46 Md. 193 | Md. | 1877
delivered the opinion of the Court.
The declaration in this case contains ten coants; and to the third, fourth, fifth, sixth, seventh and eighth, the defendants demurred ; and to the other counts there were pleas filed, and issues joined. The demurrers were sustained, and upon the trial of the issues of fact a verdict was rendered for the defendants. The plaintiff has appealed, and we are now' called upon to review the rulings of the Court helow.
The third count, the first demurred to, alleges that the defendants were owners of a certain open and unenclosed lot of ground within the limits of the City of Baltimore, and that persons were in the hahit of passing over the same; and that the defendants cut on such lot, in a dangerous and exposed portion thereof, a deep excavation, and left the same in a dangerous condition, and liable to injure persons passing over the said lot; and that the plaintiff, while passing over said lot, on a certain night, being ignorant of the excavation, fell therein and was injured.
This count entirely fails to state a sufficient cause of action. To constitute a good cause of action, in a case of this nature, there should he stated a right on the part of the plaintiff, a duty on the part of the defendants in respect to that right, and a breach of that duty by the defendants, whereby the plaintiff has suffered injury. Here .there is nothing of the sort shown. All the facts alleged in this count may he true, and yet the plaintiff would have no right of action against the defendants. The fact that persons were in the habit of passing over the lot, gave to the plaintiff no right to do so; and unless there was such right there was no breach of duty on the part of the defendants in cutting and leaving open the
As is stated in the plaintiff’s brief, the fourth count differs from the third in alleging that there was a public higlaoay across the lot, and that the defendants permitted a deep excavation to be cut over the lot and across this highway, and the plaintiff, while walking on the highway at night, fell into the excavation and was injured. And the fifth count differs from the fourth only in alleging that there was a roadway in public general use across said lot, instead of a public highway, as alleged in the fourth count. But,., in considering the questions that arise on these counts, the difference mentioned may be treated as matter of form rather than substance, as by so doing the fifth count is taken in the most favorable sense to the plaintiff, which, under the well established rules for the construction of pleadings, is not allowed.
Here, the allegation is, not that the defendants cut the excavation, and left it in a condition dangerous to persons passing along the highway, but that they permitted others to do so. How permitted ? The sufficiency of this allegation turns upon the word “ permitted.” In what particular sense it was used by the pleader is altogether uncertain. It may be, for aught that appears on the face of these counts, that the defendants permitted the excavation by their mere silence and failure to interfere, or by not taking active measures to prohibit the making of the excavation over the lot and across the highway. Where there is want of certainty in the allegation of a pleading, the general rule is, that the sense of the averment is to be taken most strongly against the pleader; Chit. Pl., 237, 238 ; and giving to the defendants the benefit of this rule, the counts under consideration fail to state a sufficient cause of action. Mere permission in the sense suggested, would not be sufficient to render the defendants liable, without something more. It does not follow that because the defendants are the owners of the lot that they are liable for all the nuisances that may be created thereon, no matter by whom. This is illustrated in the case of land
By the seventh count, also demurred to, it is alleged that the defendants were the owners of a certain lot of ground, over which, for many years, they had permitted all persons to cross and recross at pleasure, without hindrance or interruption; and that under and by virtue of this permission, leave and license, the public generally were in the habit of crossing and recrossing said lot at pleasure; and-that the defendants, with knowledge of this general user by the public, and without notice or warning, and without revoking the permission or license, cut a deep trench through said lot, and across the usual road or pathway on which persons were in the habit of crossing said lot, and left open and unguarded said trench or excavation ; and that the plaintiff, without knowledge of the existence of the excavation, while crossing the lot on the usual road at night, fell into the excavation and was injured.
It is clear, there is nothing here alleged to constitute a public nuisance; and the only question is, whether the allegation that the defendants permitted all persons to cross and recross the lot at pleasure, without let, hindrance or interruption, and that the public generally were in the habit of so crossing and recrossing the same, under and by
In the case of Hounsell vs. Smyth, 7 C. B., (N. S.,) 731, the declaration stated that the defendants were seized of certain waste land, upon which there was a quarry worked by certain persons subject to the payment of certain royalties to the defendants; that this waste land was open to the public, “and that all persons having occasion to pass over the toaste land had been used and accustomed to go upon and across the same without interruption or hindrance from, and with the license and permission of, the owners of the waste land;” that the quarry was dangerous to those who might have occasion to cross over the waste, etc., and that the defendants, knowing the premises, negligently and contrary to their duty, left the quarry unfenced and unguarded, and took no care and used no means for guarding or protecting persons passing over the waste land from falling into the quarry; and that the plaintiff, while crossing the waste, not being aware of the existence of the quarry, and being unable to see it by reason of the darkness of the night, fell therein and broke his leg. Upon demurrer to this declaration, it was held, that there was no cause of action disclosed; and the Court, in its judgment, said: “Ho right is alleged. It is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; — that they were not churlish enough to interfere with any person who went there. One who thus uses the waste has no right to complain of an excavation he finds there. He must take the permission with its concomitant conditions, and, it may be, perils.” If that
There is no doubt, however, of the general proposition, that an obstruction or excavation made on a party’s own land, and lawfully made, may give rise to an action, upon proof that such obstruction or excavation was concealed, and the plaintiff was invited or induced by the act or conduct of the defendant to pass over or near such obstruction, in ignorance of its existence, whereby injury resulted. In such case the plaintiff would have a right to rely upon the good faith of the defendant. And to this effect are several of the authorities relied on by the plaintiff’s counsel in this case; but there is nothing shown on the face of the count under consideration to justify the conclusion that the plaintiff was in any manner invited or induced, by any act of the defendants, to pass over the lot where the accident occurred.
It follows, from what we have said, that the Court below committed no error in sustaining the demurrer to
And having disposed of the questions raised on the pleadings, we have now to consider the questions raised by the prayers which were ruled upon by the Court below, and embraced by the hill of exceptions taken by the plaintiff.
The question as to whether there was a public road or thoroughfare through or over the lot was fully submitted to the jury by the Court in granting the first and fifth prayers of the plaintiff; and as that question has been negatived by the finding of the jury, there should he no longer any contention in regard to that fact. It may, therefore, he assumed and taken as an ascertained fact that there was no such road or thoroughfare as that put to the jury to find in the prayers referred to.
Upon careful examination of the case, we think the plaintiff obtained all the instruction to which he was entitled in the granting of his first, fifth, eleventh and twelfth prayers ; and indeed, it may be questioned, whether he was not allowed to occupy a more favorable position before the jury than he was entitled to occupy, in view of the evidence of the case, and especially that produced by himself.
He proved by Hay, the contractor for grading Cole street, that he, Hay, was engaged in the business of grading, curbing and paving streets ; and that he graded Cole street from the west building line of Mount street to the east line of Eulton street, under an agreement with James Carroll, acting for himself and the other heirs of Charles
The defendants gave evidence to disprove the existence o'f any established roadway over the lot; and proved by Hay, the contractor, that shortly after he made the contract for grading Cole street, he ploughed up the entire surface of the street hed, between Mount and Fulton streets, and that this ploughed'surface was visible to everybody down
There was no evidence whatever that any of the defendants ever exercised any control or supervision over the work, except as they were owners of the lot and had contracted with a competent workman to grade the street as laid out and defined on the city map, according to the gradient established by the municipal authorities. The contracting for the work was certainly a lawful act, and the making of the excavation, which was necessary in the execution of the work, was equally so ; and in order to render the defendants liable there must be shown a breach of duty by them to the plaintiff, in respect to some right of his to pass and repass over the lot.
The question of the existence of a public highway or thoroughfare having been settled by the verdict of the jury adversely to the plaintiff, he now attempts to maintain a right to pass over the lot by what is called an implied or constructive license from the defendants. - It was not proved, nor is it contended, that there was ever any express license or consent given either to the plaintiff or to the public generally to pass and repass over the lot; but
The principles we have stated fully cover all the facts of this case; and we think the Court below was entirely right in rejecting the second prayer of the plaintiff, and in granting the seventh prayer of the defendants, to the effect that there was no sufficient evidence in the cause of the exist
The third prayer of the plaintiff was properly rejected, upon the ground that the mere implied or constructive license sought to be deduced from the facts therein stated, gave the plaintiff no right, and imposed no obligation upon the defendants, according to the principles heretofore stated. And the fourth prayer would seem to present substantially the same question as the first, and is therefore immaterial, inasmuch as the first was granted ; and the seventh, eighth and ninth prayers were also properly rejected upon the same principle that the third was rejected; and the tenth was rejected for reasons apparent upon the face of the prayer itself, and because in conflict with the principles herein expressed.
The third prayer on the part of the defendants, which was granted, we do not understand to be controverted by the plaintiff; and we think the other prayers of the defendants which were granted were all free from objection, upon the principles we have stated in reference to the propositions made by the plaintiff. And it follows, therefore, that there was no error committed by the Court below, in its rulings upon the prayers of the respective parties.
While the case was being argued before the jury, one of the plaintiff's counsel in support of his argument that there was evidence to establish the existence of a public highway over the lot, proposed to read to the jury a rejected prayer offered by the defendants, to the effect that there was no sufficient evidence in the cause of such high
Finding no error in any of the rulings of the Court below, we shall affirm its judgment.
Judgment affirmed.