Benson v. Loehler

Horney, J., delivered the opinion of the Court. The plaintiff-appellant (Moses Benson) brought this action to recover damages for injuries sustained as the result of striking his head against a steel beam erected above a public alley in Washington, D. C., between buildings belonging to the defendants (James E. Halley 1 and David Keppel). This appeal is from the judgment for costs entered against the plaintiff in favor of the defendants upon the granting by the trial court of a motion for a directed verdict. The beam involved was one of two that had been erected in the year 1921 to support a wooden bridge or catwalk connecting the building—acquired by James E. Halley in December of 1950 or January of 1951—located at 1220-22 North Capitol Street and the building—acquired by David Keppel in the year 1948.—located on the premises across the alley in the back of the Halley Building.

The bridge had been erected at a time when both buildings were occupied by the Washington Planograph Company. The wooden portion of the bridge was removed by the occupant sometime during the year 1950, but the beams were not. The record shows that, although one of them was then an owner, neither of the defendants knew whether a permit had been obtained to remove the structure. The only other evidence on this point was that of a long-time employee of the planograph company.

In answering an interrogatory as to whether a permit had been obtained to remove the bridge, the employee replied “not to my knowledge,” and ⁵⁸ he did not recall whether an inspection had been made by an agent of the Commissioners of the District of Columbia. On the date of the accident there was no sign or other device to warn motorists using the alley of the existence of the beams or the height of the clearance between them and the bed of the alley. After the accident, the officer who investigated it ascertained by measurements he then made that the beams were twelve feet and three inches from the paved surface of the alley and that the height of the trash truck from the ground to the top of the tail gate was nine feet and three inches. On July 2, 1958, the plaintiff, who was an employee of the District Sanitation Department, was tamping or “walking” down trash in the back of the half-filled truck as it passed under the beams in the alley.

At the time he was standing sideways and was watching his feet in order to avoid losing his balance on objects that might be in the trash. He did not see the beams and the side of his head struck one of them. The blow toppled him from the truck into the alley. He sustained numerous injuries, including a fractured leg, as a result of the fall.

The plaintiff had been employed by the department as a trash man for five years, but he was not familiar with that particular route and he had never been in the alley in question before. Normally he worked on the ground in a crew of five as one of the two passers on another route, but on the day of the accident he was working as a “swing man” and was replacing one of the two catchers who usually worked on the truck. (The fifth man of the crew operates the truck as it proceeds slowly from stop to stop through the alleys.) The other catcher, who was working with the plaintiff in the front of the trash bin, passed safely under the beams. He was somewhat shorter than the plaintiff and the trash was lower in front than it was in the back where the plaintiff was working, but he did not see the beams either, and for that reason had no opportunity to warn his fellow worker.

While the record is somewhat confusing as to whether the plaintiff had ever received instructions to the effect that when he was riding on the truck he should always face forward and not backward, it is clear that his foreman had never given the ⁵⁹ plaintiff either an oral or written instruction to that effect. And it is not controverted that when the accident happened, the plaintiff was standing sideways on the truck with his back toward the center of the trash bin. The amended declaration contained two counts. In one of them, the plaintiff, among other things, alleged in effect that despite the duty of the defendants to maintain the buildings in such manner as would leave the alley between them in a reasonably safe condition for those, including himself, lawfully using it, they nevertheless, with knowledge of the hazardous condition created by the beams, negligently and carelessly permitted the beams to remain at a dangerously low height above the alley and failed to warn those lawfully using the alley of the hazardous and dangerous condition.

The other count alleged in effect that the defendants, with full knowledge of the existence of the beams, allowed them to exist in violation of law; that the beams constituted an unlawful and unreasonable obstruction of the alley and a danger and hazard to the safety, health and welfare of the public in its use of the alley in that the beams were at a dangerously low height and that their existence was prohibited by the laws of the District of Columbia; and that such beams did thereby constitute a public nuisance. Before the day of the trial, the plaintiff notified the defendants, pursuant to § 50 of Art. 35 of the 1957 Maryland Code, of his intention to rely on the common law and the statutory law of the District of Columbia as the substantive law of the case. A review of the building codes of the District of Columbia within the last seventy years shows that twelve such codes have been adopted from time to time, but it appears that we are concerned with only two of them: that adopted in 1917, which was in effect on August 21, 1921, when a building permit was issued to the planograph company to erect an open bridge over the alley in question; and that promulgated in 1941, which was in effect in 1950, when the permittee, upon ceasing to use the bridge, removed the wooden superstructure, but not the supporting steel beams. At the time the bridge was ⁶⁰ erected, the building regulations required a clearance of only-twelve feet, and there was apparently no provision then as to its removal in the event the use of it as a bridge was discontinued.

But in 1950, when the wooden parts of the bridge were removed, the required height of such alley bridges as were then permitted had been extended to fourteen feet in the clear above the roadway. See § 406-01 of the Building Code of 1941. And that same code, in addition to providing, by § 110, that all inconsistent regulations theretofore made were thereby repealed, further provided, by § 201-02 (d), that permits for the erection, alteration, repair and removal of buildings and structures and their appurtenances should “be obtained in advance from the inspector of buildings.” When the case was concluded on behalf of the plaintiff, the trial court informed counsel for the plaintiff that if the case was to go to the jury he would be afforded an opportunity to request instructions as to the law. Immediately following this announcement, counsel for the defendants moved for a directed verdict, and after a recess, the motion was granted by the court without stating its reasons for so doing.

However, in the appellant’s brief we are inforrhed that the trial court ruled in chambers that the plaintiff had not established a prima facie case either on the theory of nuisance or negligence, and that the question of whether the plaintiff was contributorily negligent—although presented on the appeal to this Court— was neither considered nor ruled on by the lower court. As a consequence, the principal questions requiring consideration by us is whether the plaintiff had produced evidence from which the jury could have found negligence on the part of the defendants and/or that the defendants were maintaining a nuisance. In this case both of the alleged wrongs arise out of the same facts and circumstances, and, although both causes of action are based on a breach of duty, there is a difference in the nature of that duty and in the resulting consequences. “A nuisance exists because of a violation of an absolute duty so that it does not rest on the degree of care used but rather on the degree of danger existing with the best of care. Negligence, on the other hand, is the violation of a relative duty for fail ⁶¹ ure to use a degree of care required under particular circumstances.” Sherwood Bros., Inc. v. Eckard, 204 Md. 485 , 105 A. 2d 207 (1954).

The Action For Negligence. We must, of course, consider the evidence in the light most favorable to the plaintiff in order to determine whether the ruling of the lower court was proper with respect to the count for negligence. There was evidence, or at least an inference, that the removal of the wooden part of the bridge had dangerously reduced the likelihood of the supporting beams being seen by those who were required to work (as the plaintiff was) in the back of an open trash truck of the kind that were in general use by the sanitation department. There was evidence to support an inference that the owners of the buildings or their predecessors in title may have failed to exercise due care when that part of the alley bridge most likely to be seen was removed without permission and the use of the remaining portion was discontinued.

And there was positive evidence that the obstruction which had been allowed to remain was not posted on the day of the accident with a sign or other device designed to attract the attention of motorists using the alley and thereby warn them of the height of the clearance under the beams. It is therefore the contention of the plaintiff that the cumulative effect of these