President & Commissioners v. Kelly

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment of the Circuit Court for Wicomico County, in a personal injury case, entered upon the verdict of a jury in favor of the appellee. The appellant contends that the court erred in refusing a motion for directed verdict at the conclusion of the whole case and in refusing to grant a motion for judgment N. O. V. The appellee, fifty-seven years of age, was injured when she fell and broke her arm on a brick sidewalk in Princess Anne, on October 30, 1949 at about 10 P.M. on a dark, clear night. She lived in Crisfield, but on the night in question had attended a Halloween party at the fire house on Prince William Street, accompanied by her son and daughter-in-law.

He had parked his automobile on the west side of Beechwood Street about forty-five feet south of its intersection with Prince William Street. Other automobiles were parked on both sides of Beechwood Street. When they left the fire house to return to the automobile, the appellee was walking with her daughter-in-law, the appellee being nearest to the curb. She had never been on Beechwood Street before.

As she approached the automobile and was alongside of it, she testified that she stepped into a “deep hole”, which caused her to fall. The appellant argues that her characterization of the depression is without significance, but there can be no doubt that there was a depression at that point. The appellant itself offered testimony to show, by an instrument survey, that there was a depression of an average depth of one-half inch, and a maximum depth of one and three-quarter inches below the level of the rest of the sidewalk. The depression extended over an area of about three square feet next to the curb, where thirteen and one-half bricks were missing.

The bricks had been removed by a plumber who dug up the street and sidewalk to repair a water or ²⁷¹ sewer connection at a time variously estimated at from six to eight years, or from eight to ten years before the accident. Instead of replacing the bricks he simply put back the dirt which had settled or eroded below the surrounding level. The existence of the depression was well known to the neighbors and the town authorities. The Chief of Police testified that he knew about the missing bricks for at least seven years before the accident.

There was testimony, however, that there had been no complaints, and no record of any previous accident to persons using the sidewalk. The appellant also produced testimony that the street was well lighted, although the witnesses for the appellee testified it was dark at the scene of the accident and “shaded”. There was a street light located near the intersection on the southeast corner of Beechwood Street and Prince William Street, the light being twenty-two and one-half feet above the street. Beechwood Street is thirty-five feet wide.

On the night in question, because of the festivities, a 250 candlepower bulb had been substituted for the usual light. Another street light was located about 180 feet south of the intersection. It was shown, however, that visibility on the sidewalk would be affected by the shadows cast by the parked automobiles. Apparently there were no street lights on the west side of Beechwood Street.

The appellant chiefly contends that there was no legally sufficient evidence of primary negligence. It argues that the depression was slight, that the town is not an insurer, and that the sidewalk was in a reasonably safe condition, as evidenced by the absence of any record of prior accidents. It relies chiefly upon the cases of Leonard v. Lee, 191 Md. 426 , 62 A. 2d 259 , and Cordish v. Bloom, 138 Md. 81 , 113 A. 578 . The fall in the Leonard case was not due to a depression but to slipping on a cement sidewalk which was in good condition, though somewhat smooth.

In the Cordish case the plaintiff caught his foot in a space between a cellar door and its iron frame, and the case was allowed to go to the ²⁷² jury, although the court remarked that if he had merely slipped, the city would not be responsible. In this connection the court said, 138 Md. at page 84 , 113 A. at page 579 , quoted in the Leonard case, 191 Md. at page 432 , 62 A. 2d at page 262 : “While a municipality must generally respond in damages for injuries caused by its negligence, acts ‘ or omissions, especially in connection with the public streets and sidewalks under its care and control, there must be a limit to such liability, and it cannot be held responsible for injuries caused by every depression, difference in grade, or uneveness in sidewalks. No city, town, or village could maintain a perfectly level or even surface in all of its