113 A. 578 | Md. | 1921
The appellee sued Abraham Cordish, Frank Schwartz and the Mayor and City Council of Baltimore, for injuries alleged to have been sustained by him by reason of his falling on the sidewalk in front of the premises, owned by Cordish and occupied by Schwartz as tenant, known as No. 1022 E. Baltimore Street. The jury rendered a verdict in favor of Schwartz, but against Cordish and the City for $4,000. Separate appeals were taken by Cordish and the City from a judgment entered on the verdict against them. Sixteen exceptions were taken to the rulings of the lower court on testimony *83 and the seventeenth bill of exceptions presents the rulings on the prayers, one of which was offered by the plaintiff as to the measure of damages and granted, the first, second and third of the city were refused and four were granted, and those of Cordish marked No. 4 and No. 5 were granted and No. 1-A, No. 3-A, No. 6-B and No. 8-B were refused — the rejected prayers seeking to take the case from the jury either on the ground that there was no legally sufficient evidence to entitle the plaintiff to recover, or that there was contributory negligence.
There is a cellar under the building and an opening in the sidewalk. The opening is in front of a bay-window, or show-window, as one of the witnesses called it. There is what is spoken of as a frame for the iron door over the opening, which is a part brick and part stone, and is about four feet long and about three feet wide. The iron door is a quarter of an inch thick and is attached to the stone of the frame work by two knuckle hinges, so that it opens towards the building-up against the bay-window. When the door is closed it overlaps the frame a few inches, and at the building line there is an opening of five-eights of an inch between the frame and the cellar door, which gradually tapers to nothing at the end towards the curb of the sidewalk being about one-eighth of an inch at a point half way along the door. The top of the door at the building line is about three inches above the level of the pavement and at the lower end about two and one-quarter inches. The sidewalk is paved with cement and there is a curve of cement from the sidewalk level to the top of the frame, on the east side of it. The sidewalk is about twelve feet wide, leaving an unobstructed space between the frame work of the cellarway and the curb of about nine feet.
The plaintiff testified that he was walking westerly on Baltimore Street on the way to his work, between half past seven and eight o'clock in the morning, that three or four young ladies were walking in a line, arm in arm, and he stepped out of their way to let them pass, when his right foot caught between the frame and the cellar door, that he tried to pull *84 his foot out, fell over and broke his leg. He said that before he was hurt the young ladies had passed him and, in reply to the question how far in front they were when he got to the cellar door, he answered: "Two and a half or three feet; something like that." He also said that there were a great many people on the pavement at the time, and that he did not know that the cellar door was there, as he usually went to his work another way. He testified that he had on narrow pointed shoes and "it caught me between the cellar door and the frame." He was asked how close he was to the building line when the tip of his shoe got caught in the opening, and replied, "About the middle of the door; I cannot tell exactly." He testified that there was an abrasion on the shoe and his daughter confirmed him as to that. A witness produced by the plaintiff testified that there was quite a crowd walking along the street at the time of the accident, and he was behind the plaintiff and saw him fall; that "there was a stone where the cellar is and he fell over that," and when asked: "You know what part of the cellar he fell on; did you see exactly how he dropped?" He answered: "He fell on to the cellar." A witness called by the defendant, Cordish, testified: "He gave a sudden slip and fell, by his slip, he fell on his leg on the door of the cellar and he held out his hand to me and I picked him up." When asked what caused him to fall, he said: "Just a sudden slip, a sudden push, it was slippery; he fell on the door of the cellar."
There was thus some conflict in the testimony as to what caused him to fall but that was, of course, for the jury, if the case was to be submitted to it, which is the most important question for us to decide. If he in fact fell as described by the witness for the defendant, referred to above, we would have no hesitancy in holding that the plaintiff could not recover, for we would not be willing to hold that there could be a recovery simply because there was a cellar door there in the sidewalk which, being slippery that morning, caused the plaintiff to fall. No municipality nor abutting property owner could be held responsible for an injury thus caused, *85
without imposing a burden which would be unreasonable, and if imposed would prevent the use of parts of sidewalks for purposes which in cities and towns are practically essential to the proper and reasonable enjoyment of property abutting on public streets, and in large cities would require the abandonment of the use of important spaces under parts of sidewalks for cellar entrances, coal chutes, vaults, etc., which would result in serious losses and a waste of valuable space, which can be properly utilized without causing much, if any, inconvenience to the public. But if the accident was caused as the plaintiff claims, then another question is presented. While a municipality must generally respond in damages for injuries caused by its negligence, acts or omissions, especially in connection with the public streets and sidewalks under its care and control, there must be a limit to such liability, and it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks. No city, town or village could maintain a perfectly level or even surface in all of its sidewalks without burdening the property owners with unreasonable and unnecessary taxation. No resident or visitor of a city, town or village has the right to expect such conditions. Pavements will in time become irregular and uneven from roots of trees, heavy rains and snows or other causes. Steps, porches, areaways, entrances to cellars, coal chutes and many other things have been and are still permitted on sidewalks in cities and towns, small and large, but there should be proper regulations, depending upon the location and the ordinary use of the various streets, and hence it is difficult, if not impossible, for courts to announce rules and principles which can be made applicable to all cases involving alleged nuisances or negligence. The Court of Appeals said inTerry v. Perry,
Was then the lower court right in refusing to take this case from the jury? It was shown by the son of the defendant, Cordish, that a change had been made about 1911 in the entrance to the cellar, which formerly had two iron doors, instead of one as now, and in answer to the question, "Who did the work?" the witness answered, "It was done by the city at that time when they put those wires underground; the city paid forty per cent. and we paid sixty per cent., and we got a receipt from the contractor when we made the payment." He said the city inspectors were there and he presumed that the work was done under their supervision but was not certain about that. He also said that they closed up one-half of the entrance and covered the other half with one of the iron doors formerly used. He was asked: "You made the pavement wider?" And answered, "Yes, made it wider; in fact they asked us to do it at that time; they had to put the wires underground." There is no contradiction of his testimony and therefore we find that the city had the work done and paid a proportion of the costs, and we can have no doubt that it is not relieved from liability by reason of the Altvater Case and others following it. Without deeming it necessary to discuss them at length, as is well known, there are two distinct lines of cases in this State in reference to the liability of Baltimore City. That is due to the unusual conditions there where the Board of Police Commissioners, who are State officers, and not the Mayor and Council, have control of the police, and hence inAltvater v. Baltimore,
There was evidence that the pavement was below the level of the frame work about two inches, and there was a curve made of cement which went up to the top of the frame from the cement pavement. On top of the frame the metal door, which was one quarter of an inch thick, was placed, and by reason of the use of the knuckle hinges on top there was an opening between the metal door and the frame work of the size spoken of above. There seems to be some confusion in the record about the height of the top of the metal door above the level of the pavement, but assuming the frame to be two inches above, it was two and seven-eighths inches above the level of the pavement, at the end towards the show-window. The opening at that point is seven inches from the show-window line and, while between the metal door and the curb it tapers off to nothing, the frame work is still above the pavement. When the change was made in 1911 there was no necessity for leaving the frame work so high above the pavement, and still less reason for the opening caused by placing the metal door as it was. An ordinance of the city was introduced in evidence which provided that "All covers for openings in sidewalks should be flush with the pavement and securely fastened and guarded when open." Although we do not mean to hold that the expression "flush with the pavement" must in every case be construed so literally as to make *89 the city liable for even the slightest variation from that, the testimony shows how easily the door could have been placed so that it would be level with the frame work, and while it was being fixed, the curve in joining the pavement to the frame work could have been avoided by lowering the frame work or raising the concrete pavement gradually to its level, and not have it as the witness described it when he said, "part of the pavement is brought up within about three inches of the edge of this frame work and dished right up like that (indicating), it is not a gradual curve but almost a true curve." Anyone walking along that part of the pavement would have to raise his foot nearly three inches, in order to get it on top of the metal door. While the opening between the metal door and the frame work does taper to nothing, the thickness of the door and the height of the frame work above the pavement was still to be overcome, and it must be remembered that the curve from the pavement to the top of the frame work only began three inches from the latter.
It is not altogether clear how the plaintiff could have caught his foot in the opening, especially towards the middle of the door, where he said he was caught, although he could not be certain about the exact place, but he testified that it was so caught and he and his daughter testified as to the condition of the toe of his shoe after the accident. Then the architect testified, after describing the construction, "and it causes a sort of trap for anyone to catch his foot in." On motion that was struck out and he was then asked without objection: "Without using the word `trap,' is it big enough to catch the front part of a foot in," and answered, "Oh, yes." Then a witness named Plaine testified: "I myself stumbled over that very trap on Baltimore Street." He said it was about one o'clock in the afternoon, about a year before he saw the plaintiff in the hospital, and upon being asked, "Did any part of your foot get caught," replied, "Part of the toe got caught in there." The plaintiff's daughter also testified that she had seen another man fall there, but judging from the description it was apparently Plaine. Another witness, who was familiar *90 with the place and saw the plaintiff fall, said: "I told you anybody who passed there and got his foot hooked in the door would fall," but that witness also said that in the thirteen years he had lived in the neighborhood he had not seen any other person fall. Still another witness testified that he fell on that cellar door the summer before he was testifying. He explained how he fell by saying, "I come in that store right often and one time I come in the store and I was told that some fellow was looking for me who was just in the store and I left the store and my foot got hooked in the cellar door and I fell down, that's all I know." That witness also said that the door would be raised higher when there is dirt in between the door and the frame, that he was running past the cellar door quickly and if he had looked he would not have fallen.
Reference was made by the appellee to the fact that the jury by consent visited the premises and saw the actual conditions. The case of Maryland, D. V. Railway v. Hammond,
We have referred at unusual length to the evidence, and we have referred to some which was excepted to but which we think was admissible, as will be shown later, and we have reached the conclusion that there was no error in rejecting the city's prayers No. 1 and No. 2 and Cordish's prayer No. 1-A as to the legal sufficiency of the evidence. We will not prolong this opinion by quoting from our decisions as to when a case should be submitted to the jury, as the principle is too well settled and too frequently referred to, to require us to do so. We are also of the opinion that the city's prayer No. 3 and Cordish's prayers No. 3-A, No. 6-B and No. 8-B, in reference to contributory negligence, were properly rejected. The prayers granted for the several defendants on the subject covered the ground as favorably as they had the right to ask. We will not quote from our decisions on this point but will refer to McCarthy v. Clark,supra; Annapolis v. Stallings,
It only remains to refer to the exceptions to rulings on the admissibility of evidence. What we have already said indicates our views on the more important ones. There certainly was no reversible error in the first exception. It was proper to prove, as was done in the second exception, how the cellar door could have been constructed so as to avoid the conditions complained of. It is true that neither the city nor the owner of the property was required to use the very best methods, if several were proper, but if this accident could have been avoided by adopting such simple methods as those suggested by the architect, it would not be unreasonable to require the changes to be made. The third, fourth, fifth, sixth and eighth exceptions, which relate to the testimony as to injuries sustained by other persons by this cellarway, can be considered together. In Terry v.Perry, supra, the Court of Appeals of that State referred to a number of cases to the effect that a municipality would not be held, as a matter of law, responsible for injuries arising from slight depressions or differences *92
in grade of sidewalks, except when the depression is peculiar and especially calculated to result in injury to pedestrians, and held that the defect in that case was so slight that it was not in excess of similar defects found in great numbers in every village and city, and then went on to say: "In cases where the depression or difference in grade is slight, even where under the rules of this Court they are so slight that as a matter of law they are not ordinarily sufficient on which to base a recovery against a municipality, evidence of the experience of others in tripping or falling over the same is competent for the purpose of showing, if true, that there is something peculiar or unusual about the formation of the difference in grade or of the depression that makes it dangerous to an extent that an ordinarily prudent person in charge of sidewalks, with knowledge of such peculiar depression, would repair it." Amongst other cases cited was Gastel v. New York,
In Wise v. Ackerman,
It is perhaps well to add that we have referred more to the City of Baltimore in what we have said than to the property owner, because there were reasons alleged for it not being liable which would not apply to him, but what we have said is sufficient to show that we are of the opinion that the case was properly submitted to the jury as to both defendants, and there was no reversible error affecting either.
Judgment affirmed in both appeals, each appellant to payone-half of the costs. *95