Murray v. McShane

Bowie, J., delivered the opinion of the Court. The question raised by the demurrer in this case is, whether the owner of a house fronting on a public street, is bound to keep it in such a state of repair, that persons passing by, and lawfully using the property and street shall be protected from harm ? The averments of the narr. admitted by the demurre'r are substantially as follows : The defendants being the owners of a house fronting'on a public street in Baltimore, suffered the walls to become dilapidated, and the plaintiff passing the said house sat on the sill of the door temporarily for a necessary purpose, his head being projected into the street, when a brick fell from the wall of the defendants’ house, and struck the ²²⁵ head of the plaintiff, without the wrong or negligence of the plaintiff, thereby inflicting the injury complained of. The defendants contend that the plaintiff was a trespasser, and being such, contributed to his own hurt, and cannot recover for the consequences of his own wrong.

The appellant insists that the defendants by their demurrer admit their possession of certain fixed property, and that they suffered and permitted the front wall thereof, bordering on and adjoining the said street, to become and be greatly dilapidated and out of repair, so that the same became and was a source of peril to all persons lawfully passing upon and using the street, which constituted a nuisance, for which the defendants would be liable to those suffering special damages therefrom. The principles upon which the appellant’s theory is based, are distinctly announced after a very elaborate review of the authorities by this Court, in the case of Deford vs. The State, use of Keyser, 30 Md., 205 , in the course of which it is said, “ in all cases where a party is in possession of fixed property, be must take care that it is so used and managed, that other persons shall not he injured.” In the case of Irwin vs. Sprigg, which was an action for an injury resulting from the non-enclosure of an area, around a basement window of a house of the defendant, this Court held it was an act of wrongful negligence, not to protect it from persons passing through such public ■street, and rendered the owner liable for accidents resulting therefrom, 6 Gill, 200 , citing Copeland vs. Hardingham, 3 Campbell’s Repts., 398, in which Lord Ellenborough said, ‘ ‘ however long the premises might have been in that situation, as soon as the defendant took possession of them he was bound to guard against the danger to the public, and was liable for the consequences as if he had originated the nuisance.” ²²⁶ The appellees contend, that the appellant’s narr. fails to show a sufficient cause of action, that he was not a traveller passing along the street, but an intruder, who seated himself uninvited, within the door of the house, the sill being a step leading into said house from the public highway. They rely with emphasis, upon a remark of the Judge delivering the opinion of this Court, in the late case of Maenner vs. Carroll, et al., 46 Md., 212 : “To constitute a good cause of action, in a case of this nature, there should be stated a right on the part of the plaintiff, a duty on the part of the defendants in respect to that right, and a breach of that duty by the defendants, whereby the plaintiff has suffered injury,” and insist that there is no statement of a right, nor of a duty in respect of that right, nor a breach of that duty. The proposition relied on by the appellees is a concise deduction from the adjudged cases, and a conclusion from first principles; there cannot be a wrong, without a right.

But the question is, whether the facts set out in the appellant’s narr. do not show a case of right violated, and of duty neglected, and of injury resulting from that neglect of duty? The obligation of the common and civil law, “sic utere tuo ut non alienum Icedas,” as recognized by the cases before cited, imposed upon the