street, and it had been dedicated by the owner of the land selling lots to appellant and others, the implied covenant for the right of the appellant to use it would only have extended to Eutaw street. If the city had not accepted the dedication, and no lots had been sold east of Eutaw street, when it proposed to open that part of the street, it would have been compelled to pay for it, and could not have been aided by the implied covenant for the benefit of the appellant and other purchasers of lots west of Eutaw street, as that only extended to Eutaw street. The theory of the rule of law is that the vendor only covenanted with the vendee that he could have the use of the street on which his lot fronts to the next existing public street, because there would have been access to other ways. The law fixed the next cross street as the limit, just as it does in this character of cases, because the line must be drawn somewhere, and that was deemed a reasonable and just place to fix it.

considerable part of the territory, on both 'ample, Henrietta street was an unimproved sides of the railroad. from which this church would naturally have derived a good deal of its membership, is now mainly and in some squares exclusively, occupied by colored people. It may be that the improvements made under this ordinance, of which this closing of Henrietta street is a part, is to some possibly a large extent responsible for the change in the class of residents living there, but surely no one will contend that in assessing damages for closing a block of Henrietta street, all that is done or to be done under this ordinance is to be taken into consideration. We speak of such matters to show how impossible it would be to allow damages to cover such injuries as the appellant claims to have sustained, if we are to be governed by established rules of law and not be led off into what is pure speculation and be yond definite ascertainment. So far as affecting the value of appellant's property is concerned, it may be different in degree, but i is not different in kind, from that of the owners of other properties situated in this neighborhood. If the appellant is entitled to damages, every owner on both sides of Henrietta from Eutaw to Warnet street, and from Howard to Sharp, would be, and if they are those on cross streets, or a little further off on Henrietta or some parallel street, might claim damages on the same ground. As said by the Supreme Court of Massachusetts, supra, the line must be drawn somewhere, and unless there be some very unusual and extraordinarily peculiar conditions, we think that drawn by the great weight of authority, which we have stated above, is the safe and correct one.

In determining how far a dedication of an unimproved street extends, so as to relieve a municipality from paying damages, in a proceeding for opening, etc., such a street, we said in Hawley v. Mayor, etc., of Baltimore, 33 Md., on page 280:

"The doctrine of implied covenants will not be held to create a right of way over all the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lots sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser' of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his deed and no further."

We had intended to refer at some length to the cases cited by the appellant, but this opinion is already too long to admit of that, and we must be content with saying that we have examined them carefully and find that they are for the most part, if not altogether, easily distinguishable from those which sustain the rule we have announced. The case of Howell v. Morrisville Borough, supra, sufficiently explains that of In re Melon street, supra, to avoid the necessity of further comment, and that of Dantzer v. Railway Co., 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769, 50 Am. St. Rep. 343, is much more favorable to the contention of the appellees than it is to that of the appellant. But, without mentioning others, an examination of them will show either that damages were allowed under some special statute construed by the court to include such damages, or that the properties were by the closing left in a culde-sac or in some such shape as the courts held had so affected the access to them as to come within an exception to the general rule.

We do not see the relevancy of the questions in the first and second bills of exception, but whatever the answers might have been they could not have affected our conclusion on the main question. So although it is greatly to be regretted if the property The dedication in such cases is held to of the appellant has depreciated as indicatbe coextensive with the right of way ac-ed by the evidence of the witnesses produced quired as an easement by the purchaser, and by it-whatever may be the real cause or although the owner of the land has laid it causes for the depreciation--we are convincout in lots and streets, and sells lots called that under the overwhelming weight of ing to bind on such streets, the dedication is limited as stated above, and in Mayor, etc., of Baltimore v. Frick, 82 Md. 85, 33 Atl. 435, it was held that the street which limits the extent of the dedication is the next existing public street, whether the same be ac

authority it is not entitled to damages in this case, and the action of the court in granting the motion to dismiss the appeal taken to the Baltimore city court must be affirmed.

Order affirmed; the appellant to pay the

(123 Md. 78)

NEW THEATER CO. v. HARTLOVE.

(No. 23.)

(Court of Appeals of Maryland. March 19, 1914.)

1. THEATERS AND SHOWS (§ 6*)-SAFETY OF PATRONS-DUTY OF PROPRIETOR.

The proprietor of a theater, while not an insurer of safety of attending patrons, is bound to use ordinary care for their safety, and to that end to put and keep the place in a reasonably safe condition.

[Ed. Note.-For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*] 2. THEATERS AND SHOWS (§ 6*)-INJURY TO PATRONS-NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE--QUESTION FOR JURY.

Under the evidence in an action for injury to a patron of a theater from falling into the musicians' pit while taking her seat in the front row of the parquet, the guard rope between it and the pit being down at the time, and the light being low or out, held the questions of negligence and contributory negligence were for the jury.

[Ed. Note. For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*]

Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge.

the plaintiff no notice of her danger; and if they further find that the plaintiff, by reason of the darkness, did not see the musicians' pit. and by reason of its unguarded condition was not apprised of the same, and that by the exercise of ordinary care and prudence on the part of the plaintiff she could not have known of her danger in said theater while proceeding to her seat, and that while so proceeding to her seat, heretofore, to wit, on or about the 29th November, 1912, the plaintiff was bruised and injured, in consequence of falling into said unguarded musicians' pit, and that said injury resulted directly from the want of ordinary care and prudence on the part of the defendant, as above set forth in these premises, and not for the want of care or prudence on the part of the plaintiff, directly contributing to the injury -then the plaintiff is entitled to recover."

Plaintiff's third prayer: "The plaintiff prays the court to instruct the jury that if they shall find a verdict for the plaintiff, then in estimating the damages they are to consider her health and condition before the injury complained of. as compared to her present condition in consequence of said injury, and whether the same is in its nature permanent, and how far, if at all. it is calculated to disable her from using her ankle, foot, or limb, in same way, which, in the absence of such injury, she would be able to use it, and also the physical suffering to which she will be subjected by such use, and also physical and mental sufferings, if any, to which she was subjected by reason of said inplain-jury, and to allow her such damages as, in absence of the injury, will be a fair and just com pensation for the injury she has sustained." Defendant's second prayer: "The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintif could have avoided falling into the orchestra pit in the defendant's theater by the exercise of ordinary care, and that she did not exercise such care in seeking a seat on the front row of said theater, then she is not entitled to recover, and the verdict must be for the defendant."

Action by Lillian V. Hartlove against the New Theater Company. Judgment for tiff, and defendant appeals. Affirmed. Plaintiff's first, second, and third prayers, and defendant's second, third and fourth prayers, all of which were granted, are as follows:

Plaintiff's first prayer: "The plaintiff prays the court to instruct the jury that it was the duty of the defendant to exercise ordinary care, to provide a safe walk or aisle, along which the plaintiff must walk to secure a seat in the defendant's theater."

Plaintiff's second prayer: "The plaintiff prays the court to instruct the jury that, should they find from the evidence that the defendant operates a theater for the use, enjoyment, and amusement of the public, by the staging of vaudeville or moving picture shows; and if the jury finds that the public is invited to use said premises for its enjoyment, on purchase of tickets of admission; and if they further find that in said theater there is a pit constructed in the floor, which pit is for the use of the musicians,

and which is below the level of the floor, at its nearest point to said pit (if they so find); and if the jury further finds that on the afternoon of November 29, 1912, there was no guard rail around said pit (if they so find); and if they further find that during the performance on the afternoon in question the defendant had turned the lights in said theater down, or out, so that the theater was rendered dark thereby : and if they further find that the defendant knew, or by exercise of ordinary care and prudence could have known, that it was dangerous to allow its patrons to walk along the aisle in said theater near the unguarded pit while the lights were turned down; and if they further find that the plaintiff purchased a ticket of admission to said theater, on the afternoon in question, and came upon said premises on the' said afternoon, and while the performance was in progress, and while the lights were turred

down or out, and while there was no guard railing around the musicians' pit (if the jury | find these facts), the defendant, through its servants and employés, consented, allowed, or directed the plaintiff to procure a seat therein, in proximity of the danger aforesaid, and gave

Defendant's third prayer: "The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintiff should have seen that the rope guard surrounding the orchestra pit in the defendant's theater had been removed, if she had looked, but that she failed to observe such fact and slipped into the orchestra pit without paying attention to where she was walking, then she is not entitled to recover, and the verdict must be for the defendant."

Defendant's fourth prayer: "The defendant as the court to instruct the jury that if they shall find from the evidence that there is a permanent injury to the ankle of the plaintiff, but that such permanent injury is due to the treatment received since the accident or to the plaintiff walking too soon, then the plaintiff is not entitled to recover damages for such permanent injury."

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

R. Howard Bland, J. Kemp Bartlett, Edgar Allan Poe, and L. B. Keene Claggett, all of Baltimore, for appellant. Henry Zoller, Jr., and J. Edward Tyler, Jr., both of Baltimore, for appellee.

BURKE, J. The appellant on this record

conducts a theater on Lexington street in Baltimore city, and the appellee was injured therein on the 29th of November, 1912, while she was a patron of the theater, by falling

from the main floor into the musicians' pit Yet in each one of the cases where the measwhich was at the time unguarded. The dec-ure of care or duty is defined by the use of laration alleged that the appellant did not the adjectives "due, ordinary, or reasonable," use due care towards the plaintiff, and by the application has been the same as in the the wrongful act, neglect, and the failure of cases of Fox v. Buffalo Park, 21 App. Div. the defendant in not properly guarding the 321, 47 N. Y. Supp. 788, and Schofield v. musicians' pit inside the theater, the plaintiff, Wood, supra. although using due care and caution, was injured by falling into said pit. The narr. alleged an act of primary negligence on the part of the defendant, and negatived contribntory negligence on the plaintiff's part.

See, also, 29 Cyc. 453; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Thornton v. Agricultural Society, 97 Me. 108, 53 Atl. 979, 94 Am. St. Rep. 488; Phillips v. Wisconsin State Agricultural Society, 60 Wis. 401, 19 N. W. 377; Kann v. Meyer, 88 Md. 551, 41 Atl. 1065; Texas State Fair v. Brittain, 118 Fed. 713, 56 C. C. A. 499; Texas State Fair v. Marti, 30 Tex. Civ. App. 132, 69 S. W. 432;|that it had been there." She had been to the Currier v. Boston Music Hall Association, 135 Mass. 414; Brown v. South Kennebec Agricultural Society, 47 Me. 275, 74 Am. Dec. 484; Dunn v. Brown Co. Agl. Soc., 46 Ohio St. 93, 18 N. E. 496, 1 L. R. A. 754, 15 Am. St. Rep. 556; Williams v. Mineral Park Association, 128 Iowa, 32, 102 N. W. 783, 1 L. R. A. (N. S.)

tributory negligence to the jury, and also advised the jury as to the correct measure of damages. The first prayer of the defendant asked the court to decide that there was no evidence in the case legally sufficient to entitle the plaintiff to recover. This prayer was refused, and, the verdict and judgment being in favor of the plaintiff, the defendant has prosecuted this appeal. Assuming, as we must do, in passing upon this prayer, the truth of the testimony offered by the plaintiff's witnesses, we are of opinion that the prayer was properly refused. It is a matter of common knowledge and observation that a depression in a floor of the depth of the one described is sufficient to cause one to fall, under the circumstances testified to by the plaintiff's witnesses, and the defendant might have reasonably anticipated that a patron might have fallen in attempting to reach in the darkness one of the front seats. The

The theater was crowded and many were standing. When she fell, she went "head first and fell on my feet, and that is when I sprained my ankle." She was helped out by her two companions and Mr. Fitchen. "He caught me up bodily under the arms, because I could not move. They then led me over into the box, and I stayed in the box." Her ankle was hurting badly at the time, but she did not examine it until she got home and took off her shoe, when her foot began to swell, and she sent for her doctor, Albert Chambers, M. D. "I was off my feet for eight weeks, and I cannot get along very well with it now, so I don't know how long I will be laid up." The sprain was very painful; "I never suffered so much pain." Her ankle still pained her. She said that she fell when in the act of turning from the aisle to the seat; that she fell before she realized where she was; that she was not able to see very much. It was, she further testified, | jury might well have concluded that by plac"very dark," and she thought she would catch hold of the rail and rope, but that they had been removed without her knowledge. The testimony of the plaintiff was corroborated by that of Mrs. Johnson and Miss Griffin upon material points, and upon the darkness pervading the theater at the time.

Dr. Albert W. Chambers testified that he was called to attend the plaintiff on the 2d of December, 1912, and that he found her suffering with a sprained ankle and a sprained foot; that she had quite a good deal of swelling about the ankle and the foot; a considerable amount of dislocation, and was suffering a good deal of pain; that she was still having pain, and that "whatever disability she now has is likely to be permanent." | He further testified that:

"The probable results of a badly sprained ankle and foot are more likely to be the impairment of the functions, a certain weakness about the ankle; the ankle will not be as strong as it was before and the smaller joints between the different bones in the feet are apt to be weak and painful. A bad sprain can cause a falling arch, but I am not willing to say that that will be the result in this case. I am not willing to say that is going to happen. The pain and the impairment of the functions are there now, and they are liable to stay there, and any impairment from this time on is apt to be permanent."

The defendant offered evidence to the effect that there were sufficient lights burning at the time of the injury to show any object in the house, or any obstruction, and that the light from the moving picture was sufficient to enable one to see anything within five rows back. At the conclusion of the case the court granted three prayers on behalf of the plaintiff and four on the part of the defendant. There were no special exceptions filed. These prayers, which the reporter is requested to set out in the report of the case, correctly submitted the questions of primary and con

ing a guard rope around the pit, the defendant recognized the danger of leaving it unprotected. To have left this pit unguarded and unprotected under the circumstances might well have been regarded by the jury as an act of negligence; nor could the court have decided, as a matter of law, that the plaintiff was guilty of contributory negligence. The questions of primary and contributory negligence were properly left to the jury under the prayers granted. In Knecht v. Mooney, 118 Md. 583, 85 Atl. 775, it was said by Judge Thomas:

"It is said in United Railways v. Seymour, ally a question for the jury to decide upon all 92 Md. 425 [48 Atl. 850], Negligence is usuthe facts of the case' (Shipley's Case, 31 Md. 368; B. & O. R. R. v. Miller, 29 Md. 252 [96 Am. Dec. 528]), and when it can only be correctly determined by considering all the attendtransaction, it falls within the province of the ing and surrounding circumstances of the jury to pass upon and characterize it'; and in

the uncontradicted evidence in the case proves the same case Judge Page said that: 'Unless such a glaring act of carelessness on the part of the appellee as to amount in law to contributory negligence, it is the duty of the court to submit the matter to the jury. In the case of 131 Atl. 327], this court held that the unconCooke v. Baltimore Traction Co., 80 Md. 551 tradicted evidence in the case must establish some distinct, prominent, and decisive fact, about which ordinary minds would not differ, in order to justify the court in pronouncing the plaintiff's conduct such contributing negligence in law as to prevent a recovery."

We find in this record no such decisive act of negligence on the part of the plaintiff as would have warranted the court in directing a verdict for the defendant.

During the course of the trial the defendant reserved five exceptions to rulings on evidence. The second and fifth exceptions were abandoned in this court, and we find no reversible error in any of the other rulings. Judgment affirmed, with costs.

(123 Md. 128)
PETTIT v. COMMISSIONERS OF WICOM-
ICO COUNTY. (No. 33.)
(Court of Appeals of Maryland. March 19,
1914.)

1. HIGHWAYS (§ 115*)-INJURY FROM CON-
STRUCTION-LIABILITY.

ble therefor.

2. EMINENT DOMAIN (§ 242*) - CONDEMNATION-COLLATERAL ATTACK.

County commissioners having had jurisdiction in condemning land for the widening of a road, the question of disqualification of one of the examiners, or a mere irregularity in that statutory provisions were not strictly followed, may not be inquired into collaterally; direct appeal from the action of the commissioners being the remedy.

straighten the road, and prescribed the procedure to be followed. Section 128 of the act provided that:

"The county commissioners of Wicomico county shall have the power by ordinance or resolution of condemning, laying out, opening, extending, and making new roads, and for altering, straightening, widening, grading, improving or closing up, in whole or in part, any * * when in their opinion

** *

Though county commissioners condemn a strip of one's land for widening a road, they, in doing the work of widening unnecessarily in-existing road juring his land outside that condemned, are lia- the public necessity or convenience requires the same without any previous application or *** If, however, the county com[Ed. Note. For other cases, see Highways,missioners aforesaid shall proceed by condempetition. Cent. Dig. §§ 355-370, 372, 373; Dec. Dig. & nation in the exercise of the powers herein 115.*] granted, all benefits or damages done, suffered. or incurred by laying out, opening, and making new roads, or by altering, straightening, widening, grading, improving, or closing up, in part or in whole, any existing road shall be determined or assessed by three disinterested persons, freeholders and residents of Wicomico county and above the age of 21 years, who shall be appointed by the county commissioners aforesaid and shall, within ten days, after notice of their appointment take an oath before a justice of the peace of Wicomico county that they will faithfully and fairly, and without partiality or prejudice, view and assess the cost and damage to be suffered and incurred by any person interested in said property over, through, or by which the said road ened, graded, or improved; and also to estiis to be opened, closed, extended, widmate the benefits that may accrue therefrom to any subsequent property owner, through and by which the said road, drain, waterway, or landing is to be opened, closed, extended, widened, graded, or improved, or any property adjacent thereto, or any other property injured or benefited by said road; but they shall give at least fifteen days' notice in one or more newspapers published in Wicomico county of their purpose to lay out, open, extend, close up, widen, straighten, grade, or improve the road as directed to be laid out, etc., and of the day and hour of place of meeting for said purpose; and shall meet at Worcester the time and place mentioned in the notice giv

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 626; Dec. Dig. § 242.*] 3. DAMAGES ($ 217*)-INSTRUCTIONS. An instruction on damages for taking and injuring land should lay down a definite rule to guide the jury in estimating the damages.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 556-559; Dec. Dig. § 217.*] 4. HIGHWAYS (§ 115*)-CONSTRUCTION-LIABILITY OF COUNTY COMMISSIONERS.

The report of the examiners in condemnation by county commissioners under Acts 1994, c. 583, of land for widening a road, not having been ratified by the commissioners, as thereby required, they did not acquire title to or interest in the land, and therefore in constructing the road on it were wrongdoers.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 358-370, 372, 373; Dec. Dig. § 115.*]

Court,

Appeal from Circuit
County; Robley D. Jones, Judge.

"To be officially reported."
Action of trespass by Linden H. Pettit
against the County Commissioners of Wicom-
ico County. From an adverse judgment,
plaintiff appeals. Reversed, and new trial

awarded.

Argued before BOYD, C. J., and BRIS-
COE, BURKE, THOMAS, URNER, STOCK-
BRIDGE, and CONSTABLE, JJ.

Elmer H. Walton, of Salisbury, and John
H. Handy, of Snow Hill, for appellant. L.
Claude Bailey, of Salisbury (Joseph L.
ley, of Salisbury, and John W. Staton,
Snow Hill, on the brief), for appellees.

* 本*

en by them and proceed to exercise the powers and perform the duty assigned and required of them, and to ascertain whether any and what amount in value of the damages will be caused thereby for which the owner or occupant of any rights or interests claimed in any ground above the amount in value of benefits which improved ought to be compensated over and will thereby accrue to said owner or occupant thereof, and ascertain what amount in value or benefits will thereby accrue to any lot or parcel of ground by or through which the same may pass or improvements made, or any othof, which said lot or parcel of ground or owner er property, or to the owner or occupant thereor occupant thereof ought to pay. They shall Bai-locate boundaries and prepare an explanatory of map giving description of the road opened, closed, extended, widened, straightened, * with each separate lot or parcel of ground deemed to have sustained damage or received benefit, BURKE, J. The appellant is the owner and they shall, within twenty days, return to the of a tract of land which binds upon a county county commissioners such maps, together with the amount of damage awarded such owner or road leading from Rocka Walking milldam occupant and the amount of benefits assessed to Catchpenny in Wicomico county. The to any lot or parcel of ground or the owner road is referred to in the declaration and thereof, together with a certificate of their mentioned in the evidence. The county com-ed, or allowed, and amended, in whole or in qualifications, which may be ratified or rejectmissioners of Wicomico county determined part, by said county commissioners; providto widen and straighten this road in front ed, that the county commissioners shall give of the appellant's property. The act of 1904, ten days' notice at least by publication in one newspaper published in Wicomico county, or by chapter 583, conferred upon the commission- ten days' notice at least in writing to each ers of that county the power to widen and property owner so interested, of the time set for

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