Hanrahan v. Mayor of Baltimore City

Pearce, J., delivered the opinion of the Court. This action was broug’ht by the appellant, Catherine Hanrahan, as owner of the house and lot ETo. 116 'W. Lafayette avenue, Baltimore, to recover for damages to said house caused by the construction of a sewer by the appellee, the Mayor and City Council of Baltimore, acting in conjunction with the appellees, M. A.-Talbott and Company, general contractors for said work under a written contract between them and the Mayor and City Council. The declaration contains five counts. The first count merely alleges that the defendants so located, dug and constructed a sewer in Rutler alley adjoining the plaintiff’s property, that the earth supporting the walls of said house, and the foundation on which they were built set- ⁵²¹ tied and sank and said house was thereby injured without any negligence on her part directly contributing thereto.

Both defendants demurred to this count, and the demurrer was sustained with leave to amend, but the plaintiff failed to amend. There was no averment in this count of any negligent act on the part of either defendant, nor of any actual physical invasion of the plaintiff’s property, and in such ease it is well settled in Maryland there can be no recovery under such a count. The Mayor and City Council is a municipal corporation authorized by the Act of 1904, Ch. 349, to build the sewer in question, either through its own servants or agents or through the agency of an independent contractor. In Offutt v. Montgomery County, 94 Md. 115 , the second count of the narr. alleged that the County Commissioners in changing the grade of a highway along the front of the plaintiff’s property dug down seven feet beneath the level of said property, “whereby the lot is now rendered subject to inevitable caving and falling away.” There was a demurrer to this count, and in sustaining the same the Court said: “It is not charged that the work was improperly or carelessly done, and inasmuch as the appellees had power to authorize the railway company to construct its tracks upon the bed of the street and to change the grade, and that the land of the appellant was not actually invaded, it follows that under the allegations of this count of the narr., the appellant is not entitled to compensation for the injuries al- ' leged to have resulted from the change of grade.” And in De Lauder v. Balto.

County, 94 Md. 7 , where under the peculiar facts of that case there was held to be an actual taking of the plaintiff’s property, the Court said: “It is well settled in this State that as against a municipal corporation in the careful exercise of its right and power to grade or improve public streets or roads, and where there is no taking or actual physical invasion of propeidy, there can ⁵²² be no cause of action for an unavoidable injury done.” Upon all the numerous cases which might be cited there can be no serious question that the demurrer to this count was properly sustained as to the city. The contractors in this case were performing this work under the supervision of the Mayor and Oity Council, and cannot be held under the allegations of this count to any other standard of liability._ If authority were needed for this proposition, it may be found in Balto. and Pot. R. R. v. Reany, 42 Md. 130 , in which Judge Alvey, said: “As against the municipal government, in the careful exercise of its right, and power to grade, change and improve the street, there could be no cause of action for any unavoidable injury done; but as against the appellants, a private corporation in no wise connected with the municipal government obtaining authority to use the streets in an extraordinary manner for its own private purposes and profit, the case is quite different.” This language is so plain as to require no interpretation, and puts the contractors in this case in the precise position of the Mayor and 'City Council as respects liability to the plaintiff. The fifth count charges that the.Mayor and City Council in contracting with Talbott & Co. for the performance of this work assumed the duty to repair any damage or injury that might be done by the location or construction of said sewer and to protect from injury the plaintiff’s property in the vicinity thereof by caving or otherwise, and that the contractors became jointly bound and liable to the same extent; but so located and dug said sewer that plaintiff’s property was damaged by the settling of the walls of said house, and that defendants failed to protect the plaintiff’s property as they were bound to do, and failed to restore said house to its condition before said injuries were received, or to pay the cost of such restoration, though requested so to do.

Both defendants demurred to this count, which seems to have been drawn with reference to certain provisions of the contract ⁵²³ between the Mayor and City Council, but the demurrer was overruled, and the general issue was pleaded to this count by both defendants. jSTo notice was taken in argument, of this demurrer, and we shall therefore not advert to it further. The second, third and fourth counts all allege negligence on the part of the defendants. The second charges negligence in the location and digging of the sewer trench. The third and fourth charge the same negligence and also charge that defendants negligently failed to use proper shoring or lagging in the construction of said trench, and negligently allowed the same to remain open an unreasonable time during heavy rains and thereby to accumulate water in said trench, undermining the walls of plaintiff’s house; and the fourth, in addition to what is recited above, also charged that defendants negligently permitted and caused a water pipe of the Mayor and City Council which was exposed in digging said trench, to hurst and flood said trench, and from thence to flow upon and against the plaintiff’s wall, causing the same to settle and sink.

Twenty-seven exceptions were taken to rulings on evidence, and the twenty-eighth to the gnanting of the defendant’s prayers offered at the close of the plaintiff’s case. These prayers were as follows: “Eirst.—The City prays the Court to instruct the jury that there is no evidence in this cause legally sufficient to entitle the plaintiff to recover under the pleadings against the City, and the verdict of the jury must therefore he for the City.” “Second.—The City prays the Court to instruct the jury that there is no evidence in this case legally sufficient to show any negligence on the part of the City, or for which the City is responsible, and therefore the plaintiff is not entitled to recover under the pleadings against the City, and the verdict of the jury must he for the City.” ⁵²⁴ “First Prayer of the Contractors.—The defendant, M. A. Talbott Co., prays the Court to instruct the jury that under the pleadings of this case there is no evidence legally sufficient to entitle the plaintiff to recover, and the verdict of the jury must therefore be for the defendants, M. A. Talbott & Co.” In order that we may deal intelligently with the numerous exceptions relating to the exclusion of evidence we will briefly summarize the testimony which was admitted. The undisputed evidence is that the plaintiff’s house was built in the year 1900 by an experienced builder, for himself, out of the best material and with proper care and skill, and that until the construction of this sewer the walls and every part of the house were sound and in perfect condition. The plaintiff, who was then living in the house, testified that the trench for the sewer was open, altogether according to her recollection about six weeks; that there were many rainstorms during the time it was open, and water collected therein, which was not pumped, but was allowed to stand until it soaked in the ground; that after the trench was filled she heard the sound of water running, but could not tell where it was, and she called one of the men at work on the job, who discovered a broken water pipe of the city in the trench, which had been running for more than a day; that cracks in the walls apd ceilings began to appear and have grown larger and more numerous, and the doors could not be locked or closed and she has been put to expense in endeavoring to close the cracks and repair the damage to the doors and to the house generally.

Upon her cross-examination and from the testimony of other witnesses, it may be doubtful whether the trench was open so long as six weeks, but none of the testimony makes the time shorter than three weeks. Mr. Knight testified that he could not tell just how long a section he allowed to be open at one time, but could not recall that it was over 75 or 80 feet. ⁵²⁵ Frank G. Walsh, a builder of twenty-one years’ experience, corroborated tbe plaintiff as to the condition of the house in 1910, and said the wall at the rear comer was three and one-half inches out of plumb, and that the foundations of the house were three and one-half feet below the curb in the alley. He testified that he had dug many similar trenches alongside of buildings, and knew the custom of builders in digging such trenches. John McKnight, a builder for thirty-five years in Baltimore City, who knew the house ever since it was built, saw the trench open in April, 1907, the pipes lying by it, and said this was the situation for several weeks; that about the fifth week, according to his recollection, the pipes were in the trench, and the dirt was thrown loosely in; that the trench was about eight feet deep, and the soil in the alley was good hard gravel and sand.

He testified that he had built many sewers, both large and small, in Baltimore City. Frank Ward, who was foreman of the Water Department in 1907, and also at the time of the trial, testified that on May 22nd, 1907, he repaired a broken inch and a half city supply pipe in this trench adjoining the plaintiff’s house; that the sewer had been filled in fifty feet north from the broken pipe—up the alley; that water was running from this pipe in and outside of the trench; that the pipe broke in half from the weight of the dirt in the sewer trench; it was in good condition, not bent, but broken in half; he dug out the dirt three feet down, but could not tell how the pipe was kept in place; he said such accidents happened occasionally in sewer work, but could not say how often. The pipe was solid cast iron and crossed the trench at right angles three feet below the surface; it was old construction pipe, but the break would have occurred just the same if the construction had been new- Herbert M. Knight, division engineer of the Sewerage Commission, testified that the sewer trench- was on the west ⁵²⁶ side of the alley, two feet and eight and one-half inches from the west curb of the alley, and on plaintiff’s side of the alley. That the pavement was not quite four feet wide, and the trench was eight feet ten and one-half inches deep.

The contractors were under the supervision of the Oity, and he was in control of the work under the contract, but he did not know of his own knowledge what was under the bed of the alley on the side opposite the plaintiff’s house; he knew from the records made and delivered to him as the work progressed by Inspector Braydon and Engineer Skriver that skeleton sheet piling or lagging was used in this trench, and it was left in the trench when it was filled; he was absent from the city from Maj 1st to May 21st, but was in Rutler alley May 22nd, when only the paving remained to be done, but saw no one working there. John Oarey, a builder, testified that he examined the plaintiff’s house in 1907, and estimated what the necessary repairs would cost, and saw.a man bailing water with a bucket out of this trench, which was filled with water. John Trainor, who had an experience of thirty-odd years as a builder of sewers in Baltimore, and had made all sorts of excavations, said he had built sewers of various sizes from three or four feet in depth to twenty feet; that in this work he was accustomed to use lagging, and that he has seen rainstorms which flooded the trench and loosened the eai’th behind the lagging and the section would cave in, and that if water is allowed to get in a trench it will cut away the earth entirely. Lie testified that he examined the alley that morning; that the tops of the lagging ran along the curb, and in some places came up fair with the top of the pavement and a little higher; that the failure to cut off this lagging below the surface endangered the house; that he ran his whipstock down four and one-half feet below the curb next to the lagging, showing that the water strikes this lagging, runs down behind it and makes a cavity behind the lagging. . ⁵²⁷ He also said he. had large experience with bursted water pipes in sewer trenches and that they should always be supported when the trench is filled in.

He said the trench ought not to hare been opened its full length, nor to remain open exposed to the weather, and that it should have been put on the other side of the alley. Patríele Plannagan, a sewer builder for twenty-five years, testified that he examined this alley just before the trial; that some of the lagging was still visible above the surface, and there was a recess behind the lagging into which he poured several buckets of water, which disappeared as fast as it was poured in. He said the custom was to cut off the lagging below the surface. The above is a substantial statement of all the testimony adduced in the case.

Due care is a question for the jury to be determined upon the facts in evidence, and experts cannot be allowed to usurp the province of the Court and jury by drawing those conclusions of law or fact upon which the decision of the case depends. Stumore v. Shaw, 68 Md. 19 . In the 1st, 4th, 5th, 6th, 13th, 15th, 16th and 25th exceptions, the witnesses Walsh, McKnight, Knight, Trainor and Flanagan were each asked whether, under the circumstances stated in the respective questions, due care was exercised by the defendants, and there was consequently no error in refusing to allow these questions to be answered. In the second exception the witness Walsh was asked if the repairs which he had stated were necessary would have restored the house to as good condition as before the building of the sewer.

We can see no objection to the question as bearing upon the amount of damage sustained, but as this witness had already said these repairs would put the house “in as good condition as possible under the circumstances,” there was' no injury resulting from the refusal to allow it to be answered. ⁵²⁸ In the third exception this witness was asked what effect on the value of a house there would be from putting in iron anchors or -braces which he had mentioned in the necessary-repairs. There is no apparent objection to this question, and we think it should have been allowed. The seventh and eighth exceptions were taken to the refusal to allow the plaintiff’s counsel to read to the jury paragraphs a, b, c, d, e, and / of the contract between the Mayor and City Council and the contractors. The whole contract had been previously offered generally and admitted in evidence without restriction