50 A.2d 246 | Md. | 1946
Appellant, defendant in four damage cases arising out of a collision between two motor vehicles, appeals from a judgment for costs entered in each case in favor of the appellee, a proposed third party defendant. One of the suits was brought in the Baltimore City Court and the other three were brought in the Superior Court of Baltimore City, all against the appellant alone. The appellant, after leave granted, filed a third party complaint in each case, to make the Mayor and City Council of Baltimore, hereinafter called the City, and the appellee, hereinafter called the Gas Company, third party defendants. Both of these third party defendants demurred to the complaint in each case. The demurrers of the City were overruled and it did not appeal. The demurrers of the Gas Company were sustained without leave to amend (one amendment had already been made) and judgments were entered in favor of the Gas Company for costs. The cases were separately appealed, but consolidated by agreement, and were heard together here, as the same questions were involved in all of them.
It appears from the record that on July 27, 1945, about one A.M., on a dark and rainy night, a tractor-trailer, owned and operated by a certain Schoblocher and leased by the appellant, was proceeding in an easterly direction on Wilkens Avenue, a public highway of the City of Baltimore, and approaching the intersection of that Avenue with Brunswick Street. At that intersection Wilkens Avenue ceases to be macadam or concrete across the entire width and begins to be divided by a six-foot grass plot placed in the middle of the highway and extending eastward for many blocks. Starting about three feet east from the west end of the grass plot is a line of 15-foot poles on which are electric lights. These poles are in the center of the grass plot. The light on the one nearest the west end was not lighted. Another tractor-trailer, owned by Willis and operated by a man named Lewis, was proceeding westerly along Wilkens Avenue, approaching the intersection. Upon reaching the *389 grass plot the left front wheel of Schoblocher's tractor hit the curbing around the plot. The tractor turned to its left, struck the lamp post, continued to its left over to the west-bound lane of Wilkens Avenue, and collided with the Lewis tractor. A fire resulted. Schoblocher and a man named Gretsinger, who was riding with him, were killed, Lewis died as a result of the accident, and a man named Gillikin, who was riding with Lewis was injured. The suits were brought by the widow and children of Lewis, by the widow and children of Gretsinger, by Willis for property damage to his truck, and by Gillikin for personal injuries. The question before us is whether the Gas Company is required to answer the allegations of the identical third party complaints filed against it in each of these cases. The answer to that question depends upon whether any actionable negligence is charged against the Gas Company.
Negligence "Necessarily involves the breach of some duty owed by the defendant to the plaintiff * * *." Holler v. Lowery,
The third party complaints describe the accident as follows: "Shortly before the actual impact of the vehicles, the left front wheel of Schoblocher's tractor hit the elevated curbing of a grass plot about six feet wide, more or less, located in the middle of Wilkens Avenue, the physical layout of the grass plot being hereinafter more fully described, and Schoblocher's tractor thereupon turned to its left and a part of his tractor-trailer struck a metal lamp post in the middle of and near the west end of the grass plot and proceeded diagonally to its left in and upon and then partially over and to the left of the grass plot, and into and upon the westbound lane of Wilkens Avenue, and there collided with the oncoming tractor and trailer operated in a westerly direction by Lewis." It is urged by the appellee that this allegation not only does not show that the presence of the lamp post was the proximate cause of the accident, but on the contrary, indicates that the striking of the elevated curbing was such cause, because this is what deflected the Schoblocher tractor and caused it to turn to its left. A number of cases are cited for this conclusion, including County Commissioners v.Collison,
In this oral argument counsel for appellant said that it was intended to allege (and he thought it was sufficiently alleged) that striking the pole further deflected the tractor-trailer to the left and caused the operator to lose control of it. And that this was the proximate cause of the accident. He asked, if the allegations were held insufficient to show that the pole was the proximate cause of the accident, that the Court would give appellant the opportunity to further amend its complaint to correct this defect if it existed. But we pass this request for the moment to consider the basis of the duty claimed to be owed by the appellee.
The complaint, after reciting that the City maintained a series of electric light poles about 15 feet high and about 130 feet apart in the center grass plot, one of them being about three feet from the west end thereof, and making the allegation that the City negligently failed to mark the beginning of the west end of the grass plot and the lamp post with warning signs, shields, lights, barriers and other devices or safeguards to warn eastbound traffic, and after reciting the inadequacy of the lights at the top of the poles to illuminate the hazards there existing and to give proper and sufficient notice, and after further alleging that at the time of the accident and for a number of hours prior thereto the City failed to maintain the electric lights and suffered them to remain out, stated the case against the Gas Company in the following words: "The Gas and Electric Company, by contract with the City, had undertaken for years before the time of the accident complained of to furnish electric current for said lights and to furnish inspectors to inspect the lights and to maintain the said *392 electric lights and their appurtenances and to make necessary repairs and replacements from time to time, and to replace lamp posts knocked down and broken, and to keep the lights burning at night, for the safety of those lawfully using the highway, but the Gas and Electric Company, after due and timely notice during the night of the accident, that the aforesaid lights were out, undertook to make the necessary repairs and replacements in a negligent and careless manner, in that it assigned an insufficient repair force to make repairs and replacements to said lights, thus resulting in unreasonable delay in completing the said repairs and replacements. The Gas and Electric Company for years prior to the accident had knowledge of the dangers incident to the maintenance of a pole at the west end of the grass plot, even with a light burning at the top thereof, without appropriate warning devices at or near the base thereof to warn eastbound traffic of the presence of said pole and of the dangerous and hazardous obstructions in the form of the grass plot and its elevated curbing and the metal pole there located. The Gas and Electric Company had repeatedly on numerous occasions prior to the accident replaced said pole with new poles at the same location as and when the pole was frequently hit and knocked down by the motoring public, said pole having been frequently struck and knocked down even when the lights were burning and when conditions of visibility were much more favorable to the motoring public than on the dark and rainy night when the accident complained of occurred. The Gas and Electric Company had warned the City of the dangers incident to the maintenance of a metal pole at the west end of the grass plot without proper and adequate warning devices. The Gas and Electric Company continuously for a long time prior to the accident negligently participated with the City in maintaining, reconstructing and continuing the presence of said dangerous obstruction and public hazard and nuisance, and repeatedly, for profit, replaced the pole at the same location from time to *393 time, well knowing the dangers incident thereto, but, nevertheless, continued in its positive and affirmative acts of misfeasance and negligence in perpetuating the dangerous condition, with full knowledge of the negligent failure on the part of the City to heed repeated warnings to establish effective, safe and adequate warning devices at or near or upon said pole and grass plot to warn eastbound traffic. The Gas and Electric Company owed a duty to the public to desist from the continued erection and maintenance of said metal pole creating in the manner as aforementioned a dangerous obstruction and public hazard and nuisance; but the Gas and Electric Company violated its said duty by continuing the maintenance of said dangerous obstruction and public hazard and nuisance."
These allegations embody two charges of failure of duty. The first is the delay in making the necessary repairs and replacement so that the light on the pole which was struck would be burning. The second is the participation of the Gas Company with the City in keeping a pole at the location three feet from the west end of the grass plot and replacing it there from time to time without any effective and safe warning devices. This last charge is the main basis of the appellant's claim. It contends that the pole was an obstruction of the highway, that it was a public nuisance, and that, as the Gas Company put up the pole (although it belonged to the City and its location was determined by the City) and as the Gas Company knew that as erected and maintained it was dangerous, the Gas Company owed a duty to the public, either to refuse to erect the pole, or to provide warning devices to notify travellers. The appellant says that if the Gas Company is an independent contractor nevertheless it is liable, even after the completion of the work, if the finished job creates a nuisance, and cites as authorities for this position, among others, Wilson v. Peto, 6 Moore 49, 14, R.C.L. 107, Sec. 42; 4 Dillon on Municipal Corporations, (5th Ed.), Secs. 1723 and 1724; Thompson v. Gibson, 7 M. W. 456 (1841); *394 Maenner v. Carroll,
Without discussing all these cases in detail (and they are not all in point), they seem to substantiate the general statement made by Judge Alvey in Maenner v. Carroll,
In the case of Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427, the suit was by the City which had paid damages to an injured pedestrian for re-imbursement by the owner of a building lot who had excavated an area in a sidewalk. The contractor who was still doing the work was not a party to the case. The Court held the owner liable because the excavation necessarily constituted an obstruction or defect in the street which rendered it dangerous as a way of travel unless properly guarded.
The case of Bass Canning Co. v. MacDougald Construction Co. etal., 1932,
The case of Dunlap v. Raleigh, etc., Railroad Co.,
In the case of Cochran v. Sess,
In the case of Carson v. Blodgett Construction Co., 189 Mo. App. 120, 174 S.W. 447, the defendant was making an excavation for the basement of a building in Springfield, Missouri, under contract with the owner. The blasting was done by a sub-contractor. The plaintiff was injured driving along the public street. The contractors in that case were said to be in the same status as owners, as far as the sub-contractors were concerned, and it was held they are liable because the work was inherently dangerous.
In the case of Pennsylvania Steel Co. v. Elmore, etc., Co., C.C., N.D.N.Y., 175 F. 176, 183, involving a construction of a bridge over the Potomac River at Williamsport, Maryland, the Elmore Co. agreed to construct piers for the bridge as sub-contractors for the general contractor. One of the piers was alleged to have been faultily constructed by the fraudulent mixing of improper concrete. The piers as thus constructed were turned over with latent defects in them. The plaintiff then placed a superstructure, tools and machinery upon the pier and the latter collapsed, whereupon the plaintiff sued the sub-contractor. The Court held the defendant liable, saying "The complaint states a good cause of action in either aspect; that is, as one to recover damages for a willful tort or wrong, or as an action to recover damages for negligence."
In the case of Schumacher v. Carl G. Neumann Dredging etc.Co.,
In the case of Cordish v. Bloom,
In the case of Ryan v. Feeney etc. Building Co.,
We may, therefore, conclude that the weight of authority is that a contractor, even after he has completed his work, may be held liable in damages if such work is inherently dangerous and constitutes a public nuisance. It does not necessarily follow that the complaint here states a good cause of action. An electric light pole is not of itself a nuisance, although it may become one by *398
reason of its location. Burley v. Annapolis,
In the case of Garrett v. Lake Roland El. Railway Co.,
In Poole v. Falls Road Electric Ry. Co.,
The case of Meese v. Goodman,
The case of Green v. Baltimore,
In the case of Northern Transportation Co. v. Chicago, 9 U.S. 635, 25 L. Ed. 336, the Supreme Court had before it a case where the plaintiffs were the lessees of a lot and claimed that by the operations of the City in constructing a tunnel along the street and under the Chicago River, they were deprived of access to their premises during the prosecution of the work. The case was argued on the assumption that the erection of the cofferdam constituted a public nuisance. The Court said, "that cannot be a nuisance, such as to give common law right of action, which the law authorizes."
The City of Baltimore had authority (Code Pub. Local Laws, Art. 4, ยง 6 (26)(a) to (d) (g) (h) (j) (m), Sec. 85 A (2), (5) to establish a grass plot in the center of the highway and to provide for electric lights to be placed on poles located within that grass plot. The location of the poles was determined not by the Gas Company, but by the City authorities. It is true, there is no ordinance or act of the legislature which fixes the location of the poles, as was the case in Meese v. Goodman,supra. Nevertheless, even in that case, the administrative authorities of the City determined the exact point *401 of location of each pole, although an ordinance required the poles to be in the center of the bridge. We see no distinction in a situation such as that, and the case before us where the poles are located according to the judgment of the City department having charge of such matters. In either case the poles are located by competent municipal authority and, therefore, are not nuisances per se.
The allegations of the complaint do not show that the electric light pole located off of the travelled portion of the highway and three feet inside of the grass plot in the center of that highway, of itself constituted such a dangerous instrumentality as to make the contractor who placed it there liable. If it was improperly placed (and as to this we express no opinion) the fault was that of the City which located it there. The fact that other accidents have happened at this place and poles, there prior to the present replacement, have been knocked down, is not sufficient to show that the pole itself is a nuisance. The pole could not be reached by a vehicle unless the latter went off of that portion of the highway reserved for travel, and on to the grass plot in the middle. The cause of the present accident or of the preceding accidents cannot be attributed to the pole alone, if at all. The absence of warning signs or lights is a matter entirely in the control of the City, and if such absence caused the present accident, it is something which the City alone, and not the Gas Company, could have remedied. The nuisance, if there was a nuisance, and the dangerous condition, if there was such a condition, was not due to the pole. It was due, if it existed, to the establishment of a grass plot in the center of the highway, without proper warning of its beginning to approaching travellers, and without proper lighting. To this condition the pole was only incidental. We do not think the Gas Company can be held liable for creating or maintaining a nuisance under the circumstances alleged, and we do not think that the amending of its complaint, as suggested by counsel, so as to show that the *402 pole deflected the tractor-trailer, would help its case in this respect.
The remaining question is the negligence charged against the Gas Company for failing to make the necessary repairs and replacements of the lighting system, with the result that there were no lights on the pole at the time of the accident. There is some doubt in the way the complaint is worded, whether the absence of these lights contributed to the accident, in view of the statement made that "said lights, even when burning, were inadequate and insufficient to give proper and sufficient notice and warning to the east bound travelling public of the presence of the dangerous and hazardous obstructions in the form of the said grass plot with its elevated curbing and lamp posts." We will assume, however, that it was intended to charge that the absence of lights was a contributing cause and, on that assumption, will discuss the appellant's claim.
The Gas Company is not charged with using its electric current in any dangerous manner or, by its use, creating any dangerous condition. What it is charged with is a non-performance of its contract with the City. For such non-performance the greater weight of authority is that it is liable only to the City and that it owes no duty to the general public for which it may be made responsible by an action in tort for negligence. In the case of Consolidated Gas Company v. Connor,
This is the principle established and laid down in the Water Company cases. In German Alliance Ins. Co. v. Home WaterSupply,
There is a case in the Court of Errors and Appeals of New Jersey, which is strikingly similar to the case at bar; that is,Cochran v. Public Service Electric Co., 97 N.J.L., 480, 117 A. 620, 621. In that case the plaintiff was injured while driving a truck in Newark. The accident happened at about 4:30 A.M. on Clinton Avenue. There were, on that Avenue, safety aisles with upright standards for electric lights, which the defendant was under contract with the City to light. The lights were out. The Court denied liability, saying, "But, when the only complaint *405 is of a failure to perform a contract, as in the present case, the right of action is a right of the promisee under the contract unless it clearly appears that the parties intended that a third party should have a right of action on the contract. In determining whether it was meant to give a third party that right, an important consideration is that in a contract the parties select for themselves to whom they will incur liability; in a tort there is a general liability to any one to whom a duty may be owing who may be injured. Whether there is a breach of contract and a right of action in a third party is a question of intent."
The appellant contends that the application of these cases to the case at bar is prevented by two decisions of this Court. The first of these is Walters v. Baltimore Ohio Railroad Co.,
Our conclusion on this contention of appellant is that by the contract as set out in the complaint, there is indicated no intent that the Gas Company should become liable to the general public for its failure to carry out its agreement with the City. It, therefore, follows that it is not responsible to the plaintiffs in these cases, for its failure to keep the lights burning.
Since no actionable liability was alleged against the appellee in the appellant's third party complaints, the demurrers interposed on behalf of the Gas Company were properly sustained by the lower court. The judgment will be affirmed.
Judgment affirmed with costs. *407