Sutton v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. This is an appeal by George D. Sutton, plaintiff, appellant, from the action of the trial judge in granting a motion for a judgment n.o.v., setting aside the verdict of a jury, and entering a judgment for costs for the Mayor and City Council of Baltimore, defendant, appellee, because of contributory negligence of the plaintiff as a matter of law. Previous to January 4, 1955, plaintiff had had an operation ⁵⁸³ performed on his hip. This was successful and he had good use of his leg.

He was able to walk at reasonable speed and could run if necessary. However, he endeavored to protect his hip at all times. On January 4, 1955, a clear, cold day, plaintiff alighted from a bus at the corner of William Street and East Fort Avenue in Baltimore and proceeded along the east side of William Street in the 1400 block going north to the office of his doctor. The front steps of the houses in that block projected out in the public sidewalk for varying distances.

Several trees were planted along the sidewalk which was 10 feet in width. One of the trees was planted in front of 1423 where the steps protrude 3 feet 7 inches out into the sidewalk. This tree was surrounded by a tree box which was filled with broken bricks. The width of the concrete sidewalk, consisting of three defective blocks, from the edge of the steps to the edge of that tree box was 9 feet 9 inches.

Another tree, approximately 20 inches in diameter, surrounded by a tree box 3 feet by 4 feet, was planted in front of 1421. The dirt in that tree box was at a lower level than the sidewalk and constituted a depression of approximately 6 inches. The width of the concrete sidewalk, consisting of two defective blocks, from the edge of the steps in front of 1421 to the edge of the tree box was 5 feet 5 inches. This sidewalk had been defective since 1952.

Plaintiff testified that he had been along this sidewalk on one or two occasions two or three months before. On January 4, 1955, he said he saw three trees ahead of him but did not see the tree boxes. He started up the street and said he watched for the pavement which was in a very bad condition in that block, not only in one spot but in quite a few spots. He passed one tree before arriving in front of 1423.

As he approached 1423 he was walking closer to the houses and was watching the steps so he could walk around them. When he reached 1423 he was compelled to walk to the left to get around the steps where there were several defective places in the center of the sidewalk. He saw the tree in front of 1423 as it loomed up in front of him. Pie said he would not have seen the tree box even if he had been looking in the direction of the tree.

He did not see the broken bricks at the ⁵⁸⁴ base of the tree because ’he was watching the defective places in the sidewalk and the steps which were in the way. He was watching the steps and the other defective areas in the sidewalk beyond the tree box in front of 1421. As he attempted to step around the tree in front of 1421 his left foot went into the depression at the base of that tree. This caused him to fall and break his right leg.

As contended by the plaintiff, the same degree of care to avoid accidents is not required by a pedestrian upon a sidewalk as by a person upon a city street. Denbow v. C. & P. Telephone Co., 199 Md. 609, 615 , 87 A. 2d 584 , and cases there cited. Plaintiff here contends that, because his attention was distracted by the imperfections in the sidewalk and by the steps, he was relieved of the duty to observe the tree box into which he stepped. However, a party cannot walk upon an obstruction which has been made by the fault of another and avail himself of it, if he did not himself use common and ordinary caution.

Butterfield v. Forrester, 11 East. 60; Irwin v. Sprigg, 6 Gill 200, 205, 206 . In Mayor & City Council of Baltimore v. Mattern, 133 Md. 14 , 104 A. 478 , relied on by the plaintiff, the plaintiff there, while carrying her seventeen months old child in her arms, stepped into a hole in the crosswalk of a street in Baltimore during daylight. The Court held that, as she was carrying her child, it was easy to understand why the hole could escape her attention and that she was not guilty of contributory negligence as a matter of law. In Vannort v. Commissioners of Chestertown, 132 Md. 685 , 104 A. 113 , plaintiff, 81 years of age, had known for two or three weeks that there was a hole in the sidewalk.

After dark, the street not being lighted and the opening covered by snow, he fell into the hole. He testified