East Coast Freight Lines, Inc. v. Consolidated Gas, Electric Light & Power Co.

³⁸⁸ Marbury, C. J., delivered the opinion of the Court. Appellant, defendant in four damage cases arising out of a collision between two motor vehicles, appeals from a judgment for costs entered in each case in favor of the appellee, a proposed third party defendant. One of the suits was brought in the Baltimore City Court and the other three were brought in the Superior Court of Baltimore City, all against the appellant alone. The appellant, after leave granted, filed a third party complaint in each case, to make the Mayor and City Council of Baltimore, hereinafter called the City, and the appellee, hereinafter called the Gas Company, third party defendants.

Both of these third party defendants demurred to the complaint in each case. The demurrers of the City were overruled and it did not appeal. The demurrers of the Gas Company were sustained without'leave to amend (one amendment had already been made) and judgments were entered in favor of the Gas Company for costs. The cases were separately appealed, but consolidated by agreement, and were heard together here, as the same questions were involved in all of them.

It appears from the record that on July 27, 1945, about one A. M., on a dark and rainy night, a tractor-trailer, owned and operated by a certain Schoblocher and leased by the appellant, was proceeding in an easterly direction on Wilkens Avenue, a public highway of the City of Baltimore, and approaching the intersection of that Avenue with Brunswick Street. At that intersection Wilkens Avenue ceases to be macadam or concrete across the entire width and begins to be divided by a six-foot grass plot placed in the middle of the highway and extending eastward for many blocks. Starting about three feet éast from the west end of the grass plot is a line of 15-foot poles on which are electric lights. These poles are in the center of the grass plot.

The light on the one nearest the west end was not lighted. Another tractor-trailer, owned by Willis and operated by a man named Lewis, was proceeding westerly along Wilkens Avenue, approaching the intersection. Upon reaching the ³⁸⁹ grass plot the left front wheel of Schoblocher’s tractor hit the curbing around the plot. The tractor turned to its left, struck the lamp post, continued to its left over to the west-bound lane of Wilkens Avenue, and collided with the Lewis tractor.

A fire resulted. Schoblocher and a man named Gretsinger, who was riding with him, were killed, Lewis died as a result of the accident, and a man named Gillikin, who was riding with Lewis was injured. The suits were brought by the widow and children of Lewis, by the widow and children of Gretsinger, by Willis for property damage to his truck, and by Gillikin for personal injuries. The question before us is whether the Gas Company is required to answer the allegations of the identical third party complaints filed against it in each of these cases.

The answer to that question depends upon whether any actionable negligence is charged against the Gas Company. Negligence “Necessarily involves the breach of some duty owed by the defendant to the plaintiff * * Holler v. Lowery, 175 Md. 149 , at page 158, 200 A. 353 , at page 357. The question before us, therefore, resolves itself into a consideration whether, under the facts and circumstances alleged in the third party complaints, the Gas Company owed any duty to the traveling public such as the original plaintiffs in these cases and the appellant, or others in like situation, and if it did, whether the allegations support a claim that it failed in the performance of that duty, and that such failure was the proximate cause of the accident involved in this case. As was said by this Court, speaking through Chief Judge McSherry, in the case of West Virginia Central & P. R. Co. v. Fuller, 96 Md. 652 , at page 666, 54 A. 669 , at page 671, 61 L.R.A. 574 , “Of course there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.

It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a ³⁹⁰ duty to the individual complaining, the observance of which duty would have averted or avoided the injury. This has been so often stated that it is not deemed necessary to elaborate it.” See also Birckhead v. Baltimore, 174 Md. 32 , 197 A. 615 . The third party complaints describe the accident as follows: “Shortly before the actual impact of the vehicles, the left front wheel of Schoblocher’s tractor hit the elevated curbing of a grass plot about six feet wide, more or less, located in the middle of Wilkens Avenue, the physical layout of the grass plot being hereinafter more fully described, and Schoblocher’s tractor thereupon turned to its left and a part of his tractor-trailer struck a metal lamp post in the middle of and near the west end of the grass plot and proceeded diagonally to its left in and upon and then partially over and to the left of the grass plot, and into and upon the westbound lane of Wilkens Avenue, and there collided with the oncoming tractor and trailer operated in a westerly direction by Lewis.” It is urged by the appellee that this allegation not only does not show that the presence of the lamp post was the proximate cause of the accident, but on the contrary, indicates that the striking of the elevated curbing was such cause, because this is what deflected the Schoblocher tractor and caused it to turn to its left.

A number of cases are cited for this conclusion, including County Commissioners v. Collison, 122 Md. 91 , 89 A. 325 ; Birckhead v. Baltimore, supra; Hagerstown v. Foltz, 133 Md. 52 , 104 A. 267 , and Parsons v. C. & P. Tel. Co., 181 Md. 502 , 30 A. 2d 788 . In the last case an operator of an automobile collided with a telephone pole along the State highway. The Telephone Company was sued, its demurrer to the declaration was sustained, and this action was affirmed by this Court.

In the declaration in that case it was stated that the Telephone Company maintained its pole on the side of the road within a few feet of the traveled portion and in a ditch, and that the plaintiff’s automobile went off the traveled road and down the abrupt side of the ditch, which guided the automobile into the pole. ³⁹¹ This Court said that it was apparent that this condition of the highway was an independent factor which intervened as a superceding cause of the injuries complained of. We found that the direct and proximate cause of the injuries sustained was not the position of the pole, but was the condition of the ditch and roadside. That case is very closely analogous to the one before us. In this oral argument counsel for appellant said that it was intended to allege (and he thought it was sufficiently alleged) that striking the pole further deflected the tractor-trailer to the left and caused the operator to lose control of it.

And that this was the proximate cause of the accident. He asked, if the allegations were held insufficient to show that the pole was the proximate cause of the accident, that the Court would give appellant the opportunity to further amend its complaint to correct this defect if it existed. But we pass this request for the moment to consider the basis of the duty claimed to be owed by the appellee. The complaint, after reciting that the City maintained a series of electric light poles about 15 feet high and about 130 feet apart in the center grass plot, one of them being about three feet from the west end thereof, and making the allegation that the City negligently failed to mark the beginning of the west end of the grass plot and the lamp post with warning signs, shields, lights, barriers and other devices or safeguards to warn eastbound traffic, and after reciting the inadequacy of the lights at the top of the poles to illuminate the hazards there existing and to give proper and sufficient notice, and after further alleging that at the time of the accident and for a number of hours prior thereto the City failed to maintain the electric lights and suffered them to remain out, stated the case against the Gas Company in the following words: “The Gas and Electric Company, by contract with the City, had undertaken for years before the time of the accident complained of to furnish electric current for said lights and to furnish inspectors to inspect the lights and to maintain the said ³⁹² electric lights and their appurtenances and to make necessary repairs and replacements from time to time, and to replace lamp posts knocked down and broken, and to keep the lights burning at night, for the safety of those lawfully using the highway, but the Gas and Electric Company, after due and timely notice during the night of the accident, that the aforesaid lights were out, undertook to make the necessary repairs and replacements in a negligent and careless manner, in that it assigned an insufficient repair force to make repairs and replacements to said lights, thus resulting in unreasonable delay in completing the said repairs and replacements.

The Gas and Electric Company for years prior to the accident had knowledge of the dangers incident to the maintenance of a pole at the west end of the grass plot, even with a light burning at the top thereof, without appropriate warning devices at or near the base “thereof to warn eastbound traffic of the presence of said pole and of the dangerous and hazardous obstructions in the form of the grass plot and its elevated curbing and the metal pole there located. The Gas and Electric Company had repeatedly on numerous occasions prior to the accident replaced said pole with new poles at the same location as and when the pole was frequently hit and knocked down by the motoring public, said pole having been frequently struck and knocked down even when the lights were burning and when conditions of visibility were much more favorable to the motoring public than on the dark and rainy night when the accident complained of occurred. The Gas and Electric Company had warned the City of the dangers incident to the maintenance of a metal pole at the west end of the grass plot without proper and adequate warning devices. The Gas and Electric Company continuously for a long time prior to the accident negligently participated with the City in maintaining, reconstructing and continuing the presence of said dangerous obstruction and public hazard and nuisance, and repeatedly, for profit, replaced the pole at the same location from time to ³⁹³ time, well knowing the dangers incident thereto, but, nevertheless, continued in its positive and affirmative acts of misfeasance and negligence in perpetuating the dangerous condition, with full knowledge of the negligent failure on the part of the City to heed repeated warnings to establish effective, safe and adequate warning devices at or near or upon said pole and grass plot to warn eastbound traffic.

The Gas and Electric Company owed a duty to the public to desist from the continued erection and maintenance of said metal pole creating in the manner as aforementioned a dangerous obstruction and public hazard and nuisance; but the Gas and Electric Company violated its said duty by continuing the maintenance of said dangerous obstruction and public hazard and nuisance.” These allegations embody two charges of failure of duty. The first is the delay in making the necessary repairs and replacement so that the light on the pole wdiich was struck would be burning. The second is the participation of the Gas Company with the City in keeping a pole at the location three feet from the west end of the grass plot and replacing it there from time to time without any effective and safe warning devices. This last charge is the main basis of the appellant’s claim.

It contends that the pole was an obstruction of the highway, that it was a public nuisance, and that, as the Gas Company put up the pole (although it belonged to the City and its location was determined by the City) and as the Gas Company knew that as erected and maintained it was dangerous, the Gas Company owed a duty to the public, either to refuse to erect the pole, or to provide -warning devices to notify travellers. The appellant says that if the Gas Company is an independent contractor ’ nevertheless it is liable, even after the completion of the work, if the finished job creates a nuisance, and cites as authorities for this position, among others, Wilson v. Peto, 6 Moore 49, 14, E.C.L. 107, Sec. 42; Jf. Dillon on Municipal Corporations, (5th Ed.), Secs. 1723 and 1724; Thompson v. Gibson, 7 M. & W. 456 (1841) ; ³⁹⁴ Maenner v. Carroll, 46 Md. 193 , at page 215; Robbins v. Chicago City, 4 Wall. 657 , 18 L. Ed. 427 ; Bass Canning Co. v. MacDougald Construction Co., 174 Ga. 222 , 162 S. E. 687 ; Dunlap v. Raleigh, etc., Co., 167 N. C. 669 , 83 S. E. 703 ; Ryan v. Feeney, etc., Co., 239 N. Y. 43 , 145 N. E. 321 , 41 A.L.R. 1 ; Murray v. Arthur, 98 Ill. App. 331 ; Blendinger v. Souders, 2 Monag., Pa. 48; Cochran v. Sess, 168 N. Y. 372 , 61 N. E. 639 ; Silvers v. Nerdlinger, 30 Ind. 53 ; Carson v. Blodgett Const.

Co., 189 Mo. App. 120 , 174 S. W. 447 ; Pennsylvania Steel Co. v. Elmore, etc., Co., C. C., 175 F. 176 ; Schumacher v. Carl G. Neumann, etc., Co., 206 Wis. 220 , 239 N. W. 459 ; Cordish v. Bloom, 138 Md. 81 , 113 A. 578 ; Baltimore v. Thompson, 171 Md. 460 , 189 A. 822 ; Cumberland v. Turney, 177 Md. 297 , 9 A. 2d 561 . Without discussing all these cases in detail (and they are not all in point), they seem to substantiate the general statement made by Judge Alvey in Maenner v. Carroll, 46 Md. 193 . The facts of that case are not pertinent to the issue here, but the statement is as follows: “Now, it is certainly true, that every person who does or directs the doing of an act that will of necessity constitute or create a nuisance, is personally responsible for all the consequences resulting therefrom, whether such person be employer or contractor.

Wilson v. Peto, 6 Moore 49.” In the case of Robbins v. Chicago, 4 Wall. 657 , 18 L. Ed. 427 , the suit was by the City which had paid damages to an injured pedestrian for re-imbursement by the owner of a building lot who had excavated an area in a sidewalk. The contractor who was still doing the work was not a party to the case. The Court held the owner liable because the excavation necessarily constituted an obstruction or defect in the street which rendered it dangerous as a way of travel unless properly guarded. The case of Bass Canning Co. v. MacDougald Construction Co. et al., 1932, 174 Ga. 222 , 162 S. E. 687 , was a suit against a construction company and the City for damage to property of the plaintiff in its warehouse ³⁹⁵ resulting from the inundation of the ground floor of the building by surface water from the streets.

It appeared that the construction company was employed by the City to pave the street and construct a storm sewer and did so according to the plans adopted by the City, thereby raising the mouth of the sewer about four feet and causing the surface water to accumulate on the street. The Court held the City liable because its negligence or error of judgment resulted in the creation of a nuisance and said that the construction company was also necessarily liable as joint tortfeasor because it was not the adoption of the faulty plan, but the carrying it into execution that caused the damage. The fact that the construction company was an independent contractor afforded no reason why it should not be held responsible. The case of Dunlap v. Raleigh, etc., Railroad Co., 167 N. C. 669 , 83 S. E. 703, 704 , was an action by the plaintiff who fell into a railroad cut, 30 feet deep.

The cut was on the right-of-way of the railroad company and the other defendant in the case did the excavation for bridge work under contract. The jury found for the plaintiff against both defendants and this was affirmed. The Court said “The defense of an independent contractor is not available, where the thing contracted to be done is ‘necessarily attended with danger or will probably become a nuisance’.” The work was not completed when the accident happened. In the case of Cochran v. Sess, 168 N. Y. 372 , 61 N. E. 639, 640 , plaintiff’s son was killed while building a brick wall on a building.

The owner and the contractors who had built and completed the stone foundation upon which the brick wall was to be built were made defendants. The defendant contractors built the stone foundation wall according to the plans and specifications of the architect. The Court said they could only be held upon the theory that “Anyone who participates in the construction of any structure which is obviously dangerous to human life is a party to the creation of a nuisance, and engaged in an active wrong, for the consequences of ³⁹⁶ which he may be subjected to pecuniary responsibility.” The judgment was reversed because of the failure of the Court to give an instruction asked for by the defendants to the effect that they did not do the concrete foundation which the Court said from the record was one of the two causes of the accident, the other being some defect in the brick wall with which the defendant also had nothing to do. In the case of Carson v. Blodgett Construction Co., 189 Mo.

App. 120 , 174 S. W. 447 , the defendant was making an excavation for the basement of a building in Springfield, Missouri, under contract with the owner. The blasting was done by a sub-contractor. The plaintiff was injured driving along the public street. The contractors in that case were said to be in the same status as owners, as far as the sub-contractors were concerned, and it was held they are liable because the work was inherently dangerous.

In the case of Pennsylvania Steel Co. v. Elmore, etc., Co., C. C., N. D. N. Y., 175 F. 176, 183 , involving a construction of a bridge over the Potomac River at Williamsport, Maryland, the Elmore Co. agreed to construct piers for the bridge as sub-contractors for the general contractor. One of the piers was alleged to have been faultily constructed by the fraudulent mixing of improper concrete. The piers as thus constructed were turned over with latent defects in them. The plaintiff then placed a superstructure, tools and machinery upon the pier and the latter collapsed, whereupon the plaintiff sued the sub-contractor.

The .Court held the defendant liable, saying “The complaint states a good cause of action in either aspect; that is, as one tp recover damages for a willful tort or wrong, or as an action to recover damages for negligence.” In the case of Schumacher v. Carl G. Neumann Dredging etc. Co., 206 Wis. 220 , 239 N. W. 459 , plaintiff’s wife was drowned when in bathing in front- of plaintiff’s premises because of stepping into a 10-foot hole which was dredged by defendant and negligently left unguarded. ³⁹⁷ The hole was in shallow water on sandy beach in front of numerous summer cottages much used for bathing by occupants. The Court cited the general rule that an independent contractor is relieved from responsibility to persons for injuries suffered by them after he has completed his work and it has been accepted by his principal, and also noted the exception where the work constitutes a nuisance. In the case of Cordish v. Bloom, 138 Md. 81 , 113 A. 578 , a pedestrian caught his foot between the frame and the cellar door in the sidewalk, fell, and broke his leg. He sued the owner of the premises and the City.

The Court held that there was enough evidence against both Cordish and the City to permit the case to go to the jury. In the case of Ryan v. Feeney etc. Building Co., 239 N. Y. 43 , 145 N. E. 321, 322 , 41 A.L.R. 1 , the defendant building company constructed a building and a canopy according to