Walker v. Marye

Fowler, J., delivered the opinion of the Court. While walking along the sidewalk on Saint Paul street in the city of Baltimore, William Walker, who is alleged to be an infant under the age of twenty-one years, stumbled and fell over what is described as “a water-pipe and cup” which extended above the level of the pavement some three or four inches. This alleged obstruction happened to be immediately in front of the house known as No. 325 St. Paul st, which is owned by the defendant, Elizabeth M. B. Marye, jointly with other persons. This is an action brought by Walker against all the joint owners or tenants in common, to recover damages for the injuries resulting from the fall above described ; but it appears that only the defendant, Mrs. Marye, has been summoned—the other two defendants having been returned non sunt.

The defendant who was summoned demurred to the declaration. This demurrer was sustained and there was a judgment thereon for the defendant with costs. From this judgment the plaintiff has appealed. The declaration consists of two counts.

The material averments of the first count are that the defendants are the owners and possessors of the dwelling house No. 325 St. Paul street; that on the foot pavement thereof, and as appurtenant thereto and belonging to the defendants was a round iron pipe and cup which extended above the level of said footway some three or four inches ; that said water-pipe obstructed and interfered with the free and unobstructed use by the public of said pavement, which is a public highway in the city of Baltimore ; that the plaintiff though using ordinary care while passing over said pavement was injured by coming in contact with said water-pipe ; that such injuries were directly caused; by the negligence of the defendants in not removing said nuisance, &c., &c. The second avers, in addition to the facts set forth in the first, that when the defendants came into possession of the ⁷⁷⁰ property they found the alleged nuisance “existing upon said premises” and have rented the said premises with the said nuisance in use upon it and as appurtenant thereto, &c. From this recital of the averments of the declaration it is apparent that the object of this suit is to recover damages for injuries resulting from an obstruction or nuisance existing in one of the highways of the city of Baltimore. It is not alleged that the defendant placed or caused this nuisance to be placed in the highway, but the allegation is that she is the owner of the house .in front of which the plaintiff was injured, and that the water-pipe which caused the injury is in the pavement in front of her house.

It is true it is alleged in the first count that this pipe Is appurtenant to the house and belongs to the defendant. And in the second that the house was rented with said nuisance in use upon it and as appurtenant thereto. Without stopping to inquire whether under any circumstances a demurrer can be held to admit these averments—especially that which avers that the property was rented with a nuisance appurtenant to it, we will briefly consider the main and controlling question presented. That question is, admitting that the alleged obstruction exists in the highway in front of the defendant’s house, whether under the facts alleged she is under any duty to the plaintiff to remove such obstruction or remedy the alleged dangerous condition of the sidewalk ?

The answer to this question, we think, is found in the leading case of Flynn v. The Canton Company, 40 Md. 317 . In that case it appears that the plaintiff “slipped and fell upon a sheet of ice on the pavement or sidewalk of O’Donnell street * * * and was permanently disabled ; that she was walking with ordinary care and could not see the ice because of a slight covering of snow;” that the pavement was in front of the premises of the defendant, who had been repeatedly notified of the dangerous condition of the sidewalk and to remove the ice and snow which had accumulated and remained there until the plaintiff was injured. It was held that the defendant was not liable. The late Judge Miller, who delivered the opinion of the