filed its petition against the appellants, in which it alleged that it “de

sires to acquire the said parcel of land to be (123 Md. 667)

used for the purpose of locating its railroad PITSNOGLE et ux. v. WESTERN MARY- tracks, switches, yard tracks, and side tracks LAND RY. CO. (No. 40.)

on part of the same, and for the lo(Court of Appeals of Maryland. June 26, cation of a substitute private road on the re1914.)

mainder thereof in place of the existing priEMINENT DOMAIN__(8 167*)–CONDEMNATION vate road which the petitioner desires to PROCEEDINGS DISMISSAL STATUTES

close and to use for railroad purposes, said REPEAL.

Code Pub. Civ. Laws, art. 26, § 30, pro- private road being known and designated as vides that in condemnation proceedings the the 'Startzman road,' all of which abovecourt shall render judgment against the per- described parcel of land it will be necessary sons or corporations for whose use the condemnation may be made, in favor of the own- for the petitioner to have and use for the ers named in the requisition, for the damages said purposes for the proper working and opawarded, and unless, within 90 days after con- eration of its said railroad, and for the propdemnation ratified, the same shall be aban- er handling of its railway business, and for doned by written notification to the owners, execution may issue on the judgment. Acts

said road in perpetuity.” 1912, c. 117, relating to the same subject, con- After the affirmance of the judgment of tains no provision for abandonment of the pro- condemnation, and upon the cause being receedings when once begun, but enacts a new manded, further proceedings were taken unprocedure to acquire property through the power of eminent domain, and repeals only incon- der the provisions of chapter 117 of the Acts sistent prior legislation. Held, that the act of of 1912. Appraisers were appointed as pro1912 was not inconsistent with the former vided by said act, and upon their return exprovisions, and did not repeal the same, and hence proceedings to condemn land for a rail-ceptions were filed thereto by the appellants road right of way could be properly abandoned without waiving a jury trial. The same were



*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tried in court before a jury on the 13th day as to the correctness of this rule, but, as to the of December, 1913, and a verdict assessing time when the rights of the parties become the damages at $4,000 was returned. On the vested, there is a diversity of opinion. There

to the the 16th day of the same month the appellee filed demning party to abandon the proceedings, a motion for a new trial. During the penden- where they have not been confirmed or concy of this motion, but before it was heard, summated. It may do so at any time prior

to the confirmation of the commissioners' reon the 9th day of January, 1914, the appellee port, after the assessment of damages has been filed in the case four papers: (1) An order made, and the award has been filed, and either dismissing the motion for a new trial. (2) before the submission of the inquiry to a jury An order releasing the judgment of condem- or after verdict and prior to judgment.' nation. (3) An order dismissing, abandoning, After pointing out that the New York rule and nonprossing the original petition filed by is that the proceedings cannot be abandoned the appellee in the case. (4) Notice to the after the commissioners' report has been con appellants that the appellee had abandoned firmed, and that rule is substantially the the proceedings to condemn their land and same in Louisiana, Nebraska, New Hampall intention of proceeding with said condem- shire, New Jersey, and Pennsylvania. The nation. This notice was duly served upon same authority adds: the appellants.

“Opposed to the New York rule is the contraThe appellants filed a motion "ne recipia- ry doctrine which obtains in the great majority tur” to the above notice, and each of the or- dictions the test laid down is to inquire wheth

of the states in this country. In these jurisders, except the motion to dismiss the motion er the title to the land has vested in the confor a new trial, and further moved the court demning party, and a right to the damages in to enter judgment upon the verdict of the the landowner, and the discontinuance of the jury. The court overruled all of the motions of that event, which does not occur prior to

proceedings is permitted until the happening of the appellants, and thereupon this appeal the actual payment or securing of the compenwas prayed.

sation in the manner required by law, or until At the hearing of the above motions, testi- the condemning party has entered into posmony was taken, from which it appears that session of the land. In these jurisdictions the

company may abandon the proceedings at any the right of way called the "Startzman road” time before final judgment, or after affirmled into the Startzman farm over the land of ance of the verdict in favor of the landowner, the appellee; that the Startzman farm had or after judgment assessing the damages, or

" been purchased by the appellee subsequent even after appeal from the judgment. to the time of entering the judgment of con

Under these general rules, if nothing to the demnation and before the appeal first taken contrary appeared in our decisions or statin this case.

It was further shown that the utes, the appellee would have the right to plan of the appellee for its yard, side tracks, abandon its proceedings, and the appellant etc., was partly carried out upon its own would not be entitled to a judgment on the land, but upon no part of the land sought to verdict; there then remaining nothing of the be condemned; that a portion of the right of case to support a judgment. But let us briefway had been rendered impassable by the fill | ly examine our statutes and decisions. of dirt placed thereon. It was also shown This court in Graff v. Baltimore, 10 Md. that the appellee did not at any time take 544, following the case of Baltimore & Suspossession of any part of the land described quehanna R. R. Co. v. Nesbit, 10 How. 395, in the condemnation proceedings nor enter 13 L. Ed. 469, which was a case upon the thereon.

Maryland statutes, adopted the language of The right of abandonment by a condemn the Supreme Court: ing party of condemnation proceedings insti- "It can hardly be questioned that, without tuted by it has been the subject of much liti- acceptance by the acts and in the mode pre

scribed, the company were not bound; that if gation in this country, and, before discussing they had been dissatisfied with the estimate the decisions and statutes in force in Mary- placed upon the land, or could have procured land, it might be well to quote what is so a more eligible site for the location of their forcibly stated in 7 Enc. Pl. & Pr. 673, to be road, they would have been at liberty, before

such acceptance, wholly to renounce the inthe general rule:

quisition. The proprietors of the land could "A railroad company which, in the exercise have no authority to coerce the company into of the right of eminent domain, has instituted its adoption. This being the case, there could, condemnation proceedings may subsequently up to this point, be no mutuality, and hence abandon its purpose of taking the property no contract, even in the constrained and comand discontinue the proceedings, and, if it so pulsory character in which it was created and desires, may select a route other than the one imposed upon the proprietors by the authority first proposed. Where the condemning party of the statute.” considers the compensation assessed too high, or so high as to render it expedient to go

These decisions were followed in State v. around instead of through the tract, it may Graves, 19 Md. 351, 81 Am. Dec. 639; Mer. abandon the proceedings, and leave the land- rick v. Baltimore, 43 Md. 219; Norris v. Bal. owner undisturbed.”

timore, 44 Md. 604; Baltimore v. Musgrave, The same authority at page 674 says: 48 Md. 282, 30 Am. Rep. 458; Black v. Balti"The general rule, in the absence of statu- more, 50 Md. 241, 33 Am. Rep. 320; Baltitory provisions to the contrary, is that the con- more v. Hook, 62 Md. 371. demning party may discontinue the proceedings at any time before the rights of the parties

In Norris v. Baltimore, supra, the court have become vested. There is not even a cavill thus expressed the rule:


"It has long been the settled law of Maryland | the rendition of such judgment by written that both private and municipal corporations, notice. The act of 1912, like the prior conwhen authorized to exercise the power of eminent domain, have the right to renounce the demnation acts, contained no provision for inquisition and select a more eligible route, or the enforcement of a judgment, and like to wholly abandon the improvement or enter- those acts is dependent upon section 30, art. prise, at any time before actual payment of 26 (which is codified, not under the head of the amount assessed, either by commissioners or jury, and until that time no title to the eminent domain, but under that of courts), property condemned vests in the corporations." for the full completion of the proceedings.

Under these Maryland authorities, as well Our opinion is that the provisions of section as under the general rule stated in Enc. Pl. 30, art. 26, are not inconsistent with the & Pr., it is clear that the test is whether or provisions of the act of 1912, and that therenot the title to the land has vested at the fore said section is not repealed by said act time in the condemning party.

but is still in force. By chapter 371 of the Acts of 1870, codified We cannot agree that the appellants, when section 30, art. 26, of Bagby's Code, it is pro- admitting, for the sake of argument, that vided:

section 30, art. 26, has not been repealed by "In all cases of proceedings to condemn lands. the act of 1912, contend that said section for any purpose whatever, under any law or makes it mandatory upon the court, when charter, upon the return and ratification of it directs the entering of a judgment after

in cases in which inquisitions may have been here- the assessment of the damages. If the law tofore returned and ratified, the said court of this state permits a condemnor to abanshall render a judgment against the person or don and dismiss the proceedings before a corporation for whose use the condemnation may be so made in favor of the owners named judgment is finally rendered, as we are of in the requisition for the amount of the dam- | the opinion it does, we can see no way in ages awarded by the jury, and unless within which a judgment can be entered, for there ninety days after condemnation ratified the is nothing for a judgment to rest upon; all same shall be abandoned by written notification to said owners, execution may immediate prior requisites to it being dismissed. ly thereafter issue on said judgment, as in

The further contention of the appellants other cases of judgments rendered in courts of that the appellee is in duty bound to pro

vide a substitute road for the Startzman Chapter 117 of the Acts of 1912 does not road is not presented under the facts conin terms repeal any of the prior legislation tained in this record. It must be borne upon condemnation, except wherein the in mind that the proceedings in this case same may be inconsistent with the provi- did not ask for the condemnation of the sions of that act. The inquiry now is: Has rights of any one in the Startzman road, the act of 1912 rendered nugatory the prior but covered a tract of land separate and disdecisions and repealed section 30 of article tinct from said road. The improvements, so 26? Nowhere in the act of 1912 is there any far as the land sought was concerned, were provision whatever made for abandonment of abandoned, and the land not taken nor enthe proceedings when once begun. This in tered upon by the appellee. Therefore the itself would be at least an indication of the appellants' title to the sought land has not intention of the Legislature that they did been affected by the condemnation proceednot intend, by the enactment of a new pro- ings. If, however, any rights the appellants cedure to acquire property through the pow. might have had in the Startzman road have er of eminent domain, to change the long- been affected by the taking of a portion of settled rule upon the question. But is sec- that road by the appellee for its uses, they, tion 30 of article 26 inconsistent with the of course, have an adequate remedy. provisions of the act of 1912?

The cases cited and relied upon by the Under the law prior to the enactment of appellants in support of their contention the act of 1870, there was no provision for | (N. C. R. R. Co. V. Baltimore, 46 Md. 425; a judgment upon which an execution could Eyler v. County Commissioners, 49 Md. 257, be based, but merely a ratification of the 33 Am. Rep. 219; and Baltimore City v. inquisition, and the land proprietor was at Cowen, 88 Md. 447, 41 Atl. 900) are all disthe mercy, to a certain extent, of the continguished from the present case on the dlemnor until the title to the property passed facts, for in them the court was dealing by either the payment of the damages as- with cases where easements were sought to sessed or tender thereof. This act provided be acquired, where prior easements already a remedy for the landowner in that he was existed, whereas no rights in the Startzentitled to a judgment "in personam" and man road were sought to be acquired by execution for the same, unless the proceed- these proceedings. ings were abandoned within 90 days after Order affirmed, with costs to the appellee.

91 A.-53

(124 Md. 11)

claimed was so covered with lime dust as to SECURITY CEMENT & LIME CO. v. BOW- appear solid, evidence as to an experiment made ERS. (No. 44.)

by a witness, apparently with the object of

showing that a sack would sag under the cir(Court of Appeals of Maryland. June 26, cumstances, was not admissible, where it was 1914.)

not shown that the hole was the same size as 1. *

— TIONS FOR INJURIES-QUESTION'S FOR 'JURY. sacks were of the same stiffness, especially as,

In an employé's action for injuries, caused there being positive evidence as to the actual by stepping in a hole in the cover of a screw conditions, it would not seem that such evidence

could have had any material effect. conveyor, over which was a sack which it was claimed was so covered with lime dust as to ap

[Ed. Note. For other cases, see Evidence, pear solid, evidence held to make question for Cent. Dig. $ 439; Dec. Dig. $ 150.*] the jury as to the employer's negligence and

Appeal from Circuit Court, Washington plaintiff's contributory negligence.

[Ed. Note. For other cases, see Master and County; M. L. Keedy, Judge. Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010

"To be officially reported." 1015, 1017-1033, 1036-1042, 1044, 1046-1050, Action by Wesley Eugene Bowers against 1089, 1090, 1092-1132; Dec. Dig. S$ 286, 289.*] the Security Cement & Lime Company. From 2. MASTER AND SERVANT ($_90*)—LIABILITY a judgment for plaintiff, defendant appeals. FOR INJURIES-DUTIES OF MASTER.

Affirmed. A master must exercise ordinary and reasonable care to avoid unnecessary injuries to

Argued before BOYD, C. J., and BURKE, his servant in the course of his employment. THOMAS, PATTISON, URNER, STOCK

[Ed. Note.-For other cases, see Master and BRIDGE, and CONSTABLE, JJ. Servant, Cent. Dig. § 139; Dec. Dig. § 90.*] 3. MASTER AND SERVANT (8 103*)-LIABILITY both of Hagerstown, for appellant.

Wm. J. Witzenbacher and J. A. Mason,


A master's duty to provide and maintain G. Wagaman, of Hagerstown (Wagaman & safe machinery and appliances and a reason- Wagaman, of Hagerstown, on the brief), for ably safe place for the work undertaken by the servant cannot be delegated.

appellee. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $ 175; Dec. Dig. 8 103.*] BOYD, C. J. [1] The appellee sued the 4. MASTER AND SERVANT (88 101, 102*)—LIA- appellant for injuries sustained by him as BILITY FOR INJURIES-DUTIES OF MASTER. the result of the alleged negligence of the

A master who employs another to enter his appellant. The appellant was engaged in service impliedly engages with him that the the manufacture of lime and other products place in which he is to work and the tools or machinery with which he is to work, or by from crushed stone in Berkeley county, W. which he is to be surrounded, shall be reason- Va. At the plant of the defendant, there ably safe.

were two hydrated tanks and two ground [Ed. Note. For other cases, see Master and lime tanks standing in a row, each of which Servant, Cent. Dig. 88 135, 171, 174, 178–184, 192; Dec. Dig. $$ 101, 102.*]

was 40 feet high and about 14 feet wide. On 5. MASTER AND SERVANT (§ 121*)—LIABILITY top of the tanks there was what is known FOR INJURIES-UNSAFE PLACE TO WORK. as a screw conveyor, being a metal trough

If, as claimed, a screw conveyor, around 12 or 14 inches high, and 10 or 12 inches wide, which employés were required to work, had and in the trough there is a screw made of been covered in places only with sacks for so long as to become so covered with dust as to

iron or steel, on which there is a flange, like appear solid, the employer's failure to correct an auger, made of sheet iron or steel. There the trouble or to warn the employés of such is a space of two inches between the conveydanger rendered the employer liable for inju- or and the tanks. The conveyor runs from ries sustained by an employé who stepped through such covering and had his foot caught an elevator, which brings the lime up, across by the screw.

the tanks, and the lime carried by the con[Ed. Note.--For other cases, see Master and veyor is deposited in them through holes Servant, Cent. Dig. 88 228-231; Dec. Dig. & cut in them, over which there are slides. The 121.*]

conveyor runs north and south the full length 6. MASTER AND SERVANT ($ 25044, New, vol. of the tanks. There was a line shaft and


some timber carrying it about five feet above In an employé's action for injuries sus- the tanks. Between the two lime tanks there tained in West Virginia, due to the employer's was a sprocket wheel, and the elevator chain failure to properly guard a screw conveyor or drive is on the east side. to warn employés of the danger, a West Virginia statute requiring machinery, belting, shaft

A new conveyor was being constructed ing, gearing, etc., if so arranged and placed as to run parallel with the old one. The appelto be dangerous, to be securely guarded when lee and three others were working there. possible, and, if not possible, requiring notices The two ground lime tanks were known as of the danger to be conspicuously posted, was properly admitted in evidence, as such statutes No. 1 and No. 2. Elias Malott was standwill be enforced by the courts of other states, ing by Bowers when he was hurt. He said: unless contrary to the policy of the state where “We were on No. 2 tank, cutting the hole, and the suit was brought.

we couldn't get it cut until we moved the new 7. EVIDENCE (8 150*)-EXPERIMENTS-SIMI- conveyor, and Mr. Conley said, 'You and Gene LARITY OF CONDITIONS.

(Bowers) go over, and pull that conveyor ahead.' In an employé's action for injuries caused We were on the east side of it; we had to by stepping into a hole in the cover of a screw cross it, and then to cross back over the two conveyor, covered only by a sack which it was conveyors; we had to cross, because there is an *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

elevator with a chain and a sprocket wheel on!

There can be no question that there was the east side, and we had to cross over it; we abundant evidence on the part of the plaintiff had to pass over the old conveyor down to the tending to show that there was an opening west side, and then come back and cross over to the east side."

in the top of the conveyor, which was coverHe said both conveyors were there, but ed with a sack, on which, as well as on the the new one was not fastened; that the new rest of the conveyor, there was considerable one was about four inches from the old con- lime dust, sufficient to conceal the sack, and veyor.

to cause any one acquainted with the conveyThe conveyors were in sections, and those or to believe that it was properly covered. of the new one were just east of the old one, Bowers testified that he thought it was solid. over where the holes were to be cut. Malott It was suggested that, if Bowers could not said, “We moved it north to give them room see the sack, the other agents of the defendto cut the holes, maybe three feet, moved ant could not have done so; but the superone section.” They had to go from the mid- intendent's testimony shows that they underdle of one tank to the middle of the other, took to keep it dusted—had a man with a and the plaintiff's witnesses testified that blow pipe—machinery was dusted Sunday, they could not go down on the side they and he had been there himself Sunday, and were, and hence had to cross over to the west said, “I would have seen bag if there on side of the conveyors, and then back to the Sunday; not looking for bags, but had aleast side. The line shaft was too low to per- ways looked around on top.” It can scarcely mit them to stand up straight, and, in order be doubted that there was a sack or bag there to get over the conveyors, Bowers put his at the time of the accident; four witnesses, hand on the old conveyor, and then put his besides the plaintiff, so swore. It was pulled foot down on it to step over. He stepped on out with the foot of the plaintiff, when he a sack which was over a hole which had been was released. One witness said, “I had seen left in the top of the old conveyor. He says a sack across the conveyor at that point a he got his foot out, but the sack caught it week, or probably longer before;" and another and dragged it into the hole of the conveyor said, “I can state where he got hurt, but where where the screw was running. His foot the sack was I do not know; but where he got went down on the east side of the screw, and hurt, I know there were sacks there, in the imthe screw forced it over to the west side, mediate vicinity of that place; I saw sacks in thus crushing his leg and foot terribly.

those places about two or three weeks beThe conveyor was supposed to be covered fore Bowers was hurt.” Malott said he on top with the same material as the other "could not notice that the top was off the portions of it, but in some unexplained way conveyor while working around there, as a part of the top had slid or been moved, there was dust all over there; all the same leaving an open space of possibly 12 or 18 thing;" and he also said Bowers “set his inches, although the exact size of the hole is hand on the conveyor, and set his foot to go not known. Over that space the sack had been across, and his foot went on down into the placed. There is a good deal of lime dust screw; it was necessary that he put his about the conveyors, and, according to the evi- hand down; he couldn't step across, and he dence for the plaintiff, there was from 11 to couldn't stand up and step upon it, and he 212 inches of it on the sack, and Bowers claims bent and just put his hands on it, and he he could not see that there was a sack there, put his foot up." Conley said, "Campbell or anything unusual. Malott said, “I could and I crossed over the conveyor on tank No. not see that the place was not covered, dust 2; stepped on it; it was impossible for us over it; it all looked alike, probably 2 to 24 to step 2 feet and raise 14 inches; at that inches of lime dust over the sack and over point both of the conveyors were together.” the other portions of it." Conley said, “All

[2-4] Keeping those facts in mind, there can covered with dust; I judge, 2 inches of dust be no doubt that the lower court properly rethere, I didn't see the sack." Izer said,

fused to take the case from the jury. The "At time Bowers was hurt there was about general rules of law applicable to master and 142 or maybe 2 inches of dust on everything servant are now too well settled to require the up there.” That was denied by the defend- citation of many authorities, but it may not be ant's witnesses, but it was a question for amiss to recall some of the rules we have the jury to determine. One witness said it

announced. In Bernheimer Bros. v. Bager, would have taken three weeks for dust to 108 Md. 551, 70 Atl. 91, 129 Am. St. Rep. accumulate to the depth of 2 to 212 inches. 458, we said: The superintendent of “the controlling end of must exercise ordinary and reasonable care to

"It is a fundamental rule that the master the plant" said it would take a couple of avoid unnecessary injuries to his servant, in the months for two or three inches of lime to course of his employment. While he is permitsettle there. He did not think there could ted to delegate to others certain duties, there have been a sack there on the Sunday before are some which he cannot relieve himself of,

or avoid the responsibility for, if there be a the accident; he was not looking for bags failure to discharge them to the injury of the but "was looking for holes in conveyors but servant. One that is required of him, in this saw none; looked for holes in any conveyor, and maintaining safe machinery and appliances

as well as in other jurisdictions, is providing as they are dangerous.” He also said, “No and a reasonably safe place for the work underexcuse not to protect screw conveyors." taken by the servant. Necessarily there are

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