Mayor of Baltimore v. Schnitker , 84 Md. 34 ( 1896 )

Roberts, J.,

delivered the opinion of the Court.

This is an action brought by the plaintiff (appellee here) for the recovery of damages alleged to have been sustained by him, in consequence of the water getting into his cellar on July 5th, 1895, when there was an extraordinary fall of rain. The defendant (appellant here) had constructed one of its sewers, called Harford Run, under the bed of North Eden street, between Madison and McElderry streets, and along the front of plaintiff’s premises in Baltimore City. Upon the occasion of the 5th of July, just mentioned, a large quantity of water, mud, and other debris burst out of the man-hole of said sewer, and flooded the plaintiff’s cellar, depositing therein a quantity of mud and other matter. The sewer in question was completed in the year 1883, and previously thereto a tunnel had been built which diverted to the east, to Harris’s Creek, in said city, a large part of the surface water that originally came down through the section or close to the line now occupied by the sewer, which was constructed in lieu of an open drain, to take care of the water left after the diversion.

The plaintiff’s contention is, that the sewer was negligently suffered by the defendant to become foul and partially filled and obstructed with mud, filth and other matter, and unsafe and out of repair, so that the same was insufficient to carry off the water, which was accustomed to flow in and through said sewer, and that the defendant had notice of its condition. The defendant claims, 1st, that there was no such obstruction, and no evidence legally sufficient to show the same. 2nd. That if such obstruction did exist, there was no evidence of any notice thereof or that there was negligence, or an absence of proper care on the part of the defendant in failing to obtain notice.

There is testimony in the record to show that the sewer is what may be termed “ a self-cleaning sewer,” but upon the occasion of the flood of July 5th, 1895, when the fall of rain is conceded to have been extraordinary, it was found to be of insufficient capacity to accommodate the volume of water which then emptied into it. The evidence shows that on this occasion the flow of water in the sewer was so great that the lid of the man-hole, near plaintiff’s premises, was lifted off and forced from its usual position, and that in consequence of the obstruction of the sewer, the water, mud, filth and other debris which was intended to be carried off by the sewer, flowed back upon and into the property of the plaintiff, by which he was 'damaged. There is but one question arising on this appeal which needs to be determined, and that relates to the alleged obstruction of the sewer. We have carefully examined the testimony in the record, and have failed to discover any evidence from which a jury would be fairly and reasonably justified in finding the existence of an obstruction of the sewer on the date, July 5th, 1895. Nor is there a particle of legal evidence in the cause going to show that if any obstruction existed the defendant had notice of it, or by the exercise of proper care it might have known of its condition. The wrenching off of the lid of the man-hole, and the forcing upwards of water through it, might tend to show the limited capacity of the sewer to carry off the water when flowing in an excessive and unusual manner, but it certainly furnished no evidence of an obstruction of the sewer. The time during which the water came up out of the man-hole lasted from ten to fifteen minutes. As illustrating the extent and character of the rain storm of July 5th, 1895, the amount of rain which on this occasion fell during a period of forty minutes was only a little less than four hundred hogsheads, or twenty-five thousand gallons to an area of an acre of land; and it was further proved that such rains have visited the locality three or four times during the past twenty-five years. This statement of the facts is sufficient to a proper understanding of the controversy which the records presents.

There are two exceptions in the record. The first of which relates to the action of the Court below in granting the plaintiff’s first and third prayers, and in rejecting the defendant’s fourth, fifth, sixth, seventh and tenth prayers. The second exception is taken to the Court’s action in overruling the defendant’s special exceptions to the plaintiff’s first prayer, as being without evidence to support it. It will not be necessary to give extended considerations to each of the plaintiff’s granted prayers, nor to the defendant’s prayers which have been rejected. The defendant can only be made responsible to the plaintiff for the damage sustained by him, by reason of the overflow of the sewer into his cellar, and on to his premises, upon proof of some fault or neglect on its part, either in the construction of the sewer or in its failure to keep it in proper repair. The record fails to disclose sustaining proof of either hypothesis; there is somé slight testimony in the cause of a small accumulation of sand in the sewer before the 5th of July, but there is not any evidence legally sufficient to show that the sewer was obstructed at the time of the rain-fall of the date last mentioned. There being no fault claimed to exist in the construction of the sewer causing the overflow, it was incumbent upon the plaintiff to show a neglect by the defendant to remove the obstruction, after notice of its existence or some omission of duty on the part of the defendant’s officers. Mayor v. Sheffield, 4 Wallace, 195; Kranz Bro. v. Mayor, &c., of Baltimore, 64 Md. 498; Hitchins Bros. v. Mayor, &c., of Frostburg, 68 Md. 112. The defendant does not insure its citizens against damage from works of its construction, and is only liable as other proprietors for negligence or wilful misconduct. The principles upon which municipal corporations are held liable for damages occasioned by defects in streets and sewers, and other public works, are well settled by numerous cases in this Court and elsewhere. Upon the conclusion of the testimony the defendant offered several prayers, one of which was “ That there is no evidence in the cause legally sufficient to entitle the plaintiff to recover.” This prayer was refused'and the defendant appealed from this and other rulings. The effect of the prayer is that of a demurrer to the evidence and raised the question of the right of the plaintiff to recover, assuming all the evidence offered by him to be true. For the reasons which we have heretofore given, the prayer, in our opinion, ought to have been granted. And for the additional reason, the plaintiff relies upon two distinct causes, as having produced the injury complained of, and as Mr. Chief Justice McSherry, in County Commissioners of Harford County v. Wise, 75 Md. 40, 41, delivering the opinion of this Court, says, “A case is thus presented where the injury complained of must have resulted from one or the other of two distinct causes, and not from both together, and when, if produced by the one, the defendants are not liable though they are answerable if produced by the other. If the evidence adduced by the plaintiff does not show to which one of these two causes the damage is actually due, can a recovery be had ? In cases like this the burden is on the plaintiff to prove that the defendant has been guilty of negligence, and that such negligence has occasioned the injury. If his evidence fails to establish either of these propositions, that burden has not been gratified.” Upon either horn of his dilemma, the the plaintiff has failed to establish a case entitling him to a recovery. This conclusion disposes of the case, and renders it unnecessary to pass upon the other questions discussed at the hearing in this Court.

(Decided June 18th, 1896).

It follows, then, from what we have said, that the judgment of the Court below must be reversed.

Judgment reversed with costs.