sider it. It is not questioned by either party that it was proper to determine by appropriate proceedings the petitioner's claim of relationship to the decedent, before considering the question whether there has been a forfeiture of the right of administration. The propriety of such a course is established by Reilly v. Dougherty, 60 Md. 276. The appellant asked the court to send this issue to a jury, to wit, "Whether the petitioner, Carrie Richardson, is the sister of Samuel Richardson, deceased." This was the point of controversy between the parties. It was the matter affirmed on one side, and denied on the other. The question was presented clearly, distinctly, perspicuously, and accurately. The form in which it was expressed agrees with Lord Coke's definition of an "issue," which he declares to be "a single, certain, and material point issuing out of the allegations of the plaintiff and defendant." We think that this issue ought to have been granted by the orphans' court. They, however, refused it, and granted two others.

The first one is as follows: "Is Caroline Richardson, otherwise called Caroline Parsons, the daughter, born in wedlock, of William Richardson, late of Baltimore county, deceased, and Isabella Parsons? and, if yea. when and where was the said Caroline born?" By this issue the jury are required to find whether the petitioner is the legitimate daughter of Isabella Parsons. Neither the petition nor the answer makes any reference to Isabella Parsons. She is not in any way mentioned. It seems to have been the principal object of the issue to present the question whether the petitioner was the legitimate daughter of William Richardson, who is stated in the answer to have been the father' of the decedent; but it improperly connects with this question an inquiry about Isabella Parsons, concerning whom the pleadings are silent. It also contains an irrelevant inquiry about the time and place of the birth of the petitioner. In many instances it is impossible to establish these facts by competent testimony, although the legitimacy may be fully proved. The birth may have taken place in a foreign country, and at a remote period, and all evidence of time and place may have been lost or may be inaccessible, while the evidence of the legitimacy may be amply sufficient. For instance, where parents living together as husband and wife, and so declaring themselves, and generally reputed so to be, have brought up a child as their legitimate offspring, and have always acknowledged him as such, their declarations would be competent evidence after their death to prove his legitimacy, and it would not be necessary to prove the time and place of his birth.

The second issue granted by the orphans' court is as follows: "Is Caroline Richardson, otherwise called Caroline Parsons, the daughter, born out of wedlock, of William Richardsou, late of Baltimore county, deceased,

and Isabella Parsons? and, if yea, did the said William Richardson and the said Isabella Parsons, after the birth of the said Caroline, intermarry, and did the said William, after the said mårriage, if any, acknowledge the said Caroline to be his child by the said Isabella?" This issue presents the question whether the petitioner was the illegitimate daughter of Isabella Parsons and William Richardson, and whether she was afterwards legitimated. The objections to the first issue apply to this one. Both of them are comprehended in the issue proposed in behalf of the petitioner. That required the jury to find whether the petitioner was the sister of the decedent; that is to say, his legitimate sister. It made no difference. whether she was sister of the whole or the half blood. Code, art. 93, § 24. If it should appear in evidence that the petitioner was born out of wedlock, it would be necessary for her to prove the subsequent intermarriage of her parents, and her acknowledgment by her father as his child. This intermarriage and acknowledgment would establish her legitimacy. Code, art. 46, § 29. The court before which the issue is to be tried will, of course, give the jury the proper instructions to enable them to find a verdict intelligently.

There was error in refusing the issue proposed by the petitioner, and also in granting the other two. The order of the orphans' court must be reversed, and the cause remanded for further proceedings in accordance with this opinion. Reversed and remanded.

WASHINGTON, C. & A. TURNPIKE v.

CASE.

(Court of Appeals of Maryland. Nov. 14, 1894.) ACTION AGAINST TURNPIKE COMPANY-DEFECTIVE BRIDGE-INSTRUCTIONS-EXPERT EVIDENCE.

1. In a suit for injuries received on a defective bridge, a builder, who was acquainted with the enduring qualities of timber, was properly allowed to state that he examined the bridge in question nearly a year after the accident, and that, in his opinion, the decay of the timbers must have set in at the time of the accident.

2. A turnpike company is not liable for an properly maintained to safely accommodate the accident occurring on its bridge, if this was travel on the turnpike road. and the injury was caused by the accidental displacement of a single plank, of which the company had no notice, and could not by the exercise of reasonable diligence have known.

3. On a suit for injuries received through a defect in a bridge, the fact that the bridge was repaired nearly a year after the accident was no evidence of defects therein at the time of the accident.

4. The mere use of ordinary care by the defendant turnpike company in repairing its bridge would not relieve it from liability for an accident occurring thereon, if it had not by such care made the bridge safe.

5. In an action for injuries caused by a defect in the bridge of a turnpike company which charged tolls, the question whether plaintiff paid his toll was immaterial.

Appeal from circuit court, Montgomery county.

Action by Philip J. Case against the Washington, Colesville & Ashton Turnpike to recover damages for a personal injury. Judg ment for plaintiff, and defendant appeals. Reversed.

Argued before ROBINSON, C. J., and BRISCOE, BRYAN, BOYD, FOWLER, and MCSHERRY, JJ.

Thos. Anderson and W. Veirs Bouic, Jr., for appellant. Jas. B. Henderson and Ed. C. Peter, for appellee.

MCSHERRY, J. This is a suit instituted to recover damages for a personal injury. The verdict and judgment were in favor of the plaintiff, and the defendant has appealed. The appellant is a body corporate owning a turnpike road extending from Ashton to Sligo, in Montgomery county. The declaration alleges that a small bridge forming part of the road was negligently suffered to be out of repair, whereby the plaintiff, in rightfully traveling along the road and across the bridge, was hurt while using due care himself. It appears that the accident occurred in April, 1892, in the following manner: As the plaintiff was descending a hill above the bridge, driving a team which was hauling a heavily loaded four-horse wagon, he locked the wheels, and when he reached the foot of the hill, immediately at the bridge, he went behind the wagon and unlocked the wheels. While doing this the horses had passed onto the bridge. He then discovered that his lead horse was going too much to one side of the bridge, and he ran forward to seize the lead line and control the direction of the team; and as he got about midway of the bridge, and opposite the wagon, his left leg slipped through a hole in the bridge floor, which hole was caused by the displacement at that moment of a single plank composing a part of the flooring. This displacement was apparently produced by the front wheels of the wagon. While in the act of withdrawing his leg, the hind wheels passed over and pressed upon the same plank, and injured his leg above the knee. The bridge was built upon two stone walls or abutments, which were parallel to the stream. Upon these walls, and at right angles to them, a number of sills or sleepers were placed about 20 inches apart, and the oak flooring of the bridge was laid transversely upon and nailed to these sills. The boards forming the floor were not long enough to extend the whole width of the bridge, but were joined upon one of the sills, slightly to one side of the center. It was claimed by the plaintiff that the plank which was displaced as above stated was displaced by one of the front wheels of the wagon forcing it off the sill on which the boards of the flooring met. Upon the trial in the court below, a witness testified that he was a builder and carpenter, and was ac

quainted with the enduring qualities of timber, and that he had examined the bridge in February or March, 1893,-nearly a year after the accident. The witness was then asked to describe the condition in which he found the sill or sleeper upon which the boards of the flooring met; but the defendant objected, whereupon the plaintiff's counsel stated to the court that they expected to prove by the witness that when he examined the sill in question it was badly decayed, and that, from the extent of the decay then existing, and his knowledge of and experience with timbers, in his opinion the decay must have set in at the time of the accident. Thereupon the court allowed the question to be asked, and it was answered as indicated in the proffer above stated. This ruling forms the ground of complaint set forth in the first bill of exceptions. We see no serious objection to this ruling, and but little reliance was placed upon this exception in the oral argument. The opinion of the witness, in connection with the facts to which he had testified, was some evidence, though slight, that tended to show the condition of the sill when the accident happened, and, while its value may not have been great, it was certainly admissible. The only other exception contained in the record brings up the rulings on the prayers. The plaintiff's first and second prayers were granted and his third was conceded. The defendant's first was conceded, its second was granted, and its third, fourth, fifth, sixth, seventh, and eighth were rejected. The first and second prayers of the plaintiff were properly granted. fairly presented his theory of the case, and similar ones have been so frequently considered by this court that it would serve no use. ful purpose to review or discuss them. In the recent case of Turnpike Road v. Parks, 74 Md. 287, 22 Atl. 399, precisely the same instructions were upheld.

They

The defendant's seventh prayer, which was rejected, raises the chief question on this appeal. By that prayer the appellant asked the court to say to the jury that if they believed from the evidence that the bridge was properly maintained to safely accommodate the travel and traffic on the turnpike road, and if the injury complained of was caused by the accidental displacement of a single plank on the bridge, of which the company had no notice, and could not by the exercise of reasonable diligence have known, then the verdict should be for the defendant. This prayer ought to have been granted. While, independently of any stat ute, a turnpike-road company or other similar corporation which charges tolls for the privilege of using its road or bridge is liable for injuries occasioned by its negligence (Turnpike Co. v. Crowther, 63 Md. 564, 1 Atl. 279), and in this respect differs from a municipal corporation, which is only liable for a breach of some statutory duty,-still neither upon principle nor authority can the former be treated as an absolute insurer of the

safety of persons who use its roads or bridges. Even a carrier of passengers is not held to such a stringent liability, for he is only bound to employ "the utmost care and diligence which human foresight can use." State v. Baltimore & O. R. Co., 24 Md. 102. If corporations of the kind now before us be not insurers, it is difficult to suggest a reason for the refusal to grant the prayer now being considered. There was sufficient evidence, if credited by the jury, to support the hypotheses it submitted, and it comes, then, to the single inquiry whether the proposition of law it embodied was correct. In all actions of this character, negligence on the part of the defendant is the foundation of the plaintiff's case. If there be no negligence, though there be an injury, no action will lie. Negligence is purely relative. In every instance it essentially involves some breach or omission of a duty that is owed to another. Without this it cannot be predicated of any act. Where, however, the act complained of and alleged to be negligent could not by the exercise of proper diligence have been foreseen, and is concurrent in its origin with the resulting injury, and as simultaneous therewith as physical cause and effect can be, and there is no antecedent dereliction or breach of duty, actual or constructive, constituting an ulterior or primary cause, the act belongs not to the class of negligent acts, but that described as "aceidents." For a mere accident, unmixed with negligence or fault on the part of the person to whom it is attributed, no action will lie. Gault v. Humes, 20 Md. 297. An accident, then, which furnishes no cause of action, is an inevitable occurrence, not to be foreseen and prevented by vigilance, care, and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, its agents, employés, or servants. Carroll v. Railroad Co., 58 N. Y. 126. It is distinguishable from an act of God in this: that in the latter there is, while in the former there is not, the presence and operation of a vis major. Patt. Ry. Acc. Law, 35, and cases cited in note 2. There was evidence in the cause from which the jury might well have found that immediately before the accident the bridge was properly maintained,-that is, was kept in repair to safely accommodate the travel and traffic over the road; that all the boards of the flooring were securely nailed down upon the sills or sleepers, and that no defects were visible or apparent. If, besides finding these facts, the jury had further found (and there was evidence, if credited, to justify the conclusion) that there was no defect or disrepair of any kind prior to the injury, but that the injury resulted from the "accidental displacement of a single plank," of which the company's agents and servants did not know, and could not by the exercise of reasonable diligence have known, because the displacement occurred simultaneously with the in

jury, and from no antecedent neglect, then a case of accident pure and simple was presented, without an ingredient of negligence. If this be so, the company was not liable, and it was entitled to have that theory of the case presented to the jury as the seventh prayer was designed to present it; and there was consequently error in refusing to grant that prayer. There is nothing in either Crowther's Case, supra, supra, or Parks' Case, supra, inconsistent with this conclusion. In each of those cases it was held that for defects in a turnpike road the corporation was responsible in damages to the person injured, even though no statute imposed the liability; and in neither was the doctrine laid down or suggested that this liability included an injury occasioned by a pure accident. On the contrary, in the last-cited case, to preclude such an inference, it was expressly said: "If the defense had shown that the defect had been occasioned by causes over which it had no control, and of which [defect] it could not possibly, after its occurrence, have been aware, a different question would be presented."

There was also error in rejecting the fourth prayer of the appellant. It appears by the record that about a year after the accident happened the company directed all its bridges to be repaired. In doing this it was found that some of the timber in the bridge now in question was "doted," or partially decayed, but still sufficiently sound and secure to have lasted several years. This doted timber was not put back in the bridge. By the fourth prayer the defendant asked the court to say to the jury that the fact that the bridge was repaired a year after the accident furnished no evidence from which the plaintiff could claim that the repair was done because the bridge was in a defective condition at the time and place of the accident. In other words, it asserted that because the bridge was repaired in June, 1893, it did not follow that it was out of repair in April, 1892. This seems to be obvious. There was no such relation between the act of repairing in 1893 and the condition of the bridge a little over a year before as to justify the inference that the condition in 1892 necessitated the repair in 1893. When the fact to be proved is the condition at the time of the injury, evidence of a condition at a subsequent period so remote as to be an independent and collateral circumstance is clearly irrelevant. Reed v. Railroad Co., 45 N. Y. 574. The prayer sought to point out to the jury this legal principle, and should therefore have been granted. The third prayer was properly rejected. There was no evidence to support its hypotheses. The fifth, sixth, and eighth prayers were also properly rejected. The fifth because the degree of care it prescribed as the measure of the defendant's obligation with respect to the maintenance of its bridges in repair was not rigorous enough; and because, further, it ex

empted the defendant from liability if it used the degree of care therein defined, even though the bridge continued to be in fact defective. The care and caution which a discreet and prudent individual would exercise if the risk were his own is not the care and caution required of a turnpike road or a bridge company which charges tolls for the use of its road or bridge. Such a corporation is held to a degree of care closer akin to that exacted of a carrier of passengers. The mere use of ordinary care in repairing the bridge would not exculpate the defendant if it had not by such care made the bridge safe. Horton v. Inhabitants of Ipswich, 12 Cush. 488. The sixth prayer put an abstract proposition to the jury, and for that reason was properly rejected. The eighth prayer was wrong. Whether the plaintiff had paid the toll or not was immaterial. He was liable to pay it, and his failure to pay it, if he did so fail, did not excuse the negligence of the defendant, if the latter was really guilty of negligence.

Because of the errors we have indicated, the judgment must be reversed, and the cause must be remanded that a new trial may be had. Judgment reversed, with costs above and below, and new trial awarded.

SMITH et al. v. GOLDSBOROUGH et al. ALBAUGH et al. v. SAME. (Court of Appeals of Maryland. Nov. 14, 1894.)

HIGHWAY-PROCEEDINGS TO ESTABLISH-VALIDITY -JURISDICTION.

1. Code Pub. Gen. Laws, art. 25, §§ 83-85, provide that applications for opening roads shall be by petition to the county commissioners; that, when any citizen intends to petition the commissioners to open a road, he shall give 30 days' notice in a newspaper; and that counter petitious may be presented. Held that, where certain persons are named as the petitioners in the opening and closing paragraphs of a petition for opening a road, which is not signed by them, and they adopt it as their petition through proceedings before the commissioners and in the circuit court, and the objectors, who are represented by counsel in such proceedings, raise no objection to the petition because it is not signed until after appeal to the circuit court, the commissioners and the circuit court have jurisdiction.

2. Act 1892, c. 426, § 95a, provides that if the commissioners determine that the public convenience of the community requires the opening of a new public road, but that such convenience would be better served by adopting a somewhat different location from that named in the petition, they shall cause a survey and plat of the proposed road to be made on "such location or route as in their judgment will best promote the public convenience." Held, that the commissioners' record showed a compliance with 'such statute where it showed that they viewed the locality, had a survey and plat made, and determined that the public convenience of the community would be better served by the adoption of a somewhat different location from that named in the petition, and that such convenience "does require that the said new public road, as laid down on said survey and plat," shall be opened, etc.

3. Even if such record did not show a compliance with the statute, such compliance was shown by an order of the commissioners appointing examiners, which recited that they had determined on the location of the road "which, in their judgment, will best promote the convenience of the community."

Appeal, as upon writ of error, from circuit court, Frederick county.

Petition by Charles W. Goldsborough and George W. Hoffman to the county commissioners of Frederick county, Md., for opening a public road. James W. Smith and others and Elias Albaugh and others filed separate counter petitions or protests, and all the parties appealed from an order of the board confirming the examiners' report to the circuit court. The appeal of petitioners Goldsborough and Hoffman was afterwards dismissed. There was a judgment fixing the damages to which the parties were entitled, and the objectors both appeal and bring error. Appeal dismissed. Writ of error quashed.

Argued before ROBINSON, C. J., and BRYAN, BRISCOE, and BOYD, JJ.

M. G. Urner, C. O. Keedy, H. Urner, and J. Roger McSherry, for appellants. J. C. Motter, J. E. R. Wood, and F. J. Nelson, for appellees.

BOYD, J. This case was commenced by an application by Charles W. Goldsborough and George W. Hoffman, the appellees, to the county commissioners of Frederick county, for the opening of a public road in that county; and the question presented for our consideration is whether the circuit court had jurisdiction to enter the judgment complained of, on an appeal taken to that court from the decision of the county commissioners. It must be and is conceded that this court has no authority to review the action of the lower court if the latter had jurisdiction in the premises, and that question is presented by a motion to dismiss the writ of error and appeal. In the circuit court the appellants filed a motion to quash the proceedings before the county commissioners, and afterwards made a motion in arrest of the judgment. The petition for the writ of error asigns 18 reasons why the appellants feel aggrieved at the decision below. Many of the points raised manifestly do not affect the question of jurisdiction, and were not pressed in this court; but it was earnestly contended by the learned attorneys for the appellants that there were certain defects in the proceedings which are jurisdictional questions, and which we will therefore consider.

Section 83, art. 25, of the Code of Public General Laws, provides that "all applications for opening, altering or closing roads shall be by petition to the county commissioners." Section 84 provides that when any citizen of any county intends to petition the county commissioners for opening, altering,

or closing any road, he shall give 30 days' notice thereof in one or more of the newspapers published in the county. Section 85 authorizes counter petitions to be presented. The act of 1892 (chapter 426) substitutes five sections for sections 86-90, art. 25, so far as they apply to Frederick county.

On October 17, 1892, a petition was filed with the county commissioners, but was not signed at the end by the appellees, or any one for them, and it is contended by the appellants that this was necessary to give the county commissioners jurisdiction. It was addressed to the county commissioners of Frederick county, and begins, "Your petitioners, Charles W. Goldsborough and George W. Hoffman, respectfully represent unto your honorable board." It alleges that they are citizens of Frederick county, and that on September 6, 1892, they gave notice in the Examiner, a newspaper published in said county, of their intention to petition to the commissioners, on the 17th October, 1892, for the opening of a certain public road described in the notice, a copy of which they filed, etc. It concluded with, "Your petitioners therefore pray your honorable board for the opening of said road according to law." An affidavit was annexed in which Charles W. Goldsborough made oath that the matters and things set forth in the petition are true, etc. The copy of the notice published in the Examiner has the names of Charles W. Goldsborough and George W. Hoffman attached to it. A counter petition signed by a large number of citizens and taxpayers of Frederick county, including all of the appellants, was filed, protesting "against the petition filed by Charles W. Goldsborough and George Hoffman for the opening of a public road mentioned in said petition," etc. A few days afterwards, Mr. and Mrs. Albaugh filed a more formal counter petition; and on November 18, 1892, Michael F. Seacrist, Elias V. Albaugh, Mary E. Albaugh, and James W. Smith, by their attorneys, asked the commissioners to fix a day for the hearing of testimony for the counter petitions filed, and also as to the road petitioned for. The record shows that the appellants were represented by attor neys in these proceedings before the county commissioners, although it fails to show that any objection was made to the petition on the ground now being considered until September 11, 1893, when it was assigned as one of the reasons why the circuit court should quash the proceedings.

It is perfectly apparent that the appellees adopted the petition as their own from the time it was presented to the commissioners to the end of the case. They could not avoid any liability which attached to petitioners for public roads under the statute, by reason of the fact that they had not signed the petition, at the foot. It may be possible that they did actually sign it, and that the clerk of the commissioners omitted their signa

tures when making up the record. We do not want to be understood as basing our opinion on that possibility, however, and we only refer to it for the purpose of showing what injustice might be done by parties to such controversies waiting until the case is appealed to the circuit court, and there for the first time raising the question. We must not overlook the fact that county commissioners are ordinarily not lawyers, or accustomed to or acquainted with technical pleadings. They are selected from the people at large, and much of their business is transacted without the assistance of those learned in the law. Whether or not the petition was in the handwriting of the petitioners does not appear from the record, but whether it was written by them, or by some one for them, it was adopted by them; and, although the proper place for their signatures is at the end of the petition, it would be valid if signed in some other part. If some one else had signed the names of the petitioners, at the end of this petition, at their request, or if such signatures had been afterwards ratified by them, by filing the petition with the commissioners, one of them swearing to it, and both endeavoring to sustain it before the commissioners and in the circuit court, could it be successfully contended that it was not their petition? This court, in Higdon v. Thomas, 1 Har. & G. 139, and in Drury v. Young, 58 Md. 546, decided that it is immaterial in what part of an instrument the name appears, in order to comply with the requirements of the statute of frauds. The sections of that statute under consideration in these cases require the memorandum, etc., to be signed by the party, or his agent, while the statute under which this proceeding was commenced does not so require, in terms, although it was doubtless intended that the petition should be signed or adopted in some way so as to avoid any question as to who the petitioners were. Under the circumstances of this case, there can be no doubt about the fact that the appellees were the peti tioners, and that they would be responsible for costs, and such other liabilities as might attach to parties petitioning for public roads. The omission to sign their names at the end of the petition was a mere irregularity, and did not render the petition or the subsequent proceedings void, or prevent the commissioners from taking jurisdiction of the case. To hold proceedings before county commissioners to such technical accuracy might render nugatory and void many transactions in reference to public roads and other matters. No technical pleading is required or contemplated by e law in matters before them. While it is true that their jurisdiction is limited, courts should not be eager or inclined to interfere with their control over matters intended for them because the pro ceedings have not been conducted in the regular and orderly way that is to be expect