Mayor of Baltimore v. Walker

Briscoe, J., delivered the opinion of the Court. This is a suit instituted by the appellee against the Mayor and. City Council of Baltimore, to recover damages for personal injuries received by him while walking on one of the public streets in the city of Baltimore, and alleged to have been occasioned by the negligence of the city in not maintaining one of its streets in proper repair. At the trial of the case, there were four bills of exception reserved by the appellant; three relate to the rulings upon the admissibility of evidence and one to the rulings upon the prayers.

The declaration contains two counts. The first alleges that the defendant is an incorporated city, and is bound to keep its streets in repair; that one of its streets called St. Paul street, was negligently suffered to be out of repair whereby the plaintiff in travelling on this street and using due care was hurt. The sécond count alleges: “For that the defendant is an incorporated city, and as such owns and controls the waterworks and system whereby water is distributed throughout the city; that as part of the system a water-cock was placed in the foot-pavement 'of St. Paul street, a public highway in the city of Baltimore, and used by the city in cutting off whenever it should be necessary to do so, the water served to. premises known as 325 St. Paul street; that the water-cock was placed about six inches inside of the curb line of the pavement, and was negligently suffered by the defendant to extend about three or four inches above the footway, so that it obstructed and interfered with the free and unobstructed use ⁶⁴¹ by the public of the highway; that on the night of the 24th of November, 1900, the plaintiff while passing along the highway and over the pavement, without the knowledge of the existence of the water-cock and which (it being night time), he neither saw nor was able to see, though using ordinary care, the foot of the plaintiff came in contact with the water-cock and he was thrown violently to the ground striking his head with great force against the pavement, in consequence of which he became unconscious, and so remained for a long time, and besides in falling struck and severely injured his neck, left leg and knee, and received other injuries whereby he suffered great pain, and has been, besides permanently injured and rendered unable to earn his livelihood, and the injuries were caused by the negligence of the defendant as above set forth, and not by want of due care or caution on his part or on the part of his lawful guardian or Bernice Jones, his next friend thereunto contributing.” The material facts, as shown by the record, are as follows: The appellee, William Walker, a youth about ten years of age, while walking along the sidewalk, on St. Paul street, in the city of Baltimore, on the night of November 24th, 1900, stumbled and fell over what is called “a water pipe or stop-box,” which projected about two or three inches above the pavement where the accident happened. The water pipe was located on the pavement at 325 St. Paul street and was constructed by the city for the purpose of turning on and cutting off the water from the premises.

The pavement is described at about nine feet wide, but a portion of this space was covered by a door step, which left the footway at the place where the accident occurred, about 4 y2 feet wide. On the night of the accident, the plaintiff was returning home alone, having gone with his grandmother to deliver some laundry, and was coming south, on St. Paul street, when he struck his foot against the water pipe, and was thrown violently to the ground, striking his head against the pavement, and sustained severe and permanent injuries. Robert M. ⁶⁴² Killmeyer, the only witness to the accident, testified, that the night was dark and rainy, and as he was returning home, he heard a boy holloa, and at the same time, he saw him fall, having stumbled over the water pipe in front of 325 St. Paul street. He also testified, that “he heard the boy holloa and went and picked him up and asked him, if he had hurt himself and he said, he had, he had hurt his head, that he had stumbled over the water pipe.

I picked him up and carried him home, and the next morning he was lying in bed, and said he felt badly.” The boy’s condition was such as to prevent him from testifying in the case. It also appears from the evidence that the water pipe had been allowed to project above the pavement for over ten years, and that it was repaired • after the accident by the City Water Department and is now even with the pavement. Mr. Read, Secretary to the Water Department of Baltimore, testified that there are about ninety thousand of these water pipes or top-boxes in the city, and they are supposed to be put in flush with the pavement and if they protrude above the pavement, it is owing to the sinking of the pavement. There was other testimony on the part of the plaintiff and defendant, but as the evidence stated by us presents the material facts, we do not deem it necessary to review it here.

As the questions, presented