State v. Bealmear

¹¹ Adkijvs, J., delivered the opinion of the Court. The original narr. in this, case, the demurrer to which was sustained, does not appear in the record. It is from the judgment in favor of defendant on demurrer to the amended narr. that this appeal was taken. The amended narr. is as. follows.: ‘‘State of Maryland, City of Baltimore, to wit: “State of Maryland, to the use of Simon Lease, father of Morris Lease, deceased, by J ames J. Lindsay, its attorney, sues Cleveland R. Bealmear. “For that the defendant is the owner of a certain two lots of ground located on Alto Avenue between Llilton Street and Dennison Street, public highways of the City of Baltimore and State of Maryland, known as 3311 and 3313 Alto Avenue, and that on or about tbe 17th day of July, 1923, on the aforesaid two lots of ground, located as aforesaid, the said defendant was, through his agents and servants, in the process of erecting and maintaining two frame dwelling houses, and which said dwelling houses at the time of the commission of the wrongs and grievances hereinafter complained of, were in the process of erection and in a semi-slate of completion; whereupon at and about the time of the commission of the wrongs and grievances hereinafter complained of the said defendant had permitted the aforesaid premises to become and remain as an attractive nuisance, and as sueb was an invitation to children of tender and immature years to enter into and on said premises; and tbat on or about the aforesaid 17th day of July, 1923, the said defendant, through his agents and servants, had negligently, carelessly and recklessly caused and permitted a board to he placed in such a position that it established a passageway from the second floor of the rear of the dwelling at 3311 Alto A venue across and over the area way between 1he building in the process of erection at 3311 Alto Avenue and the building in tbe process of erection at 3313 Alto Avenue and into and upon the second floor of the said building located at 3313 Alto Avenue; and that the said board, by reason of being extended out of the second floor of one building into the second ¹² floor of another building, was maintained and permitted to remain without support and without being secure and without any stabilizing power of any kind whatever, and that the said defendant knew of the aforesaid negligent placing of the said board and the negligent and careless fastening thereof, or by the exercise of ordinary care, could have known of the aforesaid dangerous condition; and that the said defendant knew, or, by the exercise of ordinary care, could have known that the said premises and the said buildings which were in the process of being erected upon the premises 'aforesaid, were being used by children of tender and immature years for childish sports and pastimes, and that in neglect and default of his duty the said defendant did carelessly, negligently and recklessly allow and permit the said premises and the buildings in the process of erection thereon to remain unguarded and without notice or barriers or other warnings of any kind or character to children so using the said premises, warning them of the dangerous, unsafe and improper condition of the said premises and the buildings in the process of erection thereon, and the dangerous, defective and unsafe condition of the said plank or board extending as aforesaid from one .building to another; and that whereupon on the 17th day of July, 1923, whilst the defendant knew, or by the exercise of ordinary care and caution, should have known of the aforesaid dangerous, defective, unsafe and improper condition of the said buildings located on the premises aforesaid, and of the dangerous and negligent condition of the plank or board used as a passageway between the said buildings, and that children in the vicinity and the said Morris Lease, infant, now deceased, were in the habit of playing in and about the said premises, engaging in childish sports and pastimes, the said Morris Lease, infant, now deceased, did enter in and upon the said premises and the said ■buildings in the process of erection at 3311 Alto Avenue, and whilst attempting to cross along and over the said plank or board extending as aforesaid from the ¹³ second floor of .3311 Alto Avenue into the second floor of 3313 Alto Avenue, was by reason of the aforesaid negligence and carelessness of the said defendant, his agents and servants, in allowing and permitting the said board to extend out and across the areaway between the said building and in allowing and permitting the said board to be so placed without any stabilizing power and without being securely fastened or supported, and thereby causing the board or plank to sway and move as Morris Lease, now