Walker v. Marye , 94 Md. 762 ( 1902 )

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, whichis 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 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 thehighways 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 Court, said that "the nuisance, if such it be, was not caused or created by the act of the party sued. The ice, the occasion of the injury, was not on the property of thedefendants, nor was it placed on the pavement through the instrumentality or agency on their part." And so in the case at bar. It is nowhere alleged in the narr. that the pipe was placed in the highway by the defendant. And even if it be conceded that the averments in regard to the use of the pipe and of the fact that it is appurtenant to the house, are well pleaded and therefore admitted by the demurrer, we are unable to see how the plaintiff's case is benefited thereby. In the case just cited the sidewalk was in the same sense used with and appurtenant to the house, but in spite of this it was declared the plaintiff could not recover.

But there is another averment which it is supposed differentiates this case from Flynn v. Canton. It is this — that the pipe in question in addition to being in use with and appurtenant to the defendant's house, belongs to her. How it belongs to her, how she became the owner of a pipe located in the highway, is not alleged, but assuming that such an averment is sufficiently definite and precise to gratify the rules of good pleading, what does it amount to, when, as we are bound to do, we take it in connection with and subject to the other facts set forth in the narr? And when we consider the fact of ownership of a pipe located in a highway in some way and by some person unknown, we know of no decided case, nor indeed any principle of law, which would impose upon the defendant the duty of repair unless she has the right to do so. It is not even alleged that she has this right. On the contrary the averment in both counts that the alleged nuisance is in the highway excludes the existence of any such duty or right, unless imposed or conferred by statute, or in some other legal way. It would be, of course, the height of injustice to hold the defendant liable for the condition of the pipe over which she has no control. What we have here said, it is apparent, is not inconsistent with the cases like Murray v. McShane, 52 Md. 217, where it was held that the owner must keep his property in such condition as not to endanger the public use of an adjoining highway. The fact that the owner has control makes him and not the city liable in damages. In the case of Chapman v. Fylde Water-worksCo., L.R. 2 Q.B. (1894) 599, LORD ESHER said: "I will assume that the service pipe and the stop-cock in it, and the cover or guard by which it was protected were all of them the property of the householder. The question seems to me to be, who had the control of the apparatus so far as repairs were concerned. * * * The question is when the service pipe and apparatus connected therewith have been laid down, whether by the householder or the company, and the work has been completed by making the street good, who has any power to interfere with a public street for the purpose of doing anything to them afterwards? The mere fact of a person having property laid down under a street does not authorize him to interfere with the street. Assuming the apparatus to be the property of the householder, he has no power to break up the street unless an Act of Parliament had given him that power. * * * He has, therefore, no power to break up the street and consequently he cannot repair the apparatus. If so, it is idle to say that, because he has not done what he had no power to do, any person injured in consequence of its not being done can have an action against him." We have thus quoted at length the language of his Lordship because it is so pertinent to the facts in the case we have before us.

The question here presented having been so clearly and elaborately considered in the case of Flynn v. Canton, supra, we deem it unnecessary to support our conclusion by any other citation of authorities or by any further consideration of the subject.

We have not considered and do not base our opinion on the proposition that it was necessary that all the tort feasors should be joined in this suit.

Judgment affirmed.

(Decided April 1st, 1902.)