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[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 451-456; Dec. Dig. § 167.*]

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, in equity should be brought or maintained 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 time when that right of action accrued. In Bacon on Benefit Societies (3d Ed.) § 443, it is said, the contract of insurance being a voluntary one, the insurer has the right to designate the terms upon which they will be responsible for losses, and a condition that no action against an insurer shall be sustained unless commenced within a certain time is valid; and the same principle is thus stated in 29 Cyc. 216:

"The constitution, by-laws, or certificate generally provide that an action must be brought to recover benefits within a specified period, shorter than that prescribed by the statute of limitations applicable to such an action, and such provisions are valid so as to bar an action not brought within such time."

This is the doctrine announced by the Supreme Court of the United States in the leading case of Riddlesbarger v. Insurance Co., 7 Wall. 386, 19 L. Ed. 257, and followed by the great majority of adjudications of the question since. See, also, Modern Woodmen of America v. Bauersfeld, 62 Kan. 340, 62 Pac. 1012.

It is, of course, true that the limitation of time for the commencement of suit might be made so short as to be entirely unreasonable; but that cannot be said of the period fixed by the by-law here involved. In many instances an even shorter period of time has been sustained by the courts as being a reasonable regulation.

We therefore concur with the action of the lower court in granting the prayer directing a verdict for the defendant, and the judgment appealed from will be affirmed. Judgment affirmed, with costs.

(123 Md. 667)

PITSNOGLE et ux. v. WESTERN MARY-
LAND RY. CO. (No. 40.)

(Court of Appeals of Maryland. June 26,
1914.)
EMINENT DOMAIN (§ 167*)-CONDEMNATION
PROCEEDINGS DISMISSAL STATUTES
REPEAL.

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Code Pub. Civ. Laws, art. 26, § 30, provides that in condemnation proceedings the court shall render judgment against the persons or corporations for whose use the condemnation may be made, in favor of the owners named in the requisition, for the damages awarded, and unless, within 90 days after condemnation ratified, the same shall be abandoned by written notification to the owners, execution may issue on the judgment. Acts 1912, c. 117, relating to the same subject, contains no provision for abandonment of the proceedings when once begun, but enacts a new procedure to acquire property through the power of eminent domain, and repeals only inconsistent prior legislation. Held, that the act of 1912 was not inconsistent with the former provisions, and did not repeal the same, and hence proceedings to condemn land for a railroad right of way could be properly abandoned

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge. "To be officially reported."

Condemnation proceedings by the Western Maryland Railway Company against Jeptha E. Pitsnogle and another. From an order overruling objections to the dismissal of the proceedings after verdict, on exceptions to an award of appraisers but before judgment, defendants appeal. Affirmed.

See, also, 119 Md. 673, 87 Atl. 917, 46 L. R. A. (N. S.) 319.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ.

Harry Brindle and Frank G. Wagaman, both of Hagerstown, for appellants. Benjamin A. Richmond, of Cumberland, and Charles A. Little, of Hagerstown, for appellee.

CONSTABLE, J. The question in this appeal involves the right of a condemning party to abandon condemnation proceedings, instituted under chapter 117 of the Acts of 1912, after the rendition of the verdict of the jury, on exceptions to award of the appraisers but before judgment on the verdict. has once been before this court, and is reported in 119 Md. 673, 87 Atl. 917, 46 L. R. A. (N. S.) 319, which was an appeal by the appellants herein from the judgment of condemnation, which judgment was affirmed by this

court.

* *

The appellee filed its petition against the appellants, in which it alleged that it "desires to acquire the said parcel of land to be used for the purpose of locating its railroad tracks, switches, yard tracks, and side tracks on part of the same, and for the location of a substitute private road on the remainder thereof in place of the existing private road which the petitioner desires to close and to use for railroad purposes, said private road being known and designated as the 'Startzman road,' all of which abovedescribed parcel of land it will be necessary for the petitioner to have and use for the said purposes for the proper working and operation of its said railroad, and for the proper handling of its railway business, and for said road in perpetuity."

After the affirmance of the judgment of condemnation, and upon the cause being remanded, further proceedings were taken under the provisions of chapter 117 of the Acts of 1912. Appraisers were appointed as provided by said act, and upon their return exceptions were filed thereto by the appellants 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 of December, 1913, and a verdict assessing the damages at $4,000 was returned. On the 16th day of the same month the appellee filed a motion for a new trial. During the pendency of this motion, but before it was heard, on the 9th day of January, 1914, the appellee filed in the case four papers: (1) An order dismissing the motion for a new trial. (2) An order releasing the judgment of condemnation. (3) An order dismissing, abandoning, and nonprossing the original petition filed by the appellee in the case. (4) Notice to the appellants that the appellee had abandoned the proceedings to condemn their land and all intention of proceeding with said condemnation. This notice was duly served upon the appellants.

as to the correctness of this rule, but, as to the time when the rights of the parties become seems to be no denial of the right of the convested, there is a diversity of opinion. There demning party to abandon the proceedings, where they have not been confirmed or summated. It may do so at any time prior to the confirmation of the commissioners' report, after the assessment of damages has been made, and the award has been filed, and either before the submission of the inquiry to a jury or after verdict and prior to judgment."

After pointing out that the New York rule is that the proceedings cannot be abandoned after the commissioners' report has been confirmed, and that rule is substantially the same in Louisiana, Nebraska, New Hampshire, New Jersey, and Pennsylvania. same authority adds:

The

"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 whethof 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 the condemning party has entered into possession of the land. In these jurisdictions the company may abandon the proceedings at any time before final judgment, or after affirmance of the verdict in favor of the landowner, or after judgment assessing the damages, or even after appeal from the judgment."

At the hearing of the above motions, testimony was taken, from which it appears that the right of way called the "Startzman road" led into the Startzman farm over the land of the appellee; that the Startzman farm had been purchased by the appellee subsequent to the time of entering the judgment of condemnation and before the appeal first taken in this case. It was further shown that the plan of the appellee for its yard, side tracks, etc., was partly carried out upon its own land, but upon no part of the land sought to be condemned; that a portion of the right of way had been rendered impassable by the fill of dirt placed thereon. It was also shown that the appellee did not at any time take possession of any part of the land described in the condemnation proceedings nor enter

thereon.

The right of abandonment by a condemning party of condemnation proceedings instituted by it has been the subject of much litigation in this country, and, before discussing the decisions and statutes in force in Maryland, it might be well to quote what is so forcibly stated in 7 Enc. Pl. & Pr. 673, to be the general rule:

"A railroad company which, in the exercise of the right of eminent domain, has instituted condemnation proceedings may subsequently abandon its purpose of taking the property and discontinue the proceedings, and, if it so desires, may select a route other than the one first proposed. Where the condemning party considers the compensation assessed too high, or so high as to render it expedient to go around instead of through the tract, it may abandon the proceedings, and leave the landowner undisturbed."

The same authority at page 674 says: "The general rule, in the absence of statutory provisions to the contrary, is that the condemning party may discontinue the proceedings at any time before the rights of the parties have become vested. There is not even a cavil

Under these general rules, if nothing to the contrary appeared in our decisions or statutes, the appellee would have the right to abandon its proceedings, and the appellant would not be entitled to a judgment on the verdict; there then remaining nothing of the case to support a judgment. But let us briefly examine our statutes and decisions.

This court in Graff v. Baltimore, 10 Md. 544, following the case of Baltimore & Susquehanna R. R. Co. v. Nesbit, 10 How. 395, 13 L. Ed. 469, which was a case upon the Maryland statutes, adopted the language of the Supreme Court:

"It can hardly be questioned that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road, they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption. This being the case, there could, up to this point, be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute."

These decisions were followed in State v. Graves, 19 Md. 351, 81 Am. Dec. 639; Merrick v. Baltimore, 43 Md. 219; Norris v. Bal timore, 44 Md. 604; Baltimore v. Musgrave, 48 Md. 282, 30 Am. Rep. 458; Black v. Baltimore, 50 Md. 241, 33 Am. Rep. 320; Baltimore v. Hook, 62 Md. 371. more v. Hook, 62 Md. 371.

In Norris v. Baltimore, supra, the court thus expressed the rule:

"It has long been the settled law of Maryland that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or to wholly abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporations." Under these Maryland authorities, as well as under the general rule stated in Enc. Pl. & Pr., it is clear that the test is whether or not the title to the land has vested at the time in the condemning party.

By chapter 371 of the Acts of 1870, codified section 30, art. 26, of Bagby's Code, it is pro

vided:

"In all cases of proceedings to condemn lands, for any purpose whatever, under any law or charter, upon the return and ratification of the inquisition by the proper court, and in all cases in which inquisitions may have been heretofore returned and ratified, the said court shall render a judgment against the person or corporation for whose use the condemnation may be so made in favor of the owners named in the requisition for the amount of the damages awarded by the jury, and unless within ninety days after condemnation ratified the same shall be abandoned by written notification to said owners, execution may immediately thereafter issue on said judgment, as in other cases of judgments rendered in courts of law."

Chapter 117 of the Acts of 1912 does not in terms repeal any of the prior legislation upon condemnation, except wherein the same may be inconsistent with the provisions of that act. The inquiry now is: Has the act of 1912 rendered nugatory the prior decisions and repealed section 30 of article 26? Nowhere in the act of 1912 is there any provision whatever made for abandonment of the proceedings when once begun. This in itself would be at least an indication of the intention of the Legislature that they did not intend, by the enactment of a new procedure to acquire property through the power of eminent domain, to change the longsettled rule upon the question. But is section 30 of article 26 inconsistent with the provisions of the act of 1912?

Under the law prior to the enactment of the act of 1870, there was no provision for a judgment upon which an execution could be based, but merely a ratification of the inquisition, and the land proprietor was at the mercy, to a certain extent, of the condemnor until the title to the property passed by either the payment of the damages assessed or tender thereof. This act provided a remedy for the landowner in that he was entitled to a judgment "in personam" and execution for the same, unless the proceedings were abandoned within 90 days after

91 A.-53

the rendition of such judgment by written notice. The act of 1912, like the prior condemnation acts, contained no provision for the enforcement of a judgment, and like those acts is dependent upon section 30, art. 26 (which is codified, not under the head of eminent domain, but under that of courts), for the full completion of the proceedings. Our opinion is that the provisions of section 30, art. 26, are not inconsistent with the provisions of the act of 1912, and that therefore said section is not repealed by said act but is still in force.

We cannot agree that the appellants, when admitting, for the sake of argument, that section 30, art. 26, has not been repealed by the act of 1912, contend that said section makes it mandatory upon the court, when it directs the entering of a judgment after the assessment of the damages. If the law of this state permits a condemnor to abandon and dismiss the proceedings before a judgment is finally rendered, as we are of the opinion it does, we can see no way in which a judgment can be entered, for there is nothing for a judgment to rest upon; all prior requisites to it being dismissed.

The further contention of the appellants that the appellee is in duty bound to provide a substitute road for the Startzman road is not presented under the facts contained in this record. It must be borne in mind that the proceedings in this case did not ask for the condemnation of the rights of any one in the Startzman road, but covered a tract of land separate and distinct from said road. The improvements, so far as the land sought was concerned, were abandoned, and the land not taken nor entered upon by the appellee. Therefore the appellants' title to the sought land has not been affected by the condemnation proceedings. If, however, any rights the appellants might have had in the Startzman road have been affected by the taking of a portion of that road by the appellee for its uses, they, of course, have an adequate remedy.

The cases cited and relied upon by the appellants in support of their contention (N. C. R. R. Co. v. Baltimore, 46 Md. 425; Eyler v. County Commissioners, 49 Md. 257, 33 Am. Rep. 249; and Baltimore City v. Cowen, 88 Md. 447, 41 Atl. 900) are all distinguished from the present case facts, for in them the court was dealing with cases where easements were sought to be acquired, where prior easements already existed, whereas no rights in the Startzman road were sought to be acquired by these proceedings.

Order affirmed, with costs to the appellee.

(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.)

(Court of Appeals of Maryland. June 26,

1914.)

1. MASTER AND SERVANT (§§ 286, 289*)—AcTIONS FOR INJURIES QUESTIONS FOR JURY. In an employé's action for injuries, caused by stepping in a hole in the cover of a screw conveyor, over which was a sack which it was claimed was so covered with lime dust as to appear solid, evidence held to make question for the jury as to the employer's negligence and plaintiff's contributory negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*] 2. MASTER AND SERVANT (§ 90*)-LIABILITY FOR INJURIES-DUTIES OF MASTER.

A master must exercise ordinary and reasonable care to avoid unnecessary injuries to his servant in the course of his employment.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 139; Dec. Dig. § 90.*]

FOR INJURIES-DELEGATION OF DUTIES.

by a witness, apparently with the object of showing that a sack would sag under the circumstances, was not admissible, where it was not shown that the hole was the same size as the one into which plaintiff stepped, or that the sacks were of the same stiffness, especially as, there being positive evidence as to the actual conditions, it would not seem that such evidence could have had any material effect.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 439; Dec. Dig. & 150.*]

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge. "To be officially reported."

Action by Wesley Eugene Bowers against the Security Cement & Lime Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

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

3. MASTER AND SERVANT (§ 103*)-LIABILITY both of Hagerstown, for appellant. Frank G. Wagaman, of Hagerstown (Wagaman & Wagaman, of Hagerstown, on the brief), for appellee.

A master's duty to provide and maintain safe machinery and appliances and a reasonably safe place for the work undertaken by the servant cannot be delegated.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*] 4. MASTER AND SERVANT (§§ 101, 102*)-LIABILITY FOR INJURIES-DUTIES OF MASTER. A master who employs another to enter his service impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178–184, 192; Dec. Dig. §§ 101, 102.*]

5. MASTER AND SERVANT (§ 121*)-LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK.

If, as claimed, a screw conveyor, around which employés were required to work, had been covered in places only with sacks for so long as to become so covered with dust as to appear solid, the employer's failure to correct the trouble or to warn the employés of such danger rendered the employer liable for injuries sustained by an employé who stepped through such covering and had his foot caught by the screw.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. 8 121.*]

6. MASTER AND SERVANT (§ 2504, New, vol. 15 Key-No. Series)-LIABILITY FOR INJURIES -LAW GOVERNING.

In an employé's action for injuries sustained in West Virginia, due to the employer's failure to properly guard a screw conveyor or to warn employés of the danger, a West Virginia statute requiring machinery, belting, shafting, gearing, etc., if so arranged and placed as to be dangerous, to be securely guarded when possible, and, if not possible, requiring notices of the danger to be conspicuously posted, was properly admitted in evidence, as such statutes will be enforced by the courts of other states, unless contrary to the policy of the state where the suit was brought.

7. EVIDENCE (§ 150*)-EXPERIMENTS-SIMILARITY OF CONDITIONS.

In an employé's action for injuries caused by stepping into a hole in the cover of a screw conveyor, covered only by a sack which it was

BOYD, C. J. [1] The appellee sued the appellant for injuries sustained by him as the result of the alleged negligence of the appellant. The appellant was engaged in the manufacture of lime and other products from crushed stone in Berkeley county, W. Va. At the plant of the defendant, there were two hydrated tanks and two ground lime tanks standing in a row, each of which was 40 feet high and about 14 feet wide. On top of the tanks there was what is known as a screw conveyor, being a metal trough 12 or 14 inches high, and 10 or 12 inches wide, and in the trough there is a screw made of iron or steel, on which there is a flange, like an auger, made of sheet iron or steel. There is a space of two inches between the conveyor and the tanks. The conveyor runs from an elevator, which brings the lime up, across the tanks, and the lime carried by the conveyor is deposited in them through holes cut in them, over which there are slides. The conveyor runs north and south the full length of the tanks. There was a line shaft and some timber carrying it about five feet above the tanks. Between the two lime tanks there was a sprocket wheel, and the elevator chain drive is on the east side.

A new conveyor was being constructed to run parallel with the old one. The appellee and three others were working there. The two ground lime tanks were known as No. 1 and No. 2. Elias Malott was standing by Bowers when he was hurt. He said:

"We were on No. 2 tank, cutting the hole, and we couldn't get it cut until we moved the new conveyor, and Mr. Conley said, 'You and Gene (Bowers) go over, and pull that conveyor ahead.' We were on the east side of it; we had to cross it, and then to cross back over the two 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

r

elevator with a chain and a sprocket wheel on the east side, and we had to cross over it; we had to pass over the old conveyor down to the west side, and then come back and cross over to the east side."

He said both conveyors were there, but the new one was not fastened; that the new one was about four inches from the old con

veyor.

There can be no question that there was abundant evidence on the part of the plaintiff tending to show that there was an opening in the top of the conveyor, which was covered with a sack, on which, as well as on the rest of the conveyor, there was considerable lime dust, sufficient to conceal the sack, and 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 the sack was I do not know; but where he got 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 went down on the east side of the screw, and the screw forced it over to the west side, thus crushing his leg and foot terribly.

The conveyor was supposed to be covered on top with the same material as the other portions of it, but in some unexplained way a part of the top had slid or been moved, leaving an open space of possibly 12 or 18 inches, although the exact size of the hole is not known. Over that space the sack had been placed. There is a good deal of lime dust about the conveyors, and, according to the evidence for the plaintiff, there was from 1% to 21⁄2 inches of it on the sack, and Bowers claims he could not see that there was a sack there, or anything unusual. Malott said, "I could not see that the place was not covered, dust over it; it all looked alike, probably 2 to 22 inches of lime dust over the sack and over the other portions of it." Conley said, "All covered with dust; I judge, 2 inches of dust Izer said, there; I didn't see the sack." "At time Bowers was hurt there was about 11⁄2 or maybe 2 inches of dust on everything up there." That was denied by the defendant's witnesses, but it was a question for the jury to determine. One witness said it One witness said it would have taken three weeks for dust to accumulate to the depth of 2 to 21⁄2 inches. The superintendent of "the controlling end of the plant" said it would take a couple of months for two or three inches of lime to settle there. He did not think there could have been a sack there on the Sunday before the accident; he was not looking for bags but "was looking for holes in conveyors but saw none; looked for holes in any conveyor, as they are dangerous." He also said, "No excuse not to protect screw conveyors."

hurt, I know there were sacks there, in the im-
mediate vicinity of that place; I saw sacks in
those places about two or three weeks be-
Malott said he
fore Bowers was hurt."
"could not notice that the top was off the
conveyor while working around there, as
there was dust all over there; all the same
thing;" and he also said Bowers "set his
hand on the conveyor, and set his foot to go
across, and his foot went on down into the
screw; it was necessary that he put his
hand down; he couldn't step across, and he
couldn't stand up and step upon it, and he
bent and just put his hands on it, and he
put his foot up."

Conley said, "Campbell and I crossed over the conveyor on tank No. 2; stepped on it; it was impossible for us to step 2 feet and raise 14 inches; at that point both of the conveyors were together."

[2-4] Keeping those facts in mind, there can be no doubt that the lower court properly refused to take the case from the jury. The general rules of law applicable to master and servant are now too well settled to require the citation of many authorities, but it may not be amiss to recall some of the rules we have In Bernheimer Bros. v. Bager, announced. 108 Md. 551, 70 Atl. 91, 129 Am. St. Rep. 458, we said:

must exercise ordinary and reasonable care to "It is a fundamental rule that the master avoid unnecessary injuries to his servant, in the course of his employment. While he is permitted to delegate to others certain duties, there are some which he cannot relieve himself of, or avoid the responsibility for, if there be a failure to discharge them to the injury of the servant. One that is required of him, in this as well as in other jurisdictions, is providing and maintaining safe machinery and appliances and a reasonably safe place for the work undertaken by the servant. Necessarily there are

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