Barnes v. Housing Authority of Baltimore City

• Decision Date: 20 March 1963
• Docket Number: No. 192,192
• Citation: 231 Md. 147,189 A.2d 100
• Parties: Maurice BARNES, Infant, etc., et al. v. HOUSING AUTHORITY OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

Page 147

231 Md. 147

189 A.2d 100

Maurice BARNES, Infant, etc., et al. v. HOUSING AUTHORITY OF BALTIMORE CITY.

No. 192.

Court of Appeals of Maryland.

March 20, 1963.

Leonard S. Bernstein, Baltimore, for appellants.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

MARBURY, Judge.

The appellants have appealed from a judgment entered upon a directed verdict for appellee at the close of the plaintiffs' case in the Superior Court of Baltimore City.

The infant appellant, Maurice Barnes, three years old at the time of the accident involved, lived with his parents in the Frederick Douglas Homes, a housing project which has been owned and operated by the Housing Authority of Baltimore City since its construction in 1941. The child's parents had lived in the apartment in which they lived at the time of the accident for eleven years, and had lived in the Douglas Homes for a total of twenty years.

On May 31, 1959, the child had gone with an older brother to a playground nearest to the building in which he resided with his parents. While returning alone from the playground, which is on the Douglas Homes property, he fell into a concrete window well or pit which was used by maintenance employees to gain access to a door leading to a crawl space under the building in which he lived.

This well was thirty-seven and one-half inches deep, four feet wide, extended two feet from the side of the building and had a ridge or coaming five and three-quarter inches wide and approximately four inches above the level of the ground. About eighteen inches from the well, and thus about three and one-half feet from the building, was a paved walkway leading to a trash can area, parking areas, and the playground. This walkway was of concrete, four feet wide. On the side away from the building, there was a wire fence along the walkway. On the side next to the well there was no protection of any kind. There was undisputed testimony that the well in question had been without any type of cover since it was originally constructed.

This action in tort was filed by the father of the child on behalf of the child and for himself to recover damages for injuries sustained in the fall.

On this appeal, appellants challenge the ruling of the court below in not allowing certain testimony into evidence and in withdrawing the case from the jury.

The evidence that appellants sought to introduce and which was not admitted by Judge Prendergast was of two categories: (1) condition of other access wells on the grounds of the apartment house project, and (2) evidence of subsequent improving of the pathway involved.

As to (1), appellants, by means of photographs, testimony, and answers to interrogatories, attempted to show that appellee used covers on all other concrete access wells in the development. The judge below refused to admit this evidence. We find the court below correct in this ruling. There was no evidence to show that the specific reason for covers on the other wells to prevent injuries. The relevancy of evidence of collateral facts as to similar conditions was involved in Ottenberg v. Ryan & Riley Co., 130 Md. 38, 99 A. 984. In that case, in an action for damages to the plaintiff's house due to the alleged negligent construction of a sewer, this Court held that a question asked a witness as to the condition of houses immediately next to plaintiff's on the same fill should not be allowed, as there might have been causes for their condition which did not apply to plaintiff's house. In Van Lill Co. v. Frederick City Packing Co., 155 Md. 303, 141 A. 898, an action brought against the defendant because of its refusal to accept canned corn sold to it, evidence that part of the rejected corn had also been rejected by a subsequent purchaser was inadmissible since it might have been rejected for reasons not connected with its quality. To the same effect, see Davison Chemical Co. v. Baugh Chemical Co., 134 Md. 24, 106 A. 269. The reasons why some of these concrete access wells were covered may have had nothing to do with safety whatsoever, and may have been due to many other reasons.

As to (2), the refusal of the trial judge to admit evidence by photographs showing that subsequent to the accident appellee paved the unpaved section next to the walkway, which included the area in which the infant appellant must have been when he fell into the well, the purpose of such evidence was to show that the child had a right to be where he was. The effect of the admission of the photographs would also have shown that a cover had been installed over the well. Such evidence would have been immaterial, because this action by the appellee could not affect its liability at the time of the accident. State for Use of Parr v. Board of County Com'rs of Prince George's County, 207 Md. 91, 113 A.2d 397, and cases cited therein. See also Stewart & Co. v. Harman, 108 Md. 446, 449, 70 A. 333, 20 L.R.A.,N.S., 228.

Appellan...