Leonard v. Lee

• Decision Date: 11 November 1948
• Docket Number: 12.
• Parties: LEONARD et al. v. LEE et al.
• Court: Maryland Court of Appeals

62 A.2d 259

191 Md. 426

LEONARD et al. v. LEE et al.

No. 12.

Court of Appeals of Maryland

November 11, 1948

Appeals from Circuit Court, Baltimore County; John B. Gontrum, Judge.

Suits by Elma W. Leonard and Charles B. Leonard against Julia S Lee and others for injuries sustained by first-named plaintiff in fall on sidewalk and for expenses and loss of services. Verdict and judgment in each suit in favor of defendants, and plaintiffs appeal.

Kenneth C. Proctor, of Towson, and Daniel B. Leonard, of Baltimore (Bowie, Burke & Leonard, of Baltimore, on the brief), for appellants.

Michael Paul Smith, of Baltimore (W. Albert Menchine, of Baltimore on the brief), for County Com'rs.

John Grason Turnbull, of Towson, for Julia S. Lee and others.

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

MARBURY Chief Judge.

On August 24, 1946, Mrs. Elma W. Leonard slipped on the sidewalk in front of 501-503 York Road, Towson, and injured herself. She sued the owner of the premises, the tenant and the County Commissioners of Baltimore County in the Circuit Court for Baltimore County. Her husband also brought suit for expenses and loss of services. The two suits were tried together. At the conclusion of the plaintiffs' testimony, the court granted demurrer prayers on behalf of the defendants in both cases, and also a contributory negligence prayer in Mrs. Leonard's case. As a result of the verdict for the defendants in both cases, judgments were entered in their favor for costs, from which the appeals are taken here.

York Road, where it runs through Towson, is a State Highway under the control of the State Roads Commission. The record does not disclose whether the sidewalk on which the accident occurred was within the right of way of the State Roads Commission, or whether it was within the property lines of the owners of numbers 501 and 503. There is no evidence of any dedication of the sidewalk by a plat or in any other way except by user by the public, and there is no evidence of any acceptance by the County Commissioners, who have charge of sidewalks in Baltimore County, unless that is to be inferred from general user by the public, and from the fact that, in the block below, there is one place where the County Commissioners reconstructed the sidewalk which the owner of the property paid for.

The portion of the sidewalk where the accident occurred was on the west side of the York Road, near the corner of Pennsylvania Avenue. At the northwest corner of these two streets is located the Adler Store which is number 501, and next to it, on the north, is the Dunleigh Store, which is number 503. These two stores have a common entrance to the street. Mrs. Leonard had been in the Dunleigh Store, cut diagonally across the entrance and as she took her first step from this entrance out on the sidewalk, she slipped and fell. She was carrying her infant son, and perhaps as a result of this, she was unable to catch herself, and fell on her right hip, which was broken. Dunleigh and Adler were sub-tenants of C. Maynard Wagner. They were not made party defendants, but Mr. Wagner was. When he rented the entire property in 1932 or 1933, he rebuilt the sidewalk along York Road. At that time the store on the properties was remodeled and extended to the building line, and a new entrance was put in. At the time this was done, a step, formerly there from the store to the street, was eliminated, but the record does not seem to indicate that there was any change in the grade of the sidewalk itself, at the time Mr. Wagner had it laid. The sidewalk slopes somewhat, following the contour of the street, both to the south and to the east. There is no evidence as to who built the sidewalk originally, nor is there evidence that the sidewalk was badly constructed in 1933 by Mr. Wagner. The testimony of Mr. Leonard, who was the only eyewitness to his wife's fall, was that he slid his foot along the sidewalk where she had fallen, and it was very slippery, and he noticed it was on an angle. The slippery spot, according to him, was about 18 inches in diameter. It was a clear dry day. The only evidence that the sidewalk became slippery through wear was Mr. Leonard's affirmative answer to a question asked on cross examination by counsel for Mr. Wagner that 'what caused your wife to fall was the worn smooth slippery spot on the pavement, is that right?' There was some evidence that Mr. Wagner had some time previously put two of his clerks out with a hatchet to nick the sidewalk, but that this did not improve the slippery condition. There was also evidence that in the course of the years, several people had fallen on the sidewalk, although none of them fell on the exact spot where Mrs. Leonard fell, and all of these falls but one were in wet weather. The sidewalk was made of cement. Except for the fact that it was smooth, there is no evidence that it was in any way different from the ordinary cement sidewalks on city streets.

As to the owner of the property, it seems to be well settled that the abutting owner is not liable to pedestrians for injuries resulting from his failure to keep in repair a public sidewalk which he had not constructed. Canton Co. v. Seal, 144 Md. 174, 125 A. 63; Citizens Savings Bank v. Covington, 174 Md. 633, 199 A. 849. Nor is he liable for a failure to keep the walk clear, even where a statute or ordinance requires that the pavement be kept free of snow and ice. The duty is owed to the authorities and not to the private individual who happens to slip. Flynn v. Canton Co., 40 Md. 312, 17 Am.Rep. 603. Compare East Coast Freight Lines v. Consolidated Gas etc. Co., Md., 50 A.2d 246. As to the tenant, he is not liable unless his construction was faulty, and we can find nothing in this record to indicate that the slippery sidewalk was due to such construction. The question of primary importance is whether there is sufficient evidence of negligence on the part of the defendant County Commissioners to justify the submission of the cases against them to a jury.

Unless there is some duty owed by the Commissioners to the public and to the plaintiffs as part of the public, there is no negligence, because negligence necessarily involves the breach of a duty. Holler v. Lowery, 175 Md. 149, 200 A. 353; East Coast Freight Lines v. Consolidated Gas etc. Co., Md., 50 A.2d 246. The duty owed by a municipal corporation to those lawfully using the sidewalks under its control is not that of an insurer of their safe passage. Where there are dangerous obstructions or depressions of which the municipal authorities have actual notice or which have existed long enough to give constructive notice, a municipality is liable if a person is injured because of such condition. It is obvious that each case is different and, therefore, each case must stand upon its own particular facts, but this Court has differentiated between conditions which will render the municipality liable, and those which are the necessary concomitant of use over a period of time. A pedestrian sued the abutting owner and the City of Baltimore for injuries sustained when he slipped on a sidewalk and broke his leg. The testimony was conflicting, and the Court said it was a case for the jury, because in one aspect of the case the plaintiff was entitled to recover, and in another he was not. There was an iron door over an opening in the sidewalk leading to a cellar. There was a frame for the iron door and, at the building line, there was a small opening between the frame and the cellar door. The pedestrian claimed that he caught his foot between the frame and the cellar door and thereby fell. A witness for the defendants said that it was slippery, and the cause of the fall was a sudden slip. This Court said, '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...