Mayor of Baltimore v. Stalfort

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment recovered in the Superior Court of Baltimore City by the appellee, John C. Stalfort, against the appellant, the Mayor and- City Council of Baltimore. The declaration, consisting of one count, alleges that the plaintiff is the' owner of a leasehold interest in the premises known as 811 E. Lombard street, in the City of Baltimore, which are used and occupied by him as his place of business, and after alleging the power and duty of the defendant to open, construct, pave, maintain and keep in repair sewers and drains in and through the public streets and alleys in said city, it alleges that “along and through” Lombard street “there was, and still is, a sewer, drain and gutter for the purpose of carrying off the surface water therefrom,” and “that the defendant in the performance of its duties and obligations aforesaid, undertook to tear up and remove said sewer, drain and gutter in front of and in the immediate vicinity of the plaintiff’s premises on said Lombard street, and subsequently to reconstruct said sewer, drain and gutter, and to relay and repave the same for the purpose of carrying off the surface water aforesaid, and it thereupon became and was the duty of the defendant to reconstruct said sewer, drain and gutter and to relay and repave the same in a careful, proper and workmanlike manner, yet the .defendant reconstructed said sewer, drain and gutter and relaid and repaved the' same in a' careless, unskilful and ²⁷¹ negligent manner and left and allowed to remain in said paving large cracks and crevices in the spaces between the rocks and stones used in paving said sewer, drain and gutter in such way that instead of carrying off the surface water from said street, the said water settled iu said cracks and crevices and penetrated into the earth below said sewer, drain and gutter and saturated the said earth for a great distance ■around, so that the same became soft and springy, and the ■said water percolated through the same to, through and under the foundation of the plaintiff’s house and flooded the cellar ■of said house with large quantities of water * * * continuously from, on or about the 5th day of January, 1912, ■down to the time of the bringing of this suit. * * * by reason -of ,which and on account of the careless, unskilful and negligent manner in which the defendant reconstructed said ■sewer, drain and gutter and relaid and repaved the same, the said house and structure of the plaintiff were greatly ■damaged and injured and the foundation walls thereof rendered unsafe, and the said cellar of said house was rendered unfit for use by the plaintiff, and that a large quantity of stock, consisting of leather goods and hides, being stored in said cellar for use by the plaintiff in his business, was greatly injured and damaged and rendered valueless to the plaintiff.” To this declaration the defendant pleaded the general issue plea. At the conclusion of the testimony taken by the plaintiff and defendant, two prayers offered by the plaintiff were granted, and of the prayers offered by the defendant, two were granted, one granted as modified, and the others were rejected.

The defendant excepted to the action of the Court in granting the plaintiff’s prayers and in refusing to grant its rejected prayers, and in overruling its special exception to the plaintiff’s first prayer. By the first prayer of the plaintiff the Court was asked to instruct the jury that should they find that the defendant or its agents built the sanitary sewer “along Lombard street in front of the plaintiff’s property, and if the jury further find ²⁷² in so doing the defendant or its agents tore up and removed portions of the street bed and gutter on Lombard street in the immediate vicinity of the plaintiff’s property, and subsequently, after the construction of said sewer (if the jury so find) reconstructed, repaved and relaid the said torn up and removed portions of the street bed and gutter of said street in a careless, unskilful and negligent manner, and negligently left and allowed bo<- remain in certain portions of the said street bed and gutter at or near the northwest comer of Lombard and High streets certain ends of sheathing or lagging standing and protruding above the sw'face of the street, in such a way that instead of carrying off the surface water from said, streets, the water settled and penetrated into the nearby ground and eventually percolated and ran through the same into the cellar of the plaintiff’s house, flooding the same and damaging and injuring his premises and property, then the plaintiff is entitled to recover in this action.” The defendant specially excepted to the plaintiff’s first prayer for the reason that there was no legally sufficient evidence, (1) that the defendant tore up and removed portions of the street bed and gutter on Lombard street in the immediate vicinity of the plaintiff’s property and thereafter reconstructed, relaid and repaved such torn up and removed portions of said street bed and gutter; (2) or that the defendant was guilty of any negligence in the prosecution of any work which it engaged in, in the bed of Lombard street, in the laying of a sanitary sewer therein and in repaving over the trench in which said sewer was laidj (3) or that the defendant left certain ends of sheathing or lagging standing and protruding above the surface of the street, either in a negligent or any other manner; (4) or that said ends of lagging caused any damage to the plaintiff. And-the defendant’s first prayer asked the Court to take the case from the jury for a want of evidence, under the pleadings, entitling the plaintiff to recover. We will consider together the rulings of the Court in granting the plaintiff’s first prayer, and in overruling defend- ²⁷³ .■ill's special exception thereto, and in refusing the defendant’s , rsi prayer, in passing upon these rulings it will be necesr t.ary lor us to state at length the facts of this case. 1 lie plaintiff, John C. íátalíort, a leather manufacturer, was at the time of the alleged injury to his property com7 plained of in the declaration, January, 1912, the owner ot me building' situated on the northeast corner of Lombard and dbemane streets, in the City of .Baltimore, which at such time was used by him in his business, and in the cellar of which were stored the leather and hides which are said to have been injured by water entering the cellar at the time mentioned in the declaration.

The surface water upon Lombard street, at least east of Albemarle street, was then carried off by means of the open gutters upon the street. In the fall of .1910 the city constructed a sanitary sower under the bed of Lombard street starting at a point east of Lligh street, the next street oast of Albemarle street, and extending by and in front of the plaintiff’s permises to and beyond A Ibernarlo street on the west. This sewer was laid on the north side of the street and in constructing the sewer the city dug a trench about thirty-three» inches wide and ten or twelve feet deep in which they laid a terra cotta pipe twelve inches in diameter, and refilled the trench and repaved the street where the trench had been dug. it is alleged in the declaration that the defendant tore up and removed “the sower, drain and gutter in front of and in the immediate vicinity of the plaintiff’s premises on Lombard street and reconstructed said sewer, drain and gutter and relaid and repaved the same for the purpose of carrying off the surface water, in a careless, unskilful and negligent manner, and left and allowed to remain in said paving large cracks and crevices in the spaces between the rocks and stones used in paving said sewer, drain and gutter,” etc. The rower, drain and gutter there mentioned is not the sanitary sewer that we have spoken of, but the open gutter ?n the north side of Lombard sheet in front of the premises. ²⁷⁴ of the plaintiff. It was in the construction of the sanitary sewer that the gutter is alleged to have been torn up, and it was in the repaving of the street or gutter, as alleged by the plaintiff, where the trench was dug, that the charge is made, that the gutter was not carefully and skilfully relaid and repaved.

It is true, the plaintiff uses the words “sewer, drain and gutter,” but the reference there made was to the open gutter, and it was so conceded in the argument. This suit, therefore, is not brought to recover for injuries resulting from the negligent and unskilful manner of constructing the sanitary sewer, but for the reconstruction or repaving of the open gutter which had been removed and torn up-, as alleged by the plaintiff, in the construction of such sanitary sewer. Nor is it brought to recover for injuries resulting from the negligence of the defendant in properly maintaining and keeping in safe condition the open gutter referred to. As,to the exact location of the sanitary sewer, the plaintiff testified that it was constructed “in the street, close to the gutter,” and Covington K. Allen, assistant engineer to the Sewerage Commission, who was in charge of the sanitary sewer, testified that the northernmost line of the sewer treneh was about eighteen inches from the curb of Lombard street.

In opening the trench and refilling it, “the gutter or curb along' Lombard street was not removed,” but that in digging the trench he encountered at the corner of High and Lombard streets the iron gutter plates which were directly in the line of the trench, and these had to be removed so that the treneh could be dug under them. Upon the sides of the treneh was driven lagging two inches thick, and driven, we may assume, to or about the depth of the trench. To what extent the pavement between such lagging and the curb, a distance of eighteen inches- or less, was disturbed in the removal of the pave^ ment at the place where the trench was thereafter dug, and in digging this trench and in laying the pipe therein, is not specifically stated, but we do not think it a violent presumption that upon the completion of the work upon the sewer that ²⁷⁵ at least a portion of this paving in the gutter was in such a condition as to require repaving or relaying. It was put in evidence, however, by the city that upon the completion of the sanitary sewer the pavement that had been removed, torn up or disturbed in digging the trench and laying the sewer was thereafter properly relaid and repaved.

The evidence of the plaintiff as to the condition of the repaving does not relate to its condition at the time that it was done, but at the time of the injury, sixteen months after its completion. It is true, the witness Dehne, produced on the part of the plaintiff, stated that he saw this work being done and that it was not properly done, but the only reason he could give for stating that it was not properly done was because it was done by Italians. The evidence of the plaintiff as to the defects — 'the cracks and crevices — in the pavement, at the time of the injury, is indefinito, especially so as to the exact location of such defects. In fact, these defects seem to have been largely disregarded hy the plaintiff in the prosecution of his suit. lie relied, as it would seem, mainly, if not altogether, and based his right of recovery, upon the condition that was found in the gutter at the corner of High and Lombard streets under the iron gutter plate mentioned above.

This is shown hy his prayer, which makes no mention whatever of the defects mentioned and described in bis declaration. As to such defects he is silent in asking instructions of the Court. The evidence of the plaintiff as to the condition of the gutter under the gutter plate that we have referred to, was confined altogether to the time of the injury, except the testimony of Dehne, to which reference will he hereafter made. The plaintiff testified “that a man from the Water Department located a very large hole at the comer of High and Lombard streets that was not paved at all.

There was a kind of iron plate laid there and it was not paved at all and the water just went in there. That he saw a hole under the plate where the water ran right in underneath; even on the side of the gutter it was not paved right.” Edwin D. Stal ²⁷⁶ fort, a son of the plaintiff,.stated that the gutter underneath the gutter plates was left unpaved entirely. “There were planks left there with no> .cobble stones whatever over them, or around them, at all, as is usually done in paving, and being left open like that the water had a free flow.” In his cross-examination he further’ referred to these planks, saying “that they were those that are used in forming trenches when work of that character is being done — that is laying planks of any kind. These planks were extending above the ground in some places as much as six inches. There was no paving there whatsoever, there were no cobble stones, there was no- regular paving.

The ground was very soft and mushy, having this water over it all the time, and the water naturally flowing down in there caused the depth to he quite great, that is, one could take a crowbar or something even longer and bury it completely.” Another son,'Arthur J. Stalfort, testified that he was present when the employees of the City Water Department came down and removed the gutter plate