City of Hagerstown v. Foltz

• Decision Date: 19 June 1918
• Docket Number: 11.
• Citation: 104 A. 267,133 Md. 52
• Parties: MAYOR AND CITY COUNCIL OF HAGERSTOWN v. FOLTZ.
• Court: Maryland Court of Appeals

104 A. 267

133 Md. 52

MAYOR AND CITY COUNCIL OF HAGERSTOWN v. FOLTZ.

No. 11.

Court of Appeals of Maryland

June 19, 1918

Appeal from Circuit Court, Frederick County; Glenn H. Worthington and Edward C. Peter, Judges.

Action by Stella Blanche Foltz, by her father and next friend, Ceits R. Foltz, against the Mayor and City Council of Hagerstown. Judgment for plaintiff, and defendant appeals. Reversed without a new trial.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Alex. R. Hagner, of Hagerstown (Jacob Rohrback, of Frederick, and J. A. Mason, of Hagerstown, on the brief), for appellant.

Omer T Kaylor and Frank G. Wagaman, both of Hagerstown, for appellee.

PATTISON J.

The infant appellee, Stella Blanche Foltz, by Ceits R. Foltz, her father and next friend, recovered judgment in the lower court against the mayor and council of Hagerstown for personal injuries received by her in the manner hereinafter stated in the declaration. The declaration contained three counts. A demurrer was sustained to each and all of them, but the second count was amended, under leave of the court, and a demurrer filed thereto was overruled.

This amended count of the declaration alleged that the defendant pursuant to its charter rights and powers, passed an ordinance prior to the happening of the injuries complained of, and which was then in force, making it unlawful for any person to obstruct in any way any street, highway, lane, alley, crossing, or sidewalk of Hagerstown; that for a long time prior to, and at the time of, the injuries complained of, a certain obstruction, to wit, a large table, was placed on the sidewalk of said town, at or near the intersection of South Potomac and Antietam streets, and the defendant,

"although it had notice of the violation of the provisions of the ordinance aforesaid, negligently, carelessly, and wrongfully took no measures whatever to enforce the provisions of said ordinance, and negligently, carelessly, and wrongfully permitted said obstruction to remain at the place aforesaid, and in consequence thereof the said obstruction was at the place aforesaid on the said sidewalk at the time of the injuries hereinafter alleged; that it was lawful for automobiles to turn around in the street opposite the said obstruction, and that by reason of the contour of said street and curb at said place that the defendant knew, or by the exercise of reasonable care should have foreseen, that automobiles turning at said point were likely to pass from said street onto the sidewalk; that on or about the 10th day of April, A. D. 1916, the said Stella Blanche Foltz was lawfully passing on and along the sidewalk of said Hagerstown, near the obstruction aforesaid, at the intersection of the streets aforesaid, and that an automobile was then and there being turned in said street, and was then and there backed upon the sidewalk opposite said obstruction, and that the body of the said infant was caught between the said automobile and said obstruction, and the said infant was by the obstruction aforesaid greatly torn, mangled, and bruised, and caused to suffer great bodily and mental pain and anguish, and great and permanent injuries, and that said injuries were so received by the said infant as a direct and immediate consequence of the aforesaid negligence of the defendant in the premises."

The amendment to the second count consists of the italicized words appearing in the above amended declaration. The evidence discloses that the table mentioned in the declaration was upon the sidewalk in front of the grocery store of Ernest Miller, at the southwest corner of Potomac and Antietam streets, in said town, where it had been for a number of years prior to the happening of the accident. This table, used by Mr. Miller in placing thereon flower bulbs, vegetables, and other articles that were offered and exhibited by him for sale, was 12 feet in length, 2 1/2 feet in width, and 1 foot and 9 inches in height, and sat against the front wall of the store building, below the show window of the store, the sill of which came within a few inches of the top of the table, in an angle caused by the projection of a stoop or steps out from said building upon the sidewalk, extending to a point beyond the width of said table; the height of the stoop or steps being about the same as that of the table. The sidewalk in front of the store, at the point where the table was located, was 10 1/2 feet in width; that is to say, the distance from the front wall of the store building to the curbstone was 10 1/2 feet, and the distance from the eastward or outer side of the table to the curbstone was 8 feet.

On the afternoon or evening of the accident, the infant plaintiff at that time 5 years of age, had gone with her mother to the store of Mr. Miller. The mother had made her purchase, and had left the store, and had turned to the right upon the sidewalk, with the infant plaintiff to her left, she being between the front wall of the store building and her infant daughter, and while so walking upon the sidewalk, with the infant plaintiff's right hand in her left hand, the automobile, owned by Clap and driven by one Kreitz, backed against and over the curb upon the sidewalk, and in some way, not very definitely stated in the testimony, caught the infant plaintiff between the rear part of the automobile and the table, inflicting the personal injuries complained of. The mother, as she testified, did not observe the automobile until it was practically upon them, although at such time she had made only a few steps from the door of the store, which was upon the corner of the streets, and in making her exit through that door, and in turning to the right on South Potomac street, she faced that street at the point where the automobile was being turned. The evidence is not clear as to what part of the machine struck the table, but from the character of the break in the table, as described by the witnesses, it is most probable that it was the rear end of one of the rear springs of the automobile, and that the child was between the springs, and was struck by some part of the machine which did not extend so far to the rear as the rear ends of its springs. It is evident that the child was not caught between the table and that part of the automobile which...