East Coast Freight Lines, Inc. v. Consolidated Gas, Elec. Light & Power Co. of Baltimore

• Decision Date: 13 December 1946
• Docket Number: 36.
• Citation: 50 A.2d 246,187 Md. 385
• Parties: EAST COAST FREIGHT LINES, Inc., v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

50 A.2d 246

187 Md. 385

EAST COAST FREIGHT LINES, Inc., v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

No. 36.

Court of Appeals of Maryland

December 13, 1946

Appeals from Superior Court of Baltimore City.

Appeal from Baltimore City Court; Joseph Sherbow, Judge.

Separate actions by the widow and children of one Lewis, by the widow and children of one Gretsinger, by one Willis and by one Gillikin against the East Coast Freight Lines, Inc., for death and injuries sustained in automobile collision, wherein defendant filed a third party complaint in each case to make the mayor and city council of Baltimore and the Consolidated Gas, Electric Light and Power Company of Baltimore defendants. From judgments for costs in favor of Consolidated Gas, Electric Light and Power Company of Baltimore, entered upon sustaining demurrers to the third party complaint defendant appeals, and the appeals were consolidated by agreement.

Affirmed.

Wendell D. Allen and Francis B. Burch, both of Baltimore, for appellant.

William Baxter and William T. Taymans, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON, JJ.

MARBURY, Chief Judge.

Appellant defendant in four damage cases arising out of a collision between two motor vehicles, appeals from a judgment for costs entered in each case in favor of the appellee, a proposed third party defendant. One of the suits was brought in the Baltimore City Court and the other three were brought in the Superior Court of Baltimore City, all against the appellant alone. The appellant, after leave granted, filed a third party complaint in each case to make the Mayor and City Council of Baltimore, hereinafter called the City, and the appellee, hereinafter called the Gas Company, third party defendants. Both of these third party defendants demurred to the complaint in each case. The demurrers of the City were overruled and it did not appeal. The demurrers of the Gas Company were sustained without leave to amend (one amendment had already been made) and judgments were entered in favor of the Gas Company for costs. The cases were separately appealed, but consolidated by agreement, and were heard together here, as the same questions were involved in all of them.

It appears from the record that on July 27, 1945, about one A.M., on a dark and rainy night, a tractor-trailer, owned and operated by a certain Schoblocher and leased by the appellant, was proceeding in an easterly direction on Wilkens Avenue, a public highway of the City of Baltimore, and approaching the intersection of that Avenue with Brunswick Street. At that intersection Wilkens Avenue ceases to be macadam or concrete across the entire width and begins to be divided by a six-foot grass plot placed in the middle of the highway and extending eastward for many blocks. Starting about three feet east from the west end of the grass plot is a line of 15 foot poles on which are electric lights. These poles are in the center of the grass plot. The light on the one nearest the west end was not lighted. Another tractor-trailer, owned by Willis and operated by a man named Lewis, was proceeding westerly along Wilkens Avenue, approaching the intersection. Upon reaching the grass plot the left front wheel of Schoblocher's tractor hit the curbing around the plot. The tractor turned to its left, struck the lamp post, continued to its left over to the west bound lane of Wilkens Avenue, and collided with the Lewis tractor. A fire resulted. Schoblocher and a man named Gretsinger, who was riding with him, were killed, Lewis died as a result of the accident, and a man named Gillikin, who was riding with Lewis was injured. The suits were brought by the widow and children of Lewis, by the widow and children of Gretsinger, by Willis for property damage to his truck, and by Gillikin for personal injuries. The question before us is whether the Gas Company is required to answer the allegations of the identical third party complaints filed against it in each of these cases. The answer to that question depends upon whether any actionable negligence is charged against the Gas Company.

Negligence 'Necessarily involves the breach of some duty owed by the defendant to the plaintiff * * *'. Holler v. Lowery, 175 Md. 149, at page 158, 200 A. 353, at page 357. The question before us, therefore, resolves itself into a consideration whether, under the facts and circumstances alleged in the third party complaints, the Gas Company owed any duty to the traveling public such as the original plaintiffs in these cases and the appellant, or others in like situation, and if it did, whether the allegations support a claim that it failed in the performance of that duty, and that such failure was the proximate cause of the accident involved in this case. As was said by this Court, speaking through Chief Judge McSherry, in the case of West Virginia Central & P. R. Co. v. Fuller, 96 Md. 652, at page 666, 54 A. 669, at page 671, 61 L.R.A. 574, 'Of course there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. This has been so often stated that it is not deemed necessary to elaborate it.' See also Birckhead v. Baltimore, 174 Md. 32, 197 A. 615.

The third party complaints describe the accident as follows: 'Shortly before the actual impact of the vehicles, the left front wheel of Schoblocher's tractor hit the elevated curbing of a grass plot about six feet wide, more or less, located in the middle of Wilkens Avenue, the physical layout of the grass plot being hereinafter more fully described, and Schoblocher's tractor thereupon turned to its left and a part of his tractor-trailer struck a metal lamp post in the middle of and near the west end of the grass plot and proceeded diagonally to its left in and upon and then partially over and to the left of the grass plot, and into and upon the westbound lane of Wilkens Avenue, and there collided with the oncoming tractor and trailer operated in a westerly direction by Lewis.' It is urged by the appellee that this allegation not only does not show that the presence of the lamp post was the proximate cause of the accident, but on the contrary, indicates that the striking of the elevated curbing was such cause, because this is what deflected the Schoblocher tractor and caused it to turn to its left. A number of cases are cited for this conclusion, including County Commissioners v. Collison, 122 Md. 91, 89 A. 325; Birckhead v. Baltimore, supra; Hagerstown v. Foltz, 133 Md. 52, 104 A. 267, and Parsons v. C. & P. Tel. Co., 181 Md. 502, 30 A.2d 788. In the last case an operator of an automobile collided with a telephone pole along the State highway. The Telephone Company was sued, its demurrer to the declaration was sustained, and this action was affirmed by this Court. In the declaration in that case it was stated that the Telephone Company maintained its pole on the side of the road within a few feet of the travelled portion and in a ditch, and that the plaintiff's automobile went off the travelled road and down the abrupt side of the ditch, which guided the automobile into the pole.

This Court said that it was apparent that this condition of the highway was an independent factor which intervened as a superceding cause of the injuries complained of. We found that the direct and proximate cause of the injuries sustained was not the position of the pole, but was the condition of the ditch and roadside. That case is very closely analogous to the one before us.

In this oral argument counsel for appellant said that it was intended to allege (and he thought it was sufficiently alleged) that striking the pole further deflected the tractor-trailer to the left and caused the operator to lose control of it. And that this was the proximate cause of the accident. He asked, if the allegations were held insufficient to show that the pole was the proximate cause of the accident, that the Court would give appellant the opportunity to further amend its complaint to correct this defect if it existed. But we pass this request for the moment to consider the basis of the duty claimed to be owed by the appellee.

The complaint, after reciting that the City maintained a series of electric light poles about 15 feet high and about 130 feet apart in the center grass plot, one of them being about three feet from the west end thereof, and making the allegation that the City negligently failed to mark the beginning of the west end of the grass plot and the lamp post with warning signs, shields, lights, barriers and other devices or safeguards to warn eastbound traffic, and after reciting the inadequacy of the lights at the top of the poles to illuminate the hazards there existing and to give proper and sufficient notice, and after further alleging that at the time of the accident and for a number of hours prior thereto the City failed to maintain the electric lights and suffered them to remain out, stated the case against the Gas Company in the following words: 'The Gas and Electric Company, by contract with the City, had undertaken for years before the time of the accident complained of to furnish electric current for said lights and to furnish inspectors to inpect the lights and to maintain the said electric lights and their appurtenances and to make necessary repairs and replacements from time to time, and to...