Hussey v. Ryan

• Decision Date: 15 January 1886
• Citation: Hussey v. Ryan, 2 A. 729, 64 Md. 426 (Md. 1886)
• Parties: HUSSEY v. RYAN.
• Court: Maryland Supreme Court

2 A. 729

64 Md. 426

HUSSEY v. RYAN.

Court of Appeals of Maryland

January 15, 1886

Appeal from circuit court, Baltimore county.

Wm. S. Keech, Jos. S. Heuisler, and C. W Heuisler, for appellant.

John J. Yellott and Millard F. Taylor, for appellee.

RITCHIE J.

The plaintiff's cause of action, on which he recovered below is thus set out in his amended narr: "For that he the defendant heretofore, to-wit, on the first day of February, 1884, at the city of Baltimore, was, and for a long time prior thereto had been, in possession of certain premises there situate, and, while so in possession, wrongfully and unjustly caused to be put and erected in and upon a certain public street and highway, there called 'West Pratt Street,' a high and long fence, to-wit, about twelve feet high and fifteen feet long, and connected therewith a certain wooden shed or structure, and wrongfully, negligently, and unjustly allowed and permitted said fence belonging and appurtenant to the premises aforesaid, so in possession of the defendant, and in and upon the said public street and highway, to-wit, West Pratt street, to become dilapidated and dangerous to persons rightfully passing on and along said public highway or street, and to remain in such dilapidated, unsafe, and dangerous condition for a long space of time, to-wit, from the said first day of February until the day of the institution of this suit; by means and in consequence of which said wrongful, negligent, unjust, and improper conduct of the said defendant the fence did, on the twentieth day of February, 1884, fall down upon, over, and across the said public street or highway, to-wit, West Pratt street, and Margie Ryan, the infant daughter of the plaintiff, then passing along and on said West Pratt street, on the way to the place of her employment, while in the exercise of reasonable caution and care on her part, was unavoidably crushed beneath the weight of the said falling fence and nuisance, and thereby cut, bruised, wounded, and permanently injured, whereby she became sick, sore, and disordered, and has so remained until the institution of this suit; whereby the plaintiff, during all that time, was deprived of the services and assistance of his said infant daughter, and was forced to lay out and expend a large sum of money in and about her care and nursing, to-wit, the sum of one hundred dollars, and has, during all that time, been deprived of her services and assistance; and other wrongs and injuries were inflicted upon the plaintiff by the wrongful, unjust, and negligent acts of the defendant hereinbefore alleged. And the plaintiff brings this his suit therefor, and claims one thousand dollars damages."

The proof clearly established the falling of the fence upon the child while near it, on the street designated, on the twentieth of February, 1884; that the fence was of the dimensions described and appurtenant to the lot, whose front it bounded as it ran along and with said highway; that the defendant had occupied said lot as a tenant,--a vacant one when he went upon it,--and had used it for the purposes of his business, and had erected the fence, or part of it, and the shed or stable which stood against it, at least six or eight years prior to the time of the accident; that he had surrendered possession of the lot to his landlord on the fourth of said month of February, and removed the stable about the same date, and also, after the accident, removed the fence still standing, and took it into his own possession.

The points of contention in the case were the extent of the injury to the child; the character of the fence as to soundness, and the effect upon its stability of removing the stable; whether its fall was or not solely due to the violence of the wind; the legal liability of the defendant in view of his surrender of the lot to his landlord prior to the day of the accident, and as to the measure of damages. In the consideration of the prayers on which the exceptions were based, we shall refer more in detail to the evidence to which they relate, and state our opinion of the law as applicable thereto.

The plaintiff's first prayer simply rests his right to recover on the finding by the jury, from the evidence, that the defendant was in occupation and possession of the lot situate on West Pratt street, a public thoroughfare of Baltimore city; that he erected the fence complained of in an insecure and unsafe manner, or permitted the same to be insecure and unsafe to persons passing along said street; and that the plaintiff's infant daughter, aged about 13 years, while passing along said street, the fence then being in an unsafe and insecure condition, fell upon and injured said infant daughter of the plaintiff, unless the jury shall further find that said fence, if in a good and safe condition at the time it fell, would have fallen from the violence of the wind testified to. The court granted this prayer, and also several instructions supplementary or explanatory thereof; the last one orally, during defendant's final argument to the jury, but reduced to writing at the defendant's instance,--all which instructions, with the prayer itself, defendant excepted to. The first of these added instructions is objectionable to appellant because directing the jury that, in awarding compensation for the loss of his daughter's services, they might consider how far the injury was permanent in its nature and might affect her ability to render services for the plaintiff to the period when she would arrive at the age of 21 years. The second instruction states it to be unnecessary to find the defendant was in possession of the lot at the time of the accident, or after the fourth of February. The oral instruction was, in effect, but the reassertion of the second, with the accompanying statement that the court, when granting plaintiff's first prayer, intended thereby to instruct the jury substantially as they are now instructed by the explanation of said prayer.

So far as defendant's exception to this last instruction rests upon its being voluntary, or an explanation of the prayer to which it relates, it is well settled that the court may give instructions of its own, or explain the effect of those granted at the instance of the parties, provided they are not inconsistent therewith. Such an interposition of the court is often...