Magaha v. Mayor of Hagerstown

Boyd, J., delivered the opinion of the Court. The appellant sued the appellee for damages sustained by him on account of its alleged negligence in permitting the accumulation of ice on Washington street, in the city of Hagerstown, upon which he slipped and fell, causing a fracture of his thigh bone and other injuries. At the conclusion of the testimony, the Court rejected five prayers, offered by the plaintiff and granted one, at the instance of the defendant, that “ The jury are instructed that the plaintiff has offered no evidence legally sufficient to entitle him to recover, and the verdict of the jury must be for the defendant.” A judgment was entered for the defendant on the verdict so rendered, and this appeal was taken from the rulings of the Court, in rejecting the plaintiff’s prayers and granting that of the defendant. About five o’clock in the morning of the fourth of January, 1901, the plaintiff was going along the north side of Washington street to his place of business when a friend on the opposite side of the street called to him and he started in a diagonal direction across the street to see him.

When he got within five or six feet of the curb he slipped on the ice and fell, his hip striking the curb. The evidence on the part of the plaintiff was to the effect that there was a terra cotta pipe running under the pavement from a saloon which emptied into a gutter, which is from two to two and a-half feet wide, and about three inches deep in the centre. The plaintiff fell at a point about sixty feet from where the pipe emptied. John M. Stahl, who lived next to the saloon, said the ice extended from the railroad, below where the plaintiff fell, to the pipe, was six inches thick in some places and extended into the street four or five feet; that ⁶⁸ it was there during the month of December and early part of January.

He also said he told the Mayor and Chief of Police about it. Other witnesses testified to the same effect as to the condition of the street, and their evidence tended to show that the ice was formed from water coming from the saloon, and that the street remained in that condition from the latter part of November, or early in December, until the ice melted in the spring. There was a descending grade from where the pipe emptied to the place where the plaintiff fell. That portion of the street was macadamized and there was no cross-walk from High street to the Public Square, a distance of three squares, and the one at High street was four hundred feet from where the accident happened.

The ice was smooth where the plaintiff fell, but was rough in some places, forming ridges, and was somewhat oval shaped. The first question to be considered is whether the case should have been submitted to the jury. In determining that we are, of course, to accept the evidence offered by the plaintiff, and cannot be governed by the fact that the defendant offered some in contradiction of parts of it. The appellee contends that the plaintiff cannot recover, ist, because he was guilty of contributory negligence, and 2nd, because the defendant is not liable under the circumstances, independent of the alleged negligence of the plaintiff.

It may well be questioned whether the first contention is properly before us, as no prayer was offered directly presenting it. The prayer granted by the Court did not call upon it to determine whether the plaintiff had been guilty of contributory negligence. When that is desired a prayer directing the Court’s attention to the alleged negligence of the plaintiff, as a ground for refusing him relief, should be offered. “By such an instruction,” as the one before us, “the point decided is simply the legal itisufficiency of the evidence to be considered by the jury.” W. M. R. R. Co. v. Carter, 59 Md. 311 . But as we are of the opinion that the case must be reversed, and as the question has been fully argued, we will consider it. i.

We find nothing in the record that establishes such neg ⁶⁹ ligence on the part of the plaintiff as to justify the Court in determining, as a matter of law, that he so contributed to the accident as to preclude his recovery. It is not negligence per se for a pedestrian to cross from one side of the street to the other, and it has been held by this Court “that persons have the right to cross the streets at any point along the thoroughfare.” Helm’s case, 84 Md. 526 , and others there cited. If a municipality provides suitable and convenient crossings, pedestrians cannot expect the whole of the thoroughfare to be kept as clean and smooth as the sidewalks, but unless he has notice of some defect, or by the use of due care could discover it, a person who crosses a street at a place other than a fixed crossing cannot be said to be thereby necessarily guilty of negligence. And when, as in this case, the nearest crossing is four hundred feet away, it would be exacting a great deal of a pedestrian to require him to go to it, instead of crossing where he is to speak to a friend who is on the opposite side.

"A person desiring to cross the street, either in the nighttime or in the daytime, is not confined to a crossing. He has a right to assume that all parts of the street intended for travel are reasonably safe.” Brusso v. Buffalo, 90 N. Y. 679 . See also Baker v. Grand Rapids, 111 Mich. 447 ; Lincoln v. Detroit, 101 Mich. 245 ; Raymond v. Lowell, 6 Cush. 524 ; Junction City, v. Blades, 59 Kansas, 774. Of course there may be circumstances which call upon one thus using a street to exercise greater care than would be required of him oir the sidewalks, or places especially intended for pedestrians.

But there is nothing in this record to show that the plaintiff was so indifferent to his own safety, or so lacking in the use of proper care, as to authorize the Court to say that he was negligent. He testified he did not know the ice was there; that he walked as he always did, strong and firm, that he was always a careful walker, and was as careful that morning as he ever was in his life. He also said there was no ice on the side from which he came, and if he had known there was on the other side he would not have gone over. It is true it was dark, but he had no reason to suppose he was going ⁷⁰ into a dangerous place, if his testimony is to be believed, and that was for the jury.

It was suggested by the counsel for the appellee that prudence required him to ask his friend, who had,a. lighted lantern, to elevate it or come forward so as to light the way. • If he had known the ice was there he might have done so, but he says he did not know it, and hence had no reason to fear that he would subject himself to such danger by.crossing the street at that point. Ordinarily it -is for the jury-to determine whether a plaintiff has been, guilty of contributory negligence, and it is only when there are undisputed facts or circumstances establishing such negligence that the Court is authorized to decide that question. On this branch of the case therefore we think it was for the jury to say whether the plaintiff was negligent, and if so whether such negligence directly contributed to the inj ury complained of. In that connection it could have considered his opportunities to know the condition of the street, which his witnesses testified had existed for some weeks, and any other facts reflecting upon the question. 2.

There can be no doubt that it is the duty of a municipality to keep the streets in a reasonably safe condition, when it is in its power to do so. But what is a reasonably safe condition must depend upon circumstances, and no city or town can be required to keep them absolutely safe under all circumstances. It would,' for example, be very unreasonable to require the authorities of a city, such as Hagerstown, to keep its streets between the sidewalks, at all times free from snow and ice. The winters in that part of the State are often sufficiently severe to make it impracticable, if not impossible, to avoid having more or less ice on the streets for considerable periods of time.

It sometimes happens that snow is so packed on the streets by the ordinary use of them, or is followed by such weather as to put it beyond the power of the authorities to remove it or prevent ice accumulating, by the use of such reasonable means as can be demanded of them. In cleaning the sidewalks the snow generally is, and usually must be thrown into the street and in a city like Hagerstown it would ⁷¹ be demanding too much to require it to be hauled away or entirely removed from the streets. Then again snow and rain may fall at the same time, or close together, and be followed by cold weather so as to produce such conditions as must continue until relieved by a change of temperature. Under such and similar circumstances it would not do to hold a municipality responsible for injuries sustained by one falling, by reason of slipping on ice, especially if he was not on the sidewalk.

Rut this record presents facts, as shown by the plaintiff’s witnesses, which distinguish the case from those arising under such conditions as we have just spoken of. The Mayor and Council of Hagerstown had the power to pass ordinances necessary for the good government of the city ; “to prevent, remove and abate all nuisances or obstructions in or upon the streets, highways, lanes or alleys, drains or water courses.” Sec. 171 of Art. 22 of Code of Public Local Laws. We have already stated some of the facts attempted to be proven by the plaintiff From them it will be seen that the condition of this street when the accident happened was owing entirely to the fact that the proprietor of a saloon was permitted to empty water into the street in large quantities. This had been going on for several years.

One witness said it would commence to freeze as soon as cold weather set in and disappeared in March, and when the pipe would freeze up the water was thrown out from the saloon in buckets at night. The ice formed from four to six inches in thickness, extended into the street in some places four or five feet, filled up the gutter and ran in on the pavement and covered a distance of sixty or more feet in length, varying in width. When the accident happened it had