Conrad v. City of Takoma Park

• Decision Date: 02 December 1955
• Docket Number: No. 35,35
• Citation: 118 A.2d 497,208 Md. 363
• Parties: John CONRAD, etc., et al. v. CITY OF TAKOMA PARK and Washington Suburban Sanitary Commission et al.
• Court: Maryland Court of Appeals

Page 363

208 Md. 363

118 A.2d 497

John CONRAD, etc., et al. v. CITY OF TAKOMA PARK and Washington Suburban Sanitary Commission et al.

No. 35.

Court of Appeals of Maryland.

Dec. 2, 1955.

John R. Reeves, Bethesda, for appellants.

Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett & Powers and Lansdale G. Sasscer, Upper Marlboro, on the brief), for Pasquale M. Marinelli, and others.

Vincent L. Gingerich, Takoma Park, for City of Takoma Park.

B. Houston McCeney, Silver Spring (Nicholas Orem, Jr., Washington, D. C., on the brief), for Washington Sub. San. Comms.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a judgment for the appellees, entered after the trial court sustained demurrers to an amended declaration without leave to amend. The declaration first set out the general duty of the city and the Sanitary Commission, and their contractors and agents, to keep the streets and installations therein reasonably safe for the use of the public, and to exercise due care in the excavation of any openings in the streets. While not expressly stated, it may perhaps be inferred that a contractor and subcontractor had been employed by the Sanitary Commission to install or repair a water main in the public street, and that an excavation had been made for that purpose.

The declaration then recites that the defendants 'wrongfully and negligently placed and suffered and permitted to be maintained, on a windy day, upon the public highways known as Larch Avenue and Heywood Avenue in the City of Takoma Park, Maryland, open flames; that the said open flames were so wrongfully and negligently placed and suffered and permitted to be maintained upon the public highway aforesaid by the defendants, and each of them, and by their and each of their agents, servants and employees, in such manner as to create and constitute a dangerous and hazardous condition from the fire of such open flame upon the public highway as aforesaid; that such open flames were wrongfully, negligently and carelessly placed and suffered and permitted to be maintained upon the public highway aforesaid by the defendants and each of them, and by their and each of their agents, servants and employees, in the daylight hours, well knowing that children of tender years and other persons passed upon and across the public highway, in and about the vicinity of the said open flames and that such open flame, so located as aforesaid, created and constituted a condition in the said public highway that was a dangerous and unsafe condition for persons then and there lawfully using the said highway.

'And on the day and year aforesaid [September 17, 1953], at or about 3:45 p. m. at the intersection of Larch Avenue and Heywood Avenue in the City of Takoma Park, Maryland, the plaintiff, John Conrad, an infant of six years of age, conducting himself in a careful and prudent manner, while passing near the open flame aforesaid, and upon the public highway, and as a result of the negligence and carelessness of the defendants and each of them, and of their and each of their agents, servants and employees, in creating and maintaining the dangerous and hazardous condition aforesaid upon the said public highway, was burned by the said open flame * * *.'

Stripped of redundancies, the allegation is simply that the defendants wrongfully and negligently placed open flames upon the highway in such manner as to constitute a dangerous and hazardous condition from the fire of the open flames, and that the plaintiff, conducting himself in a prudent and careful manner, passed so close to one of the open flames that he was burned. The declaration does not inform us of the type of inflammable material or containers, nor does it rely on any defects therein or negligence in the selection of a particular type. Presumably the containers were kerosene flare-pots of the type in common use, and they presented no latent danger, but only the patent danger of any open flame to a person approaching it too closely on a windy day. The declaration does not inform us of the manner in which the containers were placed. Presumably they were placed around the excavation and their contents ignited to warn persons using the street of the excavation. In the absence of any statute or ordinance forbidding the use of open flames for this purpose, it can hardly be maintained that such a use would be negligence per se.

The appellants contend, however, that the declaration is sufficient in that it sets forth the duty owed by the defendants to passersby and alleges a negligent breach of that duty, with resultant injury, and an absence of contributory negligence. But the duty alleged was simply the general duty to keep the streets reasonably safe for the use of all persons. If it were not negligence per se for the defendants to place an open flame upon the highway for warning purposes, it would seem that there was no...