Cordish v. Bloom

• Decision Date: 01 March 1921
• Docket Number: 13,14.
• Citation: 113 A. 578,138 Md. 81
• Parties: CORDISH v. BLOOM. MAYOR AND CITY COUNCIL OF BALTIMORE v. SAME.
• Court: Maryland Court of Appeals

113 A. 578

CORDISH v. BLOOM.

MAYOR AND CITY COUNCIL OF BALTIMORE v. SAME.

138 Md. 81

Nos. 13, 14.

Court of Appeals of Maryland

March 1, 1921

Appeals from Superior Court, of Baltimore City; Morris A. Soper Judge.

Action by Samuel Bloom against Abraham Cordish, the Mayor and City Council of Baltimore, and another. From a judgment for plaintiff, the defendants named separately appeal. Affirmed.

Eugene O'Dunne, of Baltimore (Maurice M. Skolkin, of Baltimore on the brief), for appellant Cordish.

Edward F. Johnson, Asst. City Sol., of Baltimore (Roland R Marchant, City Sol., and A. Walter Kraus, Asst. City Sol., both of Baltimore, on the brief), for appellant Mayor and City Council of Baltimore.

Louis S. Ashman, of Baltimore (Philander B. Briscoe, of Baltimore, on the brief), for appellee.

BOYD C.J.

The appellee sued Abraham Cordish, Frank Schwartz, and the mayor and city council of Baltimore, for injuries alleged to have been sustained by him by reason of his falling on the sidewalk in front of the premises owned by Cordish and occupied by Schwartz, as tenant, known as No. 1022 E. Baltimore street. The jury rendered a verdict in favor of Schwartz, but against Cordish and the city for $4,000. Separate appeals were taken by Cordish and the city from a judgment entered on the verdict against them. Sixteen exceptions were taken to the rulings of the lower court on testimony, and the seventeenth bill of exceptions presents the rulings on the prayers, one of which was offered by the plaintiff as to the measure of damages and granted, the first, second, and third of the city were refused, and four were granted, and those of Cordish marked No. 4 and No. 5 were granted and No. 1-A, No. 3-A, No. 6-B, and No. 8-B were refused, the rejected prayers seeking to take the case from the jury either on the ground that there was no legally sufficient evidence to entitle the plaintiff to recover, or that there was contributory negligence.

There is a cellar under the building and an opening in the sidewalk. The opening is in front of a bay window, or show window, as one of the witnesses called it. There is what is spoken of as a frame for the iron door over the opening, which is part brick and part stone, and is about 4 feet long and about 3 feet wide. The iron door is a quarter of an inch thick, and is attached to the stone of the frame work by two knuckle hinges, so that it opens towards the building-up against the bay window. When the door is closed it overlaps the frame a few inches, and at the building line there is an opening of five-eighths of an inch between the frame and the cellar door, which gradually tapers to nothing at the end towards the curb of the sidewalk, being about one-eighth of an inch at a point halfway along the door. The top of the door at the building line is about 3 inches above the level of the pavement, and at the lower end about 2 1/4 inches. The sidewalk is paved with cement, and there is a curve of cement from the sidewalk level to the top of the frame, on the east side of it. The sidewalk is about 12 feet wide, leaving an unobstructed space between the framework of the cellarway and the curb of about 9 feet.

The plaintiff testified that he was walking westerly on Baltimore street on the way to his work, between half past 7 and 8 o'clock in the morning, that three or four young ladies were walking in a line, arm in arm, and he stepped out of their way to let them pass, when his right foot caught between the frame and the cellar door, that he tried to pull his foot out, fell over, and broke his leg. He said that before he was hurt the young ladies had passed him, and in reply to the question how far in front they were when he got to the cellar door he answered, "Two and a half or 3 feet; something like that." He also said that there were a great many people on the pavement at the time, and that he did not know that the cellar door was there, as he usually went to his work another way. He testified that he had on narrow pointed shoes, and "it caught me between the cellar door and the frame." He was asked how close he was to the building line when the tip of his shoe got caught in the opening, and replied, "About the middle of the door; I cannot tell exactly." He testified that there was an abrasion on the shoe, and his daughter confirmed him as to that. A witness produced by the plaintiff testified that there was quite a crowd walking along the street at the time of the accident, and he was behind the plaintiff and saw him fall; that "there was a stone where the cellar is, and he fell over that," and when asked, "You know what part of the cellar he fell on; did you see exactly how he dropped?" he answered, "He fell on to the cellar." A witness called by the defendant, Cordish, testified:

"He gave a sudden slip and fell, by his slip, he fell on his leg on the door of the cellar and he held out his hand to me and I picked him up."

When asked what caused him to fall, he said:

"Just a sudden slip, a sudden push; it was slippery; he fell on the door of the cellar."

There was thus some conflict in the testimony as to what caused him to fall, but that was, of course, for the jury, if the case was to be submitted to it, which is the most important question for us to decide. If he in fact fell as described by the witness for the defendant, referred to above, we would have no hesitancy in holding that the plaintiff could not recover, for we would not be willing to hold that there could be a recovery simply because there was a cellar door there in the sidewalk, which, being slippery that morning, caused the plaintiff to fall. No municipality nor abutting property owner could be held responsible for an injury thus caused without imposing a burden which would be unreasonable, and, if imposed, would prevent the use of parts of sidewalks for purposes which in cities and towns are practically essential to the proper and reasonable enjoyment of property abutting on public streets, and in large cities would require the abandonment of the use of important spaces under parts of sidewalks for cellar entrances, coal chutes, vaults, etc., which would result in serious losses and a waste of valuable space, which can be properly utilized without causing much, if any, inconvenience to the public. But if the accident was caused as the plaintiff claims, then another question is presented. While a municipality must generally respond in damages for injuries caused by its negligence, acts, or omissions, especially in connection with the public streets and sidewalks under its care and control, there must be a limit to such liability, and it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks. No city, town, or village could maintain a perfectly level or even surface in all of its sidewalks without burdening the property owners with unreasonable and unnecessary taxation. No resident or visitor of a city, town, or village has the right to expect such conditions. Pavements will in time become irregular and uneven from roots of trees, heavy rains and snows, or other causes. Steps, porches, areaways, entrances to cellars, coal chutes, and many other things have been and are still permitted on sidewalks in cities and towns, small and large, but there should be proper regulations, depending upon the location and the ordinary use of the various streets, and hence it is difficult, if not impossible for courts to announce rules and principles which can be made applicable to all cases involving alleged nuisances or negligence. The Court of Appeals said in Terry v. Perry, 199 N.Y. 79, 92 N.E. 91, 35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796:

"This court has frequently stated the rules of law governing municipalities in the care of their streets and sidewalks. Each case must stand upon its own peculiar facts, and the application of such well known rules of law to such facts."

Was then the lower court right in refusing to take this case from the jury? It was shown by the son of the defendant, Cordish, that a change had been made about 1911 in the entrance to the cellar, which formerly had two iron doors, instead of one, as now, and in answer to the question, "Who did the work?" The witness answered:

"It was done by the city at that time when they put those wires underground; the city paid 40 per cent. and we paid 60 per cent., and we got a receipt from the contractor when we made the payment."

He said the city inspectors were there, and he presumed that the work was done under their supervision, but was not certain about that. He also said that they closed up one half of the entrance, and covered the other half with one of the iron doors formerly used. He was asked, "You made the pavement wider?" and answered:

"Yes; made it wider; in fact they asked us to do it at that time; they had to put the wires underground."

There is no contradiction of his testimony, and therefore we find that the city had the work done, and paid a proportion of the costs, and we can have no doubt that it is not relieved from liability by reason of the Altvater Case and others following it. Without deeming it necessary to discuss them at length as is well known, there are two distinct lines of cases in this state in reference to the liability of Baltimore city. That is due to the unusual conditions there, where the board of police commissioners, who are state officers, and not the mayor and council have control of the police, and hence in Altvater v. Baltimore, 31 Md. 462, it was held that the city was not responsible for injuries sustained by a pedestrian on a street by being run down by a sled moving at a rapid rate, as it had no control over the police commissioners who had exclusive charge of the...