Citizens Sav. Bank of Baltimore v. Covington
Decision Date | 14 June 1938 |
Docket Number | 21. |
Citation | 199 A. 849,174 Md. 633 |
Parties | CITIZENS SAV. BANK OF BALTIMORE v. COVINGTON. |
Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; J. Abner Sayler, Judge.
Action by Georgia C. Covington against the Citizens Savings Bank of Baltimore for injuries sustained in falling on a sheet-iron trap door in a sidewalk. From a judgment for plaintiff defendant appeals.
Affirmed.
L Wethered Barroll, of Baltimore (S. Robert Levinson, Joseph Leiter, and W. Albert Menchine, all of Baltimore, on the brief), for appellee.
Argued before URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.
The Citizens Savings Bank building is located at the southwest corner of Baltimore and Eutaw Streets in Baltimore. In the sidewalk on Eutaw Street there is a sheet-iron door, which affords access to the cellar under the building. It is flush with the surface of the sidewalk, and is raised by an iron handle in the shape of an inverted U which is designed so as to fall of its own weight into place. On June 8, 1935, about eleven o'clock at night, the plaintiff, Georgia C. Covington when walking south on Eutaw Street, stepped on the cellar door where she fell sustaining injuries which disabled her for sometime. As she described the accident, She did not see the handle; she '* * * was looking straight ahead.' The charge in the declaration was '* * * that the said covering was negligently maintained by the defendant and was in a dangerous condition and unsafe and dangerous to pedestrians walking on said pavement, and that said dangerous condition was well known to said defendant but the same was not known to the plaintiff'. The evidence of the defendant was that the door had been opened but once in 1935--that was in September--and there was no evidence to the contrary. A Photographer, whose photograph of the door, with the handle up, was offered in evidence, said:
The photograph in the record, which was in evidence before the jury, shows that the handle when lifted and slightly tilted may be made a trap in which a pedestrian's foot may be caught, and thus a structural condition may exist for which the abutting property owner may be held to be negligent.
From this evidence, which is all there is of the accident and conditions there existing, the inference is that some meddler raised the handle and left it in such position as to make it dangerous to pedestrians. Under these circumstances the question is whether there is sufficient evidence of the Citizens Savings Bank's responsibility for the case to go to the jury.
The rule of the liability of an individual with respect to defects in a street as stated in Cooley on Torts, 4th Ed., sec. 452, is:
There is no question of the right of the defendant to maintain the sidewalk entrance to its cellar, but such a right never becomes prescriptive (Minor Privilege Cases, 131 Md. 600 619, 102 A. 1014), and the duty to keep it in condition reasonably safe for pedestrians is continuous, regardless of the question of notice. This is the difference between the public and private liability where the property owner enjoys privileges appurtenant to his property. To hold the public liable it must have had notice, actual or constructive, while in both instances all that is required of the plaintiff is due and ordinary care to avoid injury. Annapolis v. Stallings, 125 Md. 343, 93 A. 974; County Commissioners of Baltimore County v. Collins, 158 Md. 335, 148 A. 242; Mayor and City Council of Baltimore v. Grossfeld, Md., 195 A. 554; McFarlane v. Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1; Keating v. Boston, 206 Mass. 327, 92 N.E. 431, 19...
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