Owings v. Jones

Le Grand, C. J., delivered the opinion of this court. This is an appeal from the Superior Court of Baltimore city. The action was brought in the court below, to recover damages for an injury alleged to have been sustained by the plaintiff from failing into a hole or vault opened under the pavement on a public street in the city of Baltimore, appurtenant to a lot fronting on said street, belonging to the appellant. The declaration contained two counts, the first of which alleged, that the defendant (appellant) being possessed of a certain messuage, &c., “wrongfully and unjustly made and opened a certain hole leading to the vault and sink, under the said street, belonging to the same messuage and premises, and unjustly and wrongfully placed and kept a weak and insufficient covering upon the hole leading to the said vault and sink, by means and consequence of which said wrongful', unjust and negligent, and improper conduct of the said defendant,” the said plaintiff “ necessarily and unavoidably slipt and fell into said vault,” &c.

The second count alleged, that the defendant being "the owner and possessor” of the messuage referred to, situate on the public street therein described, and upon which there was “ a certain hole opening into a certain vault or sink under said street, which the owner and possessor, and in the possession, ¹¹⁵ occupation, use and enjoyment of the said messuage, “ opened or caused-to be opened, and negligently closed the said vault or sink and the said hole,” by means whereof, &c., the plaintiff " necessarily slipt and fell into the said vault” & c. The defendant below plead not guilty, upon which the issue was joined. At the trial the plaintiff offered evidence by the witness Sprague, that defendant was the owner of the messuage described in the declaration; that he first knew the property in 1850, when he rented a room in the house from William C. Peters. And by Amos, another witness, that he was one of the hands who cleaned the sewer in question with three other hands; that after cleaning it, in putting back the stone covering its mouth, said stone broke in half, although they were careful in letting it down; and by Andrews, that he had hold of the stone, and when letting it down he let go of it to avoid mashing his fingers, and it then broke.

That when taking it up it was so firm that four men had to raise it with picks. It was about 2|- inches thick and 2\ feet square. A plank was put over it, but not more than a foot wide. That the stone had not then fallen in; that witness went back in the afternoon, when there was neither plank nor stone over tire sewer, and that a new stone was brought about two hours afterwards.

This was in August 1852. The plaintiff further offered in evidence by Lindley Ellicott, that on the evening of some day in August 1852, hearing screams from Bank Lane, he proceeded to this sink, in which he found the plaintiff, who was withdrawn therefrom with ropes, and that there was no plank over the hole. That this occurred between five and seven o’clock in the evening. He likewise offered evidence by said witness, that the plaintiff at this time was in the employment of Dr. Davis, who resided on St. Paul’s street, whose carriage-house door was veiy near to this sewer, which was on Bank Lane, and it was necessary for the plaintiff to pass and repass over the vault of the sewer, and that the pavement under which it was opened was very narrow.

He then offered evidence by Drs. Smith and Jenkins of the ■ nature and extent of the injury inflicted upon him. ¹¹⁶ The defendant, in the progress of the cause, offered in evidence the agreement of lease between himself and W. O. Peters, by which it appeared the property was leased for the term of seven years, Peters agreeing to pay therefor a certain annual rent; but in no manner stipulating to keep the demised premises in repair, nor to cause to have kept cleaned the sink. He also proved that possession of the property was taken by Peters between the months of January and April 1850. The plaintiff gave in evidence the ordinances of the mayor and city council of Baltimore, No. 49 of 1838, and No. 16 of 1850, and having proved the vault was made in 1849, rested his case.

On this state of proof the defendant submitted to the court two