City of Baltimore v. Walker

• Decision Date: 19 February 1904
• Citation: 57 A. 4,98 Md. 637
• Parties: MAYOR, ETC., OF BALTIMORE v. WALKER.
• Court: Maryland Court of Appeals

57 A. 4

98 Md. 637

MAYOR, ETC., OF BALTIMORE v. WALKER.

Court of Appeals of Maryland

February 19, 1904

Appeal from Baltimore City Court; J. Upshur Dennis, Judge.

Action by William Walker, by his next friend, against the mayor and city council of Baltimore. From a judgment for plaintiff defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE PAGE, SCHMUCKER, and JONES, JJ.

Albert C. Ritchie, for appellant.

C Hopewell Warner and Thomas Mackenzie, for appellee.

BRISCOE J.

This is a suit instituted by the appellee against the mayor and city council of Baltimore to recover damages for personal injuries received by him while walking on one of the public streets in the city of Baltimore, and alleged to have been occasioned by the negligence of the city in not maintaining one of its streets in proper repair. At the trial of the case there were four bills of exception reserved by the appellant. Three relate to the rulings upon the admissibility of evidence, and one to the rulings upon the players. The declaration contains two counts. The first alleges that the defendant is an incorporated city, and is bound to keep its streets in repair; that one of its streets, called "St Paul Street," was negligently suffered to be out of repair, whereby the plaintiff, in traveling on this street, and using due care, was hurt. The second count alleges: "For that the defendant is an incorporated city, and, as such, owns and controls the waterworks and system whereby water is distributed throughout the city; that, as part of the system, a water cock was placed in the foot pavement of St. Paul street, a public highway in the city of Baltimore, and used by the city in cutting off, whenever it should be necessary to do so, the water served to premises known as 325 St. Paul street; that the water cock was placed about six inches inside of the curb line of the pavement, and was negligently suffered by the defendant to extend about three or four inches above the footway, so that it obstructed and interfered with the free and unobstructed use by the public of the highway; that on the night of the 24th of November, 1900, the plaintiff, while passing along the highway and over the pavement, without the knowledge of the existence of the water cock, and which (it being nighttime) he neither saw, nor was able to see, though using ordinary care, the foot of the plaintiff came into contact with the water cock, and he was thrown violently to the ground, striking his head with great force against the pavement, in consequence of which he became unconscious, and so remained for a long time, and besides, in falling, struck and severely injured his neck, left leg, and knee, and received other injuries, whereby he suffered great pain, and has been, besides, permanently injured and rendered unable to earn his livelihood, and the injuries were caused by the negligence of the defendant, as above set forth, and not by want of due care or caution on his part, or on the part of his lawful guardian, or Bernice Jones, his next friend, thereunto contributing." The material facts, as shown by the record, are as follows: The appellee, William Walker, a youth about 10 years of age, while walking along the sidewalk on St. Paul street, in the city of Baltimore, on the night of November 24, 1900, stumbled and fell over what is called a "water pipe or stop box," which projected about 2 or 3 inches above the pavement where the accident happened. The water pipe was located on the pavement at 325 St. Paul street, and was constructed by the city for the purpose of turning on and cutting off the water from the premises. The pavement is described as about 9 feet wide, but a portion of this space was covered by a doorstep, which left the footway at the place where the accident occurred about 4 1/2 feet wide. On the night of the accident the plaintiff was returning home alone, having gone with his grandmother to deliver some laundry, and was coming south, on St. Paul street, when he struck his foot against the water pipe, and was thrown violently to the ground, striking his head against the pavement, and sustained severe and permanent injuries. Robert M. Killmeyer, the only witness to the accident, testified that the night was dark and rainy, and, as he was returning home, he heard a boy hollo, and at the same time he saw him fall; having stumbled over the water pipe in front of 325 St. Paul street. He also testified that "he heard the boy hollo, and went and picked him up, and asked him if he had hurt himself and he said he had; he had hurt his head; that he had stumbled over the water pipe. I picked him up and carried him home, and...