Mayor and Council of Hagerstown v. Hertzler

• Decision Date: 21 November 1934
• Docket Number: 22.
• Citation: 175 A. 447,167 Md. 518
• Parties: MAYOR AND COUNCIL OF HAGERSTOWN v. HERTZLER.
• Court: Maryland Court of Appeals

175 A. 447

167 Md. 518

MAYOR AND COUNCIL OF HAGERSTOWN v. HERTZLER.

No. 22.

Court of Appeals of Maryland

November 21, 1934

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Action by Harvey B. Hertzler against the Mayor and Council of Hagerstown, a corporation. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Ellsworth R. Roulette, of Hagerstown, for appellants.

John E Wagaman, of Hagerstown, for appellee.

BOND Chief Judge.

The appeal is from a judgment against the city of Hagerstown for loss by the plaintiff of the services of his wife, alleged to have been caused by her tripping over a guy wire supporting a small tree in a grass strip between a paved sidewalk and the curb along one of the city streets.

So much of the testimony describing the site refers to plats and a picture, none of which are before the court on appeal, that it cannot be restated with assurance of correctness in all details, but so far as can be seen the facts are these. Wilson boulevard was a wide highway not completed in its full length at the time of the accident. Where completed, as it was at the place of the accident, there was a concrete sidewalk four feet wide, bordered by a grass strip three feet six inches wide. On the north side of the boulevard, about thirty-three feet east of the corner of Pine street, two young trees were supported by guy wires, extending in the instance with which this case is concerned, from a point four or five feet up on the tree to a stake in the grass strip from six to ten feet from the tree trunk. There was testimony on behalf of the plaintiff that this tree had been so supported for about two months. Some of the witnesses had not noticed the wire in passing it. It was light wire, described by one witness as about the size of baling wire. It is not testified that the city had planted the tree, and it is to be inferred that it had not. At a distance of a hundred and fifty feet farther to the east, there was a space over which the concrete walk had not yet been laid. Mrs. Hertzler, on the night of October 21, 1932, walked west on the north side of the boulevard to call on a friend on Pine street, the intersecting street mentioned, to the west. Her testimony was that when she came to the section where no walk had been laid, she stepped out to the driveway and continued walking in the street until, having had her attention attracted by an automobile parked at the curb, she saw that there was a paved walk there, and turned to use it. This was where the tree was guyed up. As she stepped on the grass strip, she said she did not see the wire, and fell over it to her injury. There were lights nearby, but the wire could not be seen.

The principal question is that of the legal sufficiency of this evidence to prove negligence of the city in the performance of its duty to keep the highway safe for pedestrians. There is no question of the right of a municipality to set off part of the highway, such as a grass strip, for any restricted use it may decide upon, or for no use at all. These grass strips are common, their use for trees, telephone poles, fire plugs and other purposes equally common, and pedestrians must expect to encounter such customary objects in the strips and must look to themselves for their protection against injury from them. But must they expect and guard against wires supporting young trees?

Many cases have had to deal with similar questions. See review in a note, 59 A. L. R. 387. McDonald v. St. Paul,

82 Minn. 308 84 N.W. 1022, 83 Am. St. Rep. 428, a pedestrian tripped over a guy wire to a tree planted by an abutting owner at a street corner, and, in affirming a judgment against the city, the court remarked that if the accident had occurred beween block lines instead of at the street corner, the case against the city would not have been so clearly one for the jury. In the opinion of one member of that court, it clearly would not have been one for the jury. And see Corcoran v. New Haven, 108 Conn. 63, 142 A. 569. ...