Lynch v. Mayor of Baltimore

Johnson, J., delivered the opinion of the Court. On December 13th, 1934, John S. Lynch brought suit in the Baltimore City Court against the Mayor and City Council of Baltimore and Lucius S. Storrs and William H. Meese, receivers of the United Railways & Electric Company of Baltimore, to recover damages for personal injuries sustained by him on August 3rd, 1934, because of an alleged failure of the defendants to keep in proper repair a certain portion of the bed of Greenmount Avenue, a public street of the City of Baltimore, while crossing which he, because of its defective condition, tripped and fell, thereby sustaining serious and permanent injuries. General issue pleas were filed by the defendants, upon which issue was joined, and the cause was tried May 29th, 1935, before a jury, whose verdict was in favor of both defendants. Subsequently plaintiff made a motion for a new trial, and, this being overruled, judgment absolute was entered upon the verdict in favor of defendants.

It is from this judgment that the present appeal is taken. The record contains seven exceptions, the first five of which are to rulings on evidence, the sixth to rulings on the prayers of both defendants, while the seventh relates to the action of the trial court in overruling plaintiff’s motion for a new trial. About 10 o’clock p. m. on August 2nd, 1934, the plaintiff met his friend, Edward Drury, on Greenmount Avenue near Twenty-Eighth Street, and they went to a place known as “Uncle Walt’s Tavern,” a saloon in the twenty-six hundred block of Greenmount Avenue and on the east side thereof. They remained there until shortly after midnight, consuming several glasses of beer.

Upon ⁶²⁶ leaving, they crossed over to the west side of the street and went north to a produce store in search of a watermelon, but left without making a purchase. It was then cloudy and drizzling rain. According to the plaintiff, the injuries for which he sued were sustained by him while attempting to return to the east side of Green-mount Avenue at Twenty—Eighth Street, when his foot was caught in a hole along the side of one of the tracks of the railway company, causing him to fall upon his shoulder, while the defendants contended that plaintiff’s injuries were sustained because of an intoxicated condition which caused him to fall from the curb on the west side of Greenmount Avenue into the street. We will first consider the exceptions taken to rulings on evidence.

The plaintiff’s friend, Drury, who was with him at the time he was injured, had stated on direct examination that certain paving blocks had previously been laid in the bed of Greenmount Avenue along both sides of the railway track, and the block nearest the track was missing, forming a pocket and making an incline into which the plaintiff’s foot was caught while crossing the street; that on the afternoon of the following day the witness and his wife went to the scene of the accident with plaintiff and his wife to show them the pocket which caused plaintiff’s injuries, and, after answering that it was in the same condition on Saturday as it was on the previous day, he was asked if the hole had been fixed and when it was fixed. The court sustained an objection to this question, and from this action the first exception was noted. The second exception was taken to the proffer of plaintiff to testify that in September following, after leaving the hospital, he observed the hole into which his foot was caught, and that the hole continued there until October, when the officers sent a report regarding its condition; while the third exception arose because of the court’s refusal to permit the plaintiff to testify as to when the condition causing the hole was finally repaired. Officer Frank L. Duffy, called by the defendants as a witness, while testifying on cross-examination, was asked. ⁶²⁷ this question: “Q.

(Mr. Ashman). Well, now, Officer, did you make a report to the Captain that there were holes there on Greenmount Avenue, between Whitridge Avenue and 28th Street, and since had' been repaired properly? The Court: Don’t answer that question; I will sustain an objection.” The fifth exception was taken under these circumstances: The same officer further testifying on cross-examination was shown a report made by him on October 20th, 1934, concerning certain holes in the bed of Greenmount Avenue by natural wear and tear of traffic. After identifying the report, he was asked to give its date, and the court stated: “I will not permit that; the report should show that.” An exception was taken to this ruling.

Since these five exceptions were taken to the refusal of the trial court to permit the plaintiff to prove the condition of the street at the alleged scene of the accident, not at the time the accident took place, but subsequent thereto, or to allow him to prove subsequent repairs to that part of the street, they will be considered together. It should be observed there was no proof by the plaintiff that upon such subsequent dates, when the conditions were observed or when the repairs were made (more than three months later), the condition of that part of the street had not changed since the date plaintiff was injured. This, too, is quite understandable, when we consider the constant changes which might be expected to occur to the bed of a street, subjected to such use of street cars and other traffic as the record before us indicates existed on Greenmount Avenue. There was therefore no error in the ruling from which the second exception was taken, since the proffer of the plaintiff failed to include any element to the effect that the condition of the street was the same in September as when plaintiff was injured.

Maryland, D. & V. Railroad Co. v. Brown, 109 Md. 304, 319 , 71 A. 1005 ; Annapolis Gas Co. v. Fredericks, 112 Md. 449, 455 , 77 A. 53 and cases there cited; Wigmore on Evidence, vol. 1, sec. 437; 10 R.C.L., p. 943. ⁶²⁸ This likewise applies to the rulings in the first, third, fourth and fifth exceptions, as a result of which plaintiff was not permitted to prove that defendants had made repairs to Greenmount Avenue after he was injured. As a general rule, evidence of repairs is inadmissible as a basis for establishing negligence in maintaining a street in a dangerous condition at some previous time. In support of this view we quote from Wigmore on Evidence, vol. 1, sec. 283, as follows: “If machines, bridges, sidewalks, and other objects, never caused corporal injury except through the negligence of their owner, then his act of improving their condition, after the happening of an injury thereat, would indicate a belief on his part that the injury was caused by his negligence. But the assumption is plainly false; injuries may be and are constantly caused by reason of inevitable accident, and also by reason of contributory negligence of the injured person.

To improve the condition of the injury-causing object is therefore to indicate a belief merely that it has been capable of causing such an injury, but indicates nothing more, and is equally consistent with a belief in injury by mere accident, or by contributory negligence, as well as by the owner’s negligence. Mere capacity of a place or thing to cause injury is not the fact that constitutes a liability for the owner; it must be a capacity which could have been known to an owner using reasonable diligence and foresight, and a capacity to injure persons taking reasonable care in its use. On this ground, then, namely, that the supposed inference from the act of improvement is not the plain and most probable one, such acts may foe excluded. To be sure, it may be argued that, on the general theory of Relevancy (ante, pp. 31, 38), it would suffice for admissibility if merely the inference was a fairly possible one—leaving it to the opponent to argue that it was the less probable one.

Theoretically, it would be perhaps difficult to deny this. But in the present instance an argument of policy has always been invoked to strengthen the case for exclusion. That argument is that the admission of such acts, even though theoretically not ⁶²⁹ plainly improper, would discourage all owners, even those who had genuinely been careful, from improving the place or thing that had caused the injury, because they would fear the evidential use of such acts to their disadvantage; and thus not only would careful owners refrain from improvements, but even careless ones, who might have deserved to have the evidence adduced against them, would by refraining from improvements subject innocent persons to the risk of the recurrence of the injury. Whatever, then, might be the strength of the objection to such evidence from the point of view of relevancy alone, the added considerations of policy suffice to make clear the impropriety of resorting to it.” We now come to a consideration of the prayers in the case.

The court granted the three prayers offered by the plaintiff, and the city’s 1, 3a, 3b, 4, 5, and 6; likewise the 1, 2, and 3 prayers of the receivers. With regard to the three prayers last mentioned, it is sufficient to state that the first two of them in different phraseology submitted the question of contributory negligence on the part of the plaintiff, while the third was a burden of proof prayer made applicable to the receivers. Plaintiff criticizes the third prayer, because it applies only to “Storrs and Meese” as defendants, his argument being that few lawyers and many laymen fail to understand the legal position of receivers respecting liability for torts committed by