| Md. | Dec 15, 1847
delivered the opinion of this court.
This was an action on the case instituted in Baltimore County Court, by the appellee against the appellant, to recover
Upon this subject, the plaintiff proved at the trial of the cause, that the area was made by excavating the pavement leading along the north side of Perry street, and it was designed to light the cellar window of the defendant’s house. That it was about a yard deep; that it was protected by neither bars nor covering of any sort for the last twelve years, and that it was, in the opinion of the witness, dangerous.
That the footway between the area and the curb-stone is so narrow that it will not admit two persons to walk side by side. The plaintiff also proved by a witness, that he had measured the area, and that it was fifteen inches wide at its widest projection into the pavement. •
The defendant then proved by a competent witness, that the house of the defendant had been built forty or fifty years since, and that the defendant had purchased it twelve or thirteen years ago; that at the time the defendant purchased the house, the area and window were there, as they are now; that they have not been altered; that the area is a segment of a circle, whose widest part is twelve or thirteen inches, and that the footway left opposite is two feet six inches; that the whole footway is about three feet wide. And on his cross examination, this witness stated, that he remembered the area before the defendant bought the house, and was satisfied that the area is now as it was before the purchase, and that the i space left outside of the said opening, and between it and the curb-stone for a footway, is double the width of the opening_ The plaintiff proved the nature and extent of the injury she received ; and in this condition of the case, the counsel for the defendant asked the court to give to the jury the following instructions:
1st. That if the jury find from the evidence that the plaintiff
2d. That the plaintiff is not entitled to recover for the injury complained of, unless the jury are satisfied from the evidence that the said injury was occasioned by the want of ordinary care and prudence on the part of the defendant, or some agent of his.
3d. That if from the evidence in the cause there is a reasonable doubt in the minds of the jury, whether the said injury complained of by the plaintiff, was occasioned by the want of ordinary care and prudence on the part of the defendant, then the plaintiff' is not entitled to recover.
4th. That the mere existence of the window, as proved in the cause, is not evidence of a want of ordinary care on the part of the defendant, there being no ordinance of the city forbidding it.
The first instruction was granted, and no doubt can be entertained about the correctness of the legal proposition embodied in that prayer, and affirmed by the court.
The established doctrine now is, that although the defendant’s misconduct may have been the primary cause of the injury complained of, yet the plaintiff cannot recover in an action of this kind, if the proximate and immediate cause of the damage can be traced to a want of ordinary care and caution on his part. Under such circumstances he must bear the consequences of his own recklessness or folly.
In the case of Batterfield vs. Forrester, 11 East. 61, Lord Ellenborough said:—
“ A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.
It appears that under the law, as thus expounded by the court, the jury rendered a verdict in favor of the plaintiff, and have therefore negatived the idea that the injury she sustained was attributable to the want of ordinary care and caution on her part.
The second, third and fourth prayers addressed to the court, raised substantially the same question, and were intended to present this proposition: That under the circumstances of this case, the fact, that the defendant permitted this area to remain open, and unguarded, after he became the owner of the house to which it was appurtenant, could not be regarded, in legal contemplation, as constituting a public nuisance, particularly as this wras the exact condition of the premises at the time he purchased them; and that therefore he was not responsible, unless the jury were satisfied that the injury was occasioned by the want of care and prudence on his part. This proposition was over-ruled by the court, and we think correctly. The existence of an area, open and unprotected, like that described by the witnesses in this case, is an unauthorized and illegal obstruction of a public street in a populous city of a most aggravated and dangerous character, and is therefore a public nuisance; and although the defendant did not originate the nuisance, yet as he subsequently became the owner of the house to which it belonged, the law imposed upon him the obligation to render it secure.
In Coupland vs. Hardingham, 3 Campbells Rep. 398, an action was instituted against the defendant for negligence in not railing in or guarding an area before his house in Wood street, Westminster, whereby the plaintiff fell down into the area, and was severely hurt.
It appeared that before the defendant’s house there was an area, which was descended to by three steps from the street, and from which there is a door leading into the basement story
The defence set up was that the premises had been exactly in the same situation as far back as could be remembered, and many years before the defendant was in possession of them. But Lord Ellenborough held :
“ That however long the premises might have been in this situation, as soon as the defendant took possession of them, he was bound to guard against the danger to which the public had been before exposed, and that he was liable for the consequences of having neglected to do so, in the same manner as if he himself had originated the nuisance. That the area belongs to the house, and it is a duty which the law casts upon the occupier of the house to render it secure.”
The case of Coupland vs. Hardingham, which we have just cited from 3 Campb. 398, is similar in all its features to the one at bar, and we consider unnecessary to add a single word to the reasoning of Lord Ellenborough upon this subject. W e think the ruling of the court below was correct upon all the points raised by the defendant’s prayers, and that their judgment must be affirmed.
judgment affirmed.