Kurrle v. Mayor of Baltimore

Boyd, C. J., delivei'ed the opinion of the Court. The appellant sued the appellee to x’ecover damages for injuries alleged to have been caused to his propex*ty for which ⁶⁶ he claims it is responsible. The first count of the declaration alleges that the plaintiff was the owner and in possession of a certain business carried on in property in Baltimore City, which fronted on Jenkins lane, and ran back to a stream of water known as Jenkins run; that sometime before the happening of the injuries complained of the defendant constructed a sewer to carry off water which theretofore ran in Jenkins run, as well as that which might fall and run therein, which was so constructed as to connect with an existing sewer of the defendant; and that from the carelessness and want of ordinary care of the defendant it did not provide the Jenkins run sewer, and the one with which it connected, with sufficient size and capacity to carry off the . waters of Jenkins ran as well as the rain water which might be expected to flow therein and the waters which flow in the connecting sewer; that by the exercise of ordinary care and diligence the defendant had notice, or might have had notice, of the injuries which would necessarily be inflicted upon the plaintiff by reason of the insufficient capacity and size of the said sewer with which Jenkins run sewer connects; that by reason of the insufficient size of the sewer with which Jenkins run sewer connects, it fails to carry off the water which drains therein when it is burdened by rain water which flows therein in addition to the ordinary flow of water in it, and by reason of the insufficient capacity of said sewer it has frequently overflowed and the water backed up in the premises of the plaintiff, causing him serious loss and damage, etc. The second count alleges that Jenkins lane, also called Taylor street, is a public highway owned by the defendant, and by reason of the failure of the defendant to use proper care and diligence in caring for said street, it has failed to grade and pave the same and to place gutters in it to carry off the waters which flow therein from rain and other sources, the defendant well knowing that and well knowing that recently other streets had been opened up connecting with Jenkins lane in such manner that large quantities of water flow from other streets in and over Jenkins lane, and it not ⁶⁷ being provided with gutters and other means for taking off said water, large quantities flow from other streets and from Jenkins lane over and across the premises of the plaintiff, so that his dwellings, buildings, machinery, etc., have been seriously damaged. The general issue plea was filed and the trial resulted in a verdict for the defendant.

Erom the judgment entered thereon this appeal was taken. There are three exceptions to rulings on the evidence which we will consider before passing on the prayers. The first is presented in this way: the City Engineer was on the stand when he was asked to look at a book handed him and to say whether it was one of the reports of the Sewerage Commission. The defendant objected, and the counsel for the plaintiff said it was only offered for the purpose of showing notice, and that he had no desire to offer it as a report in evidence.

The Court took the pamphlet and after some further remarks what took place is thus described in the record: “Court: As far as that is concerned, that it brought attention to the fact would bring it in evidence, but not as to what in their estimation caused it. Mr. Tippett: Of course, I understand that. Court: And so the fact may be that a report was made upon the Jenkins run sewer, or Harford run sewer, or any of the others, and that fact be proved, but not what that report was. To which ruling of the Court the plaintiff excepted,” etc. It will be observed that there was no distinct ruling on the subject, but if it be treated as ruling the report out, it would not be reversible error.

In the first place, Mr. Tippett said: “I have no desire to offer the report as a report in evidence. It is solely on the question of notice.” What it said we have no means of knowing. If there was anything in it which was admissible, it should have been offered, and set out in the record, so we could determine its admissibility. This is not like the case of County Commissioners v. Gantt, 78 Md. 286 , which overruled some previous cases, for there it could not be told what the witness would say, as the question was not ⁶⁸ allowed to be answered, bnt there conld be no possible reason why we could not be informed as to precisely what was offered and what the book contained.

The book was in Court; counsel said he only wanted to call attention to certain references in it, and he could have offered whatever parts he desired a ruling on, and if excluded and he wanted us to review the ruling, he should have had it in the record. Moreover, the City Engineer made all the admissions which were necessary to show that he had notice of complaints about this sewer. So it is useless to discuss the subject further. ISTor was there error in the ruling presented by the second exception.

The witness had already said he had never read the report of the Sewerage Commission for 1906, although he admitted it was on file. The question was then asked: “It refers specifically to the work of your department? A. TSTo; I would not say that. Q. I mean the work of your department as conducted by you prior to the Sewerage Commission having general charge of the sewers in Baltimore City ?” The latter question was objected to and ruled out.

We cannot see its relevancy, but, regardless of that, what we have said above is applicable to this exception. The page of the report referred to in the question upon which the subsequent ones were- dependent, is not in the record, and we have no information by which we could determine its application, if any, to this case. In the third exception there was an offer to prove from a bound volume of the City Commissioner’s Reports of Baltimore City for the year 1895, that Janon Fisher, who was the City Commissioner, recommended “that a sewer should be built by the City to drain the watershed now drained by Jenkins ron sewer, from the end of the City sewer at the intersection of Federal street and Carter alley east through the hed of Federal street to Greemnount avenue; thence north in the bed of Greemnount avenue to a junction with Jenkins run sewer.” That was clearly inadmissible. If the City is to be held liable for recommendations of improvements by ⁶⁹ its different officers, it would be best not to have any recommendations on record.

Mr. Eisher doubtless gave what he believed to be good reasons for making such recommendation, but it certainly cannot follow that the City is liable because he is in his report so recommended. Engineers differ, and differ widely, as to the necessity or desirability of improvements, and as to the method to be adopted, if made, as is illustrated by this record. The fourth bill of exceptions contains the rulings on the prayers, those excepted to being the defendant’s second, sixth, seventh, eighth, ninth and tenth. The second and sixth may be considered together, the second instructing the jury that there was no legally sufficient evidence under the pleadings to show that the sewer mentioned in the evidence is of insufficient capacity to carry off the water which it was designed to drain, in times of ordinary rainfalls, and under the pleadings their verdict must be for the defendant, as far as the first count is concerned.

The sixth instructed the jury that there was no such evidence to show that the sewer was unskillfully constructed or that it has not been maintained so as to provide for all the water which might be reasonably expected to flow towards and into it. That also refers to the first count. It must be admitted that this sewer, as a whole, from where it begins to Jones’ Ealls, where it empties, is peculiarly constructed. Mr. Eendall, the City Engineer, who was called as a witness for -the plaintiff, said it has too manv curves, was longer than necessary, that there are eight or ten sections to it, some of which are semi-circular arches of varying heights of walls; some are segmental arches with low walls, one is a segment without any wall, and other sections are complete circles.

That part he built is a circle of nine feet and six inches diameter, and was joined to a circle of ten feet six inches diameter. But the most serious defect, if it be so regarded, is the fact that the capacity of the part of it on Carter alley is considerably smaller than the sections on either side of it. All of the water that enters the sewer near ⁷⁰ the plaintiff’s property has to pass the Carter alley section, and hence the important question, under the first count in the declaration, was whether that is sufficient. A sewer may be of sufficient capacity at its beginning, but if it is too small at some point along the line to let the water which enters there run through, there is likely to be trouble—indeed, it is certain there will he if the flow into the head continues long enough to fill up the sewer.

The part of the sewer which is smaller than the rest is from Girard avenue to the west side of Greenmount avenue, about eleven hundred feet. The area of that cross section is 49-1/100 square feet, while the area under Greenmount avenue is 175 square feet and the area for six hundred and eighty feet north of Greenmount avenue is 86-36/100 square feet. As constructed when the injuries complained of occurred, the City Engineer testified that “all the water that gets into this sewer under Greenmount avenue has to go through this small one, the Carter alley sewer, and then goes off into the larger sewer between Girard avenue and Jones’ Ealls.” It is proper to say that Mr. Eendall testified that there were plans in his office showing a proposed extension down Girard avenue to Greenmount avenue, then up the latter to the structure under Greenmount avenue, above referred to, and if that had been built it would have relieved Carter alley sewer to the extent this proposed sewer would háve taken the water off. In other words, there woidd be two lines of sewers between Greenmount avenue and the point at Girard avenue where the sewer is larger than it is under Carter alley, and doubtless some such proposed extension was the reason why there was such a large area under Greenmount avenue.

There is some evidence tending to show that the Carter alley sewer had been a source of trouble and anxiety on the part of the City officials for some years. We do not refer to it being out of repairs at times, as there is nothing to show that it was at the dates complained of in this case, but complaints had frequently been made to the authorities, and ⁷¹ plans were being considered to relieve it of some of the water it had to carry. It cannot be presumed that the City authorities would have made the sections above the Carter alley sewer so much larger than it was, if that size was deemed sufficient. If there was reason to make the sewer larger higher up, there was certainly more reason to have the lower part on Carter alley larger, for the evidence shows, and it might be assumed, that there were inlets into this sewer along its line, and that the part of the sewer towards the end where it empties will generally be required to carry more water than towards the beginning.

Of course we understand that the City authorities might make the upper sections of a sewer larger than a lower