Citizens Savings Bank v. Covington

Sloan, J., delivered the opinion of the Court. The Citizens Savings Bank building is located at the southwest corner of Baltimore and Eutaw Streets in Baltimore. In the sidewalk on Eutaw Street there is a sheet-iron door, which affords access to the cellar under the building. It is flush with the surface of the sidewalk, and is raised by an iron handle in the shape of an inverted U which is designed so as to fall of its own weight into place.

On June 8, 1935, about eleven o’clock at night, the plaintiff, Georgia C. Covington, when walking south on Eutaw Street, stepped on the cellar door, where she fell, sustaining injuries which disabled her for some time. As she described the accident, “ * * * my foot caught into something sticking up and it just pushed me ahead; I just fell. I looked around and felt there was a handle right up in the street. * * * It was attached to this trap door * * * it was in an up position. * * * Of course, after I fell I knew my foot had caught into something sticking up, when I felt that I don’t know anything else, I could have tripped over.” She did not see the ⁶³⁵ handle; she “ * * * was looking straight ahead.” The charge in the declaration was “ * * * that the said covering was negligently maintained by the defendant and was in a dangerous condition and unsafe and dangerous to pedestrians walking on said pavement, and that said dangerous condition was well known to said defendant but the same was not known to the plaintiff.” The evidence of the defendant was that the door had been opened but once in 1935—that was in September—and there was no evidence to the contrary. A photographer, whose photograph of the door, with the handle up, was offered in evidence, said: “At the time I went to make the photograph the handle was flattened down with the cellar door, but when I lifted it, that it remained in that position that I placed it because there seemed to be a little rust on it; that is what kept it up.

That is my opinion.” The photograph in the record, which was in evidence before the jury, shows that the handle, when lifted and slightly tilted, may be made a trap in which a pedestrian’s foot may be caught, and thus a structural condition may exist for which the abutting property owner may be held to be liable as being negligent. From this evidence, which is all there is of the accident and conditions there existing, the inference is that some meddler raised the handle and left it in such position as to make it dangerous to pedestrians. Under these circumstances the question is whether there is sufficient evidence of the Citizens Savings Bank’s responsibility for the case to go to the jury. The rule of the liability of an individual with respect to defects in a street, as stated in Cooley on Torts (4th Ed.) sec. 452, is: “If an individual, whether the adjoining owner or not, and whether the fee in the public way is in himself or in the public, does any act which renders the use of the street hazardous or less secure than it was left by the proper public authorities—as by excavations made in the sidewalks, or by unsafe hatchways left therein, or by opening or leaving open areaways in the traveled way, or by undermining the street or- sidewalk —he commits a nuisance, and he is liable to any person ⁶³⁶ who, while exercising due care, is injured in consequence.

If, however, he has the consent of the proper public authorities, and what he does is consistent with the customary use of the way for private purposes—as where he is making connection with a public sewer or with a gas main—and he observes a degree of care proportioned to the danger, and is consequently chargeable with no fault, he cannot be held responsible for accidental injuries, inasmuch as in such case he has failed in the observance of no duty. In the absence of a statute or ordinance changing the rule, an abutting owner is not liable for injuries resulting from his failure to repair a defect in a sidewalk which he had not caused. Canton Co. v. Seal, 144 Md. 174 , 125 A. 63 . The question in all such cases is one of due and proper care.” There is no question of the right of the defendant to maintain the sidewalk entrance to its cellar, but such a right never becomes prescriptive ( Minor Privilege Cases, 131 Md. 600, 619 , 102 A. 1014 ), and the duty to keep it in condition reasonably safe for pedestrians is continuous, regardless of the question of notice.

This is the difference between the public and private liability, where the property owner enjoys privileges appurtenant to his property. To hold the public liable it must have had notice, actual or constructive, while in both instances all that is required of the plaintiff is due and ordinary care to avoid injury. Annapolis v. Stallings, 125 Md. 343 , 93 A. 974 ; Baltimore County v. Collins, 158 Md. 335 , 148 A. 242 ; Baltimore v. Grossfeld, 173 Md. 197 , 195 A. 554 ; McFarlane v. Niagara Falls, 247 N. Y. 340 , 160 N. E. 391 ; Keating v.