Murray v. McShane ( 1879 )

Bowie, J.,

delivered the opinion of the Court.

The question raised by the demurrer in this case is, whether the owner of a house fronting on a public street, is bound to keep it in such a state of repair, that persons passing by, and lawfully using the property and street shall be protected from harm ?

The averments of the narr. admitted by the demurre'r are substantially as follows :

The defendants being the owners of a house fronting'on a public street in Baltimore, suffered the walls to become dilapidated, and the plaintiff passing the said house sat on the sill of the door temporarily for a necessary purpose, his head being projected into the street, when a brick fell from the wall of the defendants’ house, and struck the head of the plaintiff, without the wrong or negligence of the plaintiff, thereby inflicting the injury complained of.

The defendants contend that the plaintiff was a trespasser, and being such, contributed to his own hurt, and cannot recover for the consequences of his own wrong.

The appellant insists that the defendants by their demurrer admit their possession of certain fixed property, and that they suffered and permitted the front wall thereof, bordering on and adjoining the said street, to become and be greatly dilapidated and out of repair, so that the same became and was a source of peril to all persons lawfully passing upon and using the street, which constituted a nuisance, for which the defendants would be liable to those suffering special damages therefrom.

The principles upon which the appellant’s theory is based, are distinctly announced after a very elaborate review of the authorities by this Court, in the case of Deford vs. The State, use of Keyser, 30 Md., 205, in the course of which it is said, “ in all cases where a party is in possession of fixed property, be must take care that it is so used and managed, that other persons shall not he injured.”

In the case of Irwin vs. Sprigg, which was an action for an injury resulting from the non-enclosure of an area, around a basement window of a house of the defendant, this Court held it was an act of wrongful negligence, not to protect it from persons passing through such public ■street, and rendered the owner liable for accidents resulting therefrom, 6 Gill, 200, citing Copeland vs. Hardingham, 3 Campbell’s Repts., 398, in which Lord Ellenborough said, ‘ ‘ however long the premises might have been in that situation, as soon as the defendant took possession of them he was bound to guard against the danger to the public, and was liable for the consequences as if he had originated the nuisance.”

The appellees contend, that the appellant’s narr. fails to show a sufficient cause of action, that he was not a traveller passing along the street, but an intruder, who seated himself uninvited, within the door of the house, the sill being a step leading into said house from the public highway.

They rely with emphasis, upon a remark of the Judge delivering the opinion of this Court, in the late case of Maenner vs. Carroll, et al., 46 Md., 212: “To constitute a good cause of action, in a case of this nature, there should be stated a right on the part of the plaintiff, a duty on the part of the defendants in respect to that right, and a breach of that duty by the defendants, whereby the plaintiff has suffered injury,” and insist that there is no statement of a right, nor of a duty in respect of that right, nor a breach of that duty.

The proposition relied on by the appellees is a concise deduction from the adjudged cases, and a conclusion from first principles; there cannot be a wrong, without a right. But the question is, whether the facts set out in the appellant’s narr. do not show a case of right violated, and of duty neglected, and of injury resulting from that neglect of duty?

The obligation of the common and civil law, “sic utere tuo ut non alienum Icedas,” as recognized by the cases before cited, imposed upon the defendants the duty of keeping their premises in such «repair, that persons lawfully using the street and premises, should do so without injury. Travellers on a street, have not only the right to pass, but to stop and rest on necessary and reasonable occasions, so that they do not obstruct the street or doorways or wantonly injure them.

A ruined or dilapidated wall is as much a nuisance, if it imperils the safety of passengers or travellers on a public highway, as a ditch or a pit-fall dug by its side. It is immaterial whether the injury results from falling debris, or descending into an open area.

A special injury, from a public nuisance, is a conceded ground of action to the party hurt. “Two things!’ says Lord Ellenborough “ must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.” Butterfield vs. Forrester, 11 East, 60.

If, however the injury be such as could not have been avoided by the exercise of ordinary care, or was wantonly caused by the defendant, it would seem that the plaintiff, though negligent, is entitled to recover. Bridge vs. The G. J. R. Co., 3 M. & W., 244; Angell on Highways, 347, and authorities in note 3.

Highways, are but easements over the land, leaving the fee in the owner of the adjacent soil, subject to the public' servitudes. The person in whom the fee of the road is, may maintain trespass, or ejectment, or waste for the invasion of his rights. Yet, the traveller has corresponding privileges in the adjacent soil. A passenger on a public highway, may go “ extra viam ” if it be impassable. Douglas R., 745; 3 Stephens’ N. P., Title, Way, 2768; 2 Black. Com., note 26 by Christian.

The principle of this rule must extend to all other cases of necessity, which may overtake a traveller or passenger in a public thoroughfare, whether they arise from the state of the road; from persons, vehicles or property driven or carried over it, or from the personal wants of the passenger. He cannot stop in the highway, for that would impede others, and expose himself and them to danger.

Self-preservation, as well as public convenience, must justify, or make lawful, a temporary use of a fence, wall, or door-sill, binding on the highway,, in cases of accident, or sudden sickness, or personal infirmity, not delaying longer than absolute necessity requires.

This appears negatively, from what was said by Willard, J., in the case of Adams vs. Rivers, 11 Barbour, 390, cited in Angell on Highways. Trespass was brought by the adjoining owner, against a person who came upon the sidewalk, and there remained abusing him and refusing to depart. The learned Judge said, “ the defendant committed a trespass while standing on the sidewalk by the plaintiff’s lot, where he lived, and using towards him abusive language. While so engaged, he was not using the highway for the purpose for which it was designed, but was a trespasser. He stood there but about five minutes. It was not shown that he stopped on the sidewalk for a justifiable cause; on the contrary, it was rendered probable, that it - was for a base and wicked purpose. It was, therefore, a trespass.”

(Decided 20th June, 1879.)

. The “locus in quo” in that case, was the sidewalk, itself a part of the highway, hut the right of action arose from its being used for an unlawful purpose. The alleged “ locus in quo,” in this case, is partly in the highway, and partly on the property of the adjoining owner, the head of the plaintiff, which was injured, being within the lines of the highway, as alleged, and the body resting for a lawful purpose on the door-sill. He was not a trespasser “quoad hoc; ” if he had remained in. that position longer than necessary against the owner’s will, he might have become so.

We think the amended narr. set out a good cause of action, and, that the demurrer thereto should have been overruled.

Judgment reversed, and

new trial ordered.