Chambers v. Mayor of Baltimore

Bond, C. J., delivered the opinion of the Court. A plaintiff administratrix appeals from a judgment on a verdict for the defendant directed by the court, in a suit for conscious suffering and loss by the decedent prior to death, as a result of a fall on a street or roadway in Baltimore City. Stewart v. United Co., 104 Md. 332 , 65 A. 49 ; Davis v. Ruzicka, 170 Md. 112, 114 , 183 A. 569 . Liability of the city for damages is asserted on the two alternative grounds of failure to keep a public street in repair, or, if the way was not a public one, then of negligent breaking up of the surface in use of it by the city to convey stone and gravel, in trucks, for repairing an alley extending to the rear of the houses along one side.

Two rulings of the trial court are contested, that in directing the verdict for the defendant at the conclusion of the plaintiff’s testimony in chief because it was legally insufficient to support a finding of liability, and a ruling on an objection to a question asked a witness. The way, called Seneca Street, was an unpaved one, twelve or fifteen feet wide, without sidewalks, extending up a hill southerly from a public street in the Woodberry section, and providing a means of reaching houses along ²⁰⁵ the western side. On the eastern side there was a steep bank, not occupied by houses. Seneca Street had never been opened to the public generally.

When first opened it had board steps at the entrance from the public street below; a turnstile was subsequently placed there; and still later, and up to the time of the repairs in the alley, posts were driven into the ground to prevent free entrance. It would appear therefore to have been maintained principally as a foot way. The dwellers along the side threw out their coal ashes and cinders to give a surface to it, and otherwise no repairs were made. To carry off rain water a rise in the road, and a stone gutter on the west side, were made by some of the dwellers.

To use the way for conveying the materials for the alley the posts at the entrance were taken up; and at some time after the accident they were replaced. Meanwhile, during the repair work and subsequently, other vehicles carrying supplies to the houses also made use of it, furniture trucks, delivery trucks, coal trucks, moving trucks, and the like. The work of repairing the alley proceeded during about six weeks prior to, and until, December 24th, 1936. There was testimony that it was done by the city, and the five-ton trucks of the city carried stone and gravel for it over Seneca Street, as stated.

There was evidence, too, that before this use of the way was made the surface was good, but that the city trucks cut it up, making ruts. There was a ditch or rut two feet wide along the westerly side after the completion of the work. In front of one house, No. 3462, the house in front of which the decedent subsequently fell, a wheel of one of the city trucks sank up to its hub, and, upon request of the dweller there, the city subsequently dumped crushed stone into the hole, but not enough to fill it up. There was testimony to the existence of some lesser inequalities of surface due to rain, and some washed out gullies.

It was not stated that any particular rut or hole was made by city trucks. It was not testified that the hole into which the wheel of one truck had sunk up to its hub was