Cordish v. Bloom

Boyd, C. J., delivered the opinion of the court. The appellee sued Abraham Cordish, Frank Schwartz and the Mayor and City Council of Baltimore!, for injuries alleged to have been sustained by him by reason of hisi falling on the sidewalk in front of the premises, owned by Cordish and occupied by Schwartz as tenant, known as Eb. 1022 E. Baltimore Street. The jury rendered a verdict in favor of Schwartz, but against Cordish and the City for $4,000. Separate appeals were taken by Cordish and the City from a judgment entered on the verdict against them.

Sixteen exceptions! were taken to the rulings of the lower court on testi ⁸³ mony and the seventeenth bill of exceptions presents the rulings on the prayers, one of which was offered by the plaintiff as to the measure of damages and granted, the first, second and third of the city were refused and four were granted, and those of Oordish marked No. 4 and No. 5 were granted and No. 1-A, No. 3-A, No>. 6-B and N>. 8-B were refused — the rejected prayers seeking to take the case from thei jury either on the ground that there was no legally sufficient evidence to entitle the plaintiff to recover, or that there was contributory negligence. There is a cellar under the building and an opening in the sidewalk. The opening is in front of a bay-window, or show-window, as one of the witnesses called it. There is what is spoken of as a frame for the iron door1 over the opening, which is a part brick and part stone, and is about four feet long and about three feet wide.

The iron door is a quarter of an inch thick and is attached to the stone of the frame work by two knuckle hinges, so that it opens towards the building-up against the hay-window. When the door is dosed it overlaps the frame a few inches, and at the building line there is an opening of five-eights of an inch between the frame and the cellar door, which gradually tapers to nothing at the end towards the curb of the sidewalk being about one-eighth of an inch at a point half way along the door. The top of the door at the building line! is about three inches above the level of the pavement and at the lower end about two and one-quarter inches. The sidewalk is paved with cement and there is a curve of cement from the sidewalk level to the top of the frame, on the east side of it.

The sidewalk is about twelve feet wide, leaving an unobstructed space between the frame work of the cellarway and the curb of about nine feet. The plaintiff testified that he was walking westerly on Baltimore Street on the way to his work, between half past seven and eight o’clock in the morning, that three or four young ladies were walking in a line, aim in arm, and he stepped out of their way to let them pass, when his right foot caught between the frame and the cellar door, that he tried to pull ⁸⁴ his foot out, fell over and broke his leg. He said that before he was hurt the young ladies had passed him and, in reply to the question how far in front they were when he got to the cellar door, he answered: “Two and a half or three feet; something like that.” He also said that there were a great many people on the pavement at the time, and that he did not know that the cellar door was there, as he usually went to his work another way. He testified that he had on narrow pointed shoes and “it caught me between the cellar door and the frame.” He was asked how close he was to the building line when the tip< of his shoe got caught in the opening”, and replied, “About the middlei of the door; I cannot tell exactly.” He testified that there was an abrasion on the shoe and his daughter confirmed him as to that.

A witness produced by the plaintiff testified that there was quite a crowd walking” along the street at the time of the accident, and he was1 behind the plaintiff and saw him fall; that “there was a stone where the cellar is and he fell over that,” and when asked: “You know what part of the cellar he fell on; did you see exactly how he dropped ?” He answered: “He fell on to* the cellar.” A witness called by the defendant, Oordish, testified: “He gave a sudden slip> and fell, by his slip, he fell on his leg on the door of the cellar and he held out his hand to' me and I picked him up.” When asked what caused him to fall, he said: “Just a sudden slip', a sudden push, it was slippery; he fell on the door of the cellar.” There was thus some conflict in the testimony as to what caused him to fall but that was, of coursei, for the jury, if the case was to be submitted to it, which is the most important question for us to decide. If he in fact fell as described by the witness for the defendant, referred to above, we would have no hesitancy in holding that the plaintiff could not recover, for we would not be willing to hold that there could be a recovery simply because there was a cellar door there in the sidewalk which, being slippery that morning, caused the plaintiff to fall. Ho municipality nor abutting property owner could be held responsible for an injury thus1 caused, ⁸⁵ without imposing a burden which would be unreasonable, and if imposed would prevent the use of parts of sidewalks for purposes which in cities and towns are practically essential to the proper and reasonable enjoyment of property abutting on public streets, and in large cities would require the abandonment of the nse of important spaces- under parts of sidewall® for cellar entrances, coal chutes, vaults, etc-., which would result in serious losses and a waste of valuable space, which can be properly utilized without causing much, if any, inconvenience to the public. But if the accident was caused as the plaintiff claims, them, another question is presented.

While a municipality must generally respond in damages for injuries caused by its negligence, acts or omissions, especially in connection with the public streets and sidewalks under its care and control, there must be a limit to such liability, and it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks, fío city, town or village could maintain a perfectly level or even surface in all of its sidewalks without burdening the property owners with unreasonable and unnecessary taxation, fío resident or visitor of a city, town or village has the right to expect such conditions. Pavements will in timei become irregular and uneven from roots of trees, heavy rains and snows or other causes- Steps, porches, areaways, entrances to cellars, coal chutes and many other things have been and are, still permitted on sidewalks in cities and towns, small and large, but there should be proper regulations!, depending upon the location and the ordinary use of the various streets, aud hence it is difficult-, if not impossible, for courts -to announce rules and principle-si which can be made applicable to all cases involving alleged nuisances or negligence. The Court of Appeals said in Terry v. Perry, 199 N. Y. 79 , 20 Ann Cases, 796 : “This Court has frequently stated the rules of law governing munioipalities in the care of their streets- a-nd sidewalks. Each case must stand upon its own peculiar facts aud the application of such well known rules of law to such facts.” ⁸⁶ Was then the lower court right in refusing to take this case from the jury ?

It was shown by the son of the defendant, Oordish, that a chang'e had been made about 1911 in the entrance to the cellar, which formerly had two iron doors, instead of one as now, and in answer to the question, “Who did the work?” the witness answered, “It was done by the city at that time when they put those wires underground; the city paid forty pea* cent, and we paid sixty pea* cent., and we got a receipt from the contractor when we made the payment.” He said the city inspectora were there and he presumed that the work was done under their supervision but wasi not certain about that. He also said that they closed up one-half of the entrance and covered the other half with one of the iron doors formerly used. He wasi asked: “You made the pavement wider?” And answered, “Yes, made it wider; in fact they asked us to do it at that time; they had to put the wires underground.” There is no contradiction of his testimony and' therefore we find that the city had the work done and paid a proportion of the costs, and we can have no doubt that it is not relieved from liability by reason of the Altvater Case and others following it. Without deeming it necessary to discuss them at length, as is well known, there are two distinct lines of casesi in this State in reference to the liability of Baltimore City.

That is due to the unusual conditions there where the Board of Police Commissioners, who are State officers, and not the Mayor and Council, have control of the police, and hence in Altvater v. Baltimore, 31 Md. 462 , it was held that the city was not responsible for injuries sustained by a pedestrian on- a street by being run down by a sled moving at a rapid rate, as it had no control over the Police Commissioners, who had excluisve charge of the removal of the nuisance complained of. That case was followed by Sinclair v. Baltimore, 59 Md. 592 ; Taxi-Cab Co. v. Baltimore, 118 Md. 359 ; Gutowski v. Baltimore, 121 Md. 502 , and other cases. In Baltimore v. O’Donnell, 53 Md. 110 , where injuries were received while one of the streets was undergoing repairs, by reason of the neglect of the contractor ⁸⁷ employed by the city, who put a rope across the street and suspended a lamp from the rope as a warning", which was broken by some boys,, and the person in charge neglected to repair or replace the lamp and the plaintiff ran into- the rope that night and was injured. The- city was held liable in that case, which has been followed by a number of eases, such as Baltimore v. Beck, 96 Md. 183 , for not having a street light or warning at a place where bricks and other building material were lying, which caused the injury to plaintiff; Baltimore v. Walker, 98 Md. 637 , for injury sustained by the plaintiff falling ove^ a sto-p-hox which projected two or three inches above the pavement; in McCarthy v. Clark, 115 Md. 454 , where a pedestrian fell over a manhole frame left on the pavement; in Baltimore v. Leonard, 129 Md. 621 , for injury sustained by the dress of the plaintiff being caught by a stake projecting about six inches, which was driven in the ground a few inches from a hoard which had been laid from, the sidewalk to the roadway, so- as to enable pedestrians to cross over a ditch made in connection with the improvement of the street, and other eases! in Baltimore.

The last line of eases consists of those where the city is “instrumental in creating the occasion for the obstruction complained of” or takes part in making or causing it. The distinction is pointed out in the cases above cited. Under the circumstances of this case the City of Baltimore, therefore, practically occupies the same position as other cities and towns in the State would be in fo-r injuries sustained by reason of such alleged defects in the sidewalk of a public street as exist in the case now before us. We fully realize the necessity for protecting municipalities and property owners from unreasonable claims or damages for injuries sustained from alleged defeeta on the public streets, but there are some circumstances which would seem to have required the negligence vel non of the defendants to he submitted to the jury.

There is evidence that strongly tends to show that the cellarway was not properly constructed, on a street which is used as that part of Baltimore Street, was used, when at certain hours of the day crowds of people going ⁸⁸ to and from their work were passing this property, and the injury complained of occurred at such a time. If the plaintiff’s own testimony was to he believed, and his credibility was not attacked, he was not familiar’ with that part of the street, did not know that there was a cellar door there, and could not well have seen the opening or height of the door above the level of the pavement by reason of other people passing at the time. It was shown that there were some steps on the street sixteen or eighteen feet east of the cellarway, but they did not project out quite as far as the frame of the cellarway from the building line1, according to the architect who testified, but however that may be, it was west of the steps that he stepped to one side to let the young ladies pass. There wasi evidence that the pavement was below the level of the frame work about two inches, and there was a curve made of cement which went up1 to the top' of the frame from the cement pavement.

On top of the frame the metal door, which was one quarter of an