watch, under the circumstances, as not amounting to such negligence. Not deeming this act of alleged negligence to be of that character which justifies the court in ruling that it is, in law, contributing negligence, directly contributing to the injury complained of, when considered in connection with all the other circumstances of the case, we think that the prayer which we have been discussing was properly rejected. Finding no errors in the rulings excepted to, the judgment will be affirmed.

STALEY . THOMAS et al.

(Court of Appeals of Maryland. March 14, 1888.)

1. CONTRACT-OFFER OF PERFORMANCE-EVIDENCE.

Plaintiff averred that defendants, real estate agents, had entered into a verbal agreement to sell him a farm belonging to one S.; that in consideration of the payment by plaintiff of $200 cash, and $500 on the 1st of April next ensuing, defendants were to loan plaintiff the rest of the purchase money on a mortgage on the farm; that plaintiff paid the $200, and was ready and willing to pay the $500 on the 1st of April, but that defendants declined to furnish the money on the mortgage, as stipulated. On the trial, plaintiff offered to prove, instead of tender of payment on the 1st of April, that he had given S. a bill of sale on his personal property as security for the payment. Held, that this evidence was not pertinent to the issue presented by the pleading, and was properly rejected.

2. SAME.

Plaintiff's testimony, that at no time did defendants make any objection to the non-payment by him of the $800 in cash, was inadmissible.

3. SAME.

Plaintiff offered to prove that S. had agreed to accept the bill of sale for $800, instead of a payment in cash; and also the inducement which caused him to enter into the agreement with S. Held, immaterial.

4. PLEADING-AMENDMENT-DISCRETION Of Court.

The refusal of the court to allow an amendment to a declaration after the jury had been instructed to find for the defendant, was in its discretion, and no appeal lay from its decision in this regard.

Appeal from circuit court, Frederick county.

This is an action brought by Cornelius Staley against John B. Thomas & Son, for the alleged breach of a parol contract. There was verdict and judgment for defendant, and plaintiff appeals.

Fred. K. Nelson, for appellant. Milton G. Urner, for appellees.

YELLOTT, J. The appellant instituted an action in the circuit court for Frederick county against the appellees; the plaintiff claiming damages for the alleged infraction of a parol contract. In his declaration, the plaintiff avers that the defendants, who constituted a firm for the sale of real estate, had entered into a verbal agreement with him in relation to the purchase of a farm belonging to one Shields, and located in said county. By the terms of this agreement, the price to be paid for the property was $2,740; and in consideration of the payment by the plaintiff of $200 in cash and $800 on the 1st of April next ensuing, the defendants were to loan the residue of the purchase money on a mortgage on said farm. The plaintiff further avers in his declaration that he paid the $200, in accordance with the stipulation in said agreement, and was ready and willing to pay $800 on the 1st of April, but that the defendants declined to furnish the money on mortgage in conformity with the obligations imposed on them by the terms of said parol contract. The verdict and judgment were for the defendants and there are six bills of exceptions in this record.

The first exception is founded on the rejection of evidence in relation to the payment of the sum of $800 mentioned in the declaration. The averment is that this sum was to be paid in cash on the 1st of April, 1885. The plaintiff ofered to prove, not that this sum had been paid on the 1st day of April, 1885, in accordance with the terms of the parol contract sued on, but that he had given

Shields a bill of sale on his personal property as security for the payment. He alleges in his declaration that by the terms of the contract he was under an obligation to pay the money on the 1st of April, 1885, and he offered to prove that he did not pay the money in accordance with said obligation, but had given security that he would pay it at some future time. Here it is clear that the allegata was not supported by the probata. The evidence was not pertinent to the issue presented by the pleadings, and the court properly rejected it. Clark v. State, 8 Gill & J. 111.

The plaintiff offered to prove that at no time did the defendants make any objection to the non-payment in cash of the sum of $800 by the plaintiff. The court refused to admit this testimony, and this ruling forms the foundation for the second bill of exceptions. It is manifest that the fact that the defendants made no objection did not exempt the plaintiff from the obligation to pay on the day designated in the contract. In order to releive himself from such obligation, it was necessary to prove that the defendants consented and agreed that the payment should be postponed to a later period. An inference deduced from the taciturnity of the defendants did not supply the requisite proof. The court was right in rejecting the testimony. And the same observations apply to the fourth bill of exceptions. The plaintiff offered to prove by Shields that he, Shields, had agreed to accept a bill of sale for $800 instead of a payment in cash. How this agreement could affect the legal rights of the defendants it is difficult to perceive. The court very properly ruled that the evidence was inadmissible.

The third exception is founded on the refusal of the court to allow the plaintiff to offer testimony tending to prove the principal inducement which caused him to enter into the agreement with Shields appearing in the record. This testimony was not pertinent to the issue, and there was no error in rejecting it.

This is a suit on a parol contract between the plaintiff and the firm of Thomas & Son, and the motive which led to the formation of another contract between the plaintiff and a third party could not possibly affect the issue on trial. And this court has decided that the inducements which led to the formation of a contract were "perfectly immaterial." Clagett v. Esterday, 42 Md. 617.

The sixth exception was to the ruling of the court in refusing to allow an amendment after the jury had been instructed to find for the defendant. This was an exercise of the discretionary power of the court, and from it no appeal could be taken. As was said in Calvert v. Carter, 18 Md. 108, "no appeal will lie from the action of the court on an application to amend."

The court granted a prayer offered by the defendants, and on the ruling of the court in granting this prayer is founded the fifth bill of exceptions. The jury were instructed that the verdict should be for the defendants, because there was no legally sufficient evidence from which they could find that the plaintiff was ready and offered to pay the sum of $800, as alleged in the declaration. In other words, the jury were told that the averment was not supported by any pertinent proof. No error was committed in granting this instruction. The judgment of the court below should be affirmed.

BALTIMORE & H. TURNPIKE Co. v. BATEMAN.

(Court of Appeals of Maryland. March 14, 1888.)

1. TURNPIKES AND TOLL-ROADS-DEFECTS IN ROAD-LIABILITY FOR ACCIDENTS. A turnpike company that negligently permits part of its road to be in an unsafe condition for travelers exercising ordinary care, is responsible for an accident caused thereby to a person traveling over such road with ordinary care, although such person's horse, without fault on his part, was running away with him at the time.

In an action against an incorporated turnpike company for an accident caused by alleged negligence in the maintenance of its road, evidence that while the plaintiff

was driving down a steep hill on defendant's road, his horse ran away, and upset him into a deep ditch beside the road at the foot of the hill; that the road-bed at that point was three feet narrower than the minimum width of twenty feet prescribed by the company's charter; and that there was no guard-rail between the road-bed and such ditch,-is a sufficient showing of negligence on the part of the defendant to warrant a recovery.

8. SAME-OTHER DEFECTS-INSTRUCTIONS.

In an action against a turnpike company for an accident occurring on its road near a bridge, it is error, in instructing the jury, to base defendant's liability upon its having "negligently permitted a part of its road, one of its bridges, and the approach thereto to be in an unsafe condition," since the condition of the bridge had no causal connection with the accident.

4. SAME.

In an action against a turnpike company for an accident caused by a defect in its road, it is proper to refuse to charge the jury that the plaintiff cannot recover unless the defect was such that a criminal indictment would lie against the company therefor.

Appeal from circuit court, Baltimore county.

Action by Frank Bateman against the Baltimore & Harford Turnpike Company. Judgment for plaintiff, and appeal by defendant. At the trial the plaintiff submitted the following instruction, which the court granted: “(1) If the jury shall find that the defendant corporation owned and kept open for public travel the turnpike spoken of in evidence, then it was required to make and keep its said road, its bridges thereon, and the approaches to such bridges, in such a manner, and so guarded, as to make them safe for persons traveling over the same with ordinary care and caution; and if they shall further find that the defendant negligently permitted a part of its road, one of its bridges, and the approach thereto, to be in an unsafe condition for persons using the same with ordinary care and caution, and that in consequence of such unsafe condition, the plaintiff, while traveling over said road, and approaching said bridge with ordinary care and caution, was injured as complained of, then the plaintiff is entitled to recover in this action, even though the jury may find the plaintiff's horse ran away with him as described by himself and other witnesses, unless they shall further find that said horse was an unfit horse to be driven over such public highways, and the plaintiff knew or ought to have known such fact, or unless they shall find that said horse was not being driven at the time with proper care and skill, or that he ran away through some negligence of the plaintiff." And the defendant submitted the following instructions: "(1) If the jury shall find that, at the place of the happening of the accident in question, the road-bed of the bridge was fully twenty feet in width, and free from obstacle, and that the roadway at and leading thereto was also of said width, and in like manner also free from obstruction, then the plaintiff is not entitled to recover. (2) If the jury find as in the aforegoing prayer, and that at the time of the happening of said accident, that the said plaintiff had lost control of his horse by reason of his running away, and also by reason of the fifth wheel of his wagon becoming locked, or from any other reason had lost such control, so as to prevent or interfere with the proper management of said wagon and horse, then the plaintiff cannot recover. (3) The plaintiff is not entitled to recover in this case, unless the jury shall find that the defendant's road, when the accident occurred, was unsafe for travel, and even if the jury shall be of opinion that the road was not safe, or not so safe as it might have been, yet if they shall find that any defect in the plaintiff's wagon helped to produce the accident, or that the plaintiff's horse, in descending the hill to the culvert, ran away, and got entirely beyond plaintiff's control, and drew the wagon out of the macadamized portion of the road and into the ditch upon the left side, then the plaintiff is not entitled to recover, unless the jury shall be satisfied that any want of safety in the road, if they find such, was owing to the absence of sufficient guards upon and at the approach to the culvert, and that if such guard had been placed at the approach to the culvert the accident could not have occurred. (4) That under the terms of its char

ter the defendant is not bound to construct a road of more than twenty feet in width; and if the jury shall find that the road and bridge at the point complained of were constructed in accordance with the requirements of the defendant's charter, and that the said road and bridge were otherwise in reasonable condition and repair for public travel, and there was no want of ordinary care and diligence on defendant's part in its construction or repair at the time of the accident complained of, then the plaintiff cannot recover. (5) That there is no sufficient evidence in this case of negligence on the part of the defendant as will entitle the plaintiff to recover." "(7) That the plaintiff cannot recover, unless the jury shall find that the defect complained of is of such a nature that a criminal indictment would lie against the defendant for the supposed defect, if they find such. (8) That the plaintiff cannot recover in this case if the jury believe from the evidence that any want of ordinary care on his part contributed to produce the injury complained of. (9) That there is no proof in this case upon which the jury can award any damages for any services rendered to plaintiff by the members of his family during the time he was confined to his bed or to the house. The court granted the defendant's fourth, eighth, and ninth instructions, and refused the rest.

George Hawkins Williams, David G. McIntosh, Robert R. Boardman, and William H. Dawson, for appellant. John I. Yellott, William Young, and Geo. Y. Maynadier, for appellee.

ALVEY, C. J. This action was instituted to recover of the defendant for an injury sustained by the plaintiff while traveling on the turnpike road of the defendant from his home in Harford county to the city of Baltimore; the injury being caused, as it is alleged, in consequence of the defective and insecure condition of the road. The accident occurred in the forenoon of the 19th of April, 1885. The plaintiff was traveling in a one-horse wagon. The horse was owned by the plaintiff, but he had borrowed the wagon of a neighbor. While proceeding on his way he came to the top of a hill, in descending the grade of which to a bridge or culvert across the road the horse ran away, and became quite unmanageable by the plaintiff, and, as he approached the bridge, the horse left the road, and turned the vehicle over into the side ditch, and the plaintiff was thrown out and quite seriously injured. At the trial below, among other prayers offered by the defendant for instruction to the jury, was one to the effect that there was no evidence legally sufficient upon which the plaintiff could recover. That prayer was rejected; and, upon careful examination of all the evidence contained in the record, this court is of opinion that there was no error committed in the refusal to grant that prayer. The defendant was incorporated by the act of the general assembly passed on the 3d of January, 1816; and its turnpike road was constructed under the provisions of that act, and the supplemental act passed on the 19th of January, 1819. By its charter the defendant was authorized to open and make a turnpike road between the points designated, "not exceeding sixty feet in width, of which twenty feet at least shall be an artificial road, composed of stone, gravel, etc., and erect and keep up bridges over the streams crossing the same." The road was made and has been in use for more than half a century. It appears by the proof offered, both by the plaintiff and defendant, that the road has several curves from the top of the hill to the bridge, at which the accident occurred; and, in the language of the witnesses, it has "some steep grades, and sharp descents," but that the descending grade terminates from 50 to 100 yards before the bridge is reached. It is also shown that the macadamized part of the road varies in width from 25 feet at the top of the hill to about 16 or 17 feet at the bridge; and that the bridge, as it existed at the time of the accident, was about 18 feet wide in the clear. The road-bed, at its immediate approach to the bridge, was four or five feet above the side ditch into which the plaintiff was thrown, and there was no guard-rail along the side of the road as

it approached the bridge. The horse and wagon did not get upon the bridge, but got over the side of the road into the ditch just at the end of the bridge. And the whole question is whether the narrowness of the road-bed, and the failure of the defendant to keep and maintain a sufficient guard-rail on the side of the road as it approached the bridge, constituted such defect and want of safety in the road as to render the defendant liable, if, but for the want of width of road and proper guard-rail, the accident to the plaintiff would not have occurred. The accident, as proved, must be connected with the alleged defect in the road as the cause of the injury. If the road, in its approach to the bridge, was wide enough for the customary travel with safety, those traveling using ordinary care to avoid accidents, and the injury to the plaintiff was occasioned by want of care or skill in driving the horse, or by the vicious and uncontrollable disposition of the horse, not excited by any defect in or unlawful object upon the road, then, unquestionably, the plaintiff would not be entitled to recover; but, on the other hand, if the road was so narrow at the place of the accident as to render it in any degree dangerous or unsafe to persons driving horses of ordinary safe habit, but which might be liable to shy from the road-track, or to take fright, and to plunge into the side ditch below, then it was the duty of the defendant to keep up at least a sufficient guard-rail or barrier, to prevent such accidents. And if the accident to the plaintiff was caused not by his own want of ordinary care, but by reason of the existence of such defect in the road, and the want of proper guard to avoid accidents, the defendant clearly would be liable for any injury sustained. All horses are prone, more or less, to shy or to take fright; indeed, it is part of their natural and probable habit; and they are not condemned as being unfit for road service, because they are liable to such habit. Roads are constructed with reference to this generally known or probable habit of horses; and hence, to make a road safe, the track must be wide enough to allow for the possible shying and starting of teams, without danger to those traveling with them of being thrown over embankments or against obstacles in or along the road; and therefore, if the track is not wide enough for this purpose, and a horse, in starting or running away, without fault of the driver, is brought in contact with a defect within what should be the reasonable limits of the road,. and damage ensues, the managers of the road will be liable. Whart. Neg. §§ 104, 105, 985. There has been some diversity in the opinions of the judges upon this subject; but the principle maintained by a preponderance of decision would seem clearly to be in accordance with that which we have stated. The principle embodied in the first prayer offered by the plaintiff, and which was granted by the court below, is correct, according to the view entertained by this court, and that prayer fairly embraces the law of the case; but its terms are not all free from objection, and it was for that reason calculated to mislead the jury. It should therefore have been either modified or rejected. By granting this prayer the jury were instructed that the defendant was required to make and keep its road, its bridges thereon, and the approaches to such bridges, in such a manner, and so guarded, as to make them safe for persons traveling over the same with ordinary care and caution; and if they should find "that the defendant negligently permitted a part of its road, one of its bridges, and the approach thereto to be in an unsafe condition for persons using the same with ordinary care and caution, and that in consequence of such unsafe condition, the plaintiff, while traveling over said road, and approaching said bridge with ordinary care and caution, was injured as complained of, then the plaintiff is entitled to recover in this action," etc. There was considerable testimony given to show the condition of the bridge; that it was out of repair, and was unsafe. But the defective condition and want of repair of the bridge had no casual connection with the accident; for the plaintiff's horse and wagon, according to all the testimony, his own included, did not get upon the bridge, but they left the track of the road, and got into