Murray v. McShane

• Decision Date: 20 June 1879
• Citation: 52 Md. 217
• Parties: PATRICK MURRAY v. JOHN McSHANE and Henry McShane.
• Court: Maryland Court of Appeals

52 Md. 217

PATRICK MURRAY v. JOHN McSHANE and Henry McShane.

Court of Appeals of Maryland

June 20, 1879

Appeal from the Court of Common Pleas of Baltimore City.

This action was brought by the appellant against the appellees and at the conclusion of a jury trial, the narr. was amended to appear as follows:

For that the said defendants, at the time of happening of the grievance hereinafter complained of, and for a long time previously thereto, were possessed of certain fixed property situate in the City of Baltimore aforesaid, to wit: a messuage fronting on a public street in the said city generally known as "Hillen street," therein; and being so possessed thereof, they suffered and permitted the front wall thereof, bordering on and adjoining the said street, to become and be greatly dilapidated and out of repair, so that the same became and was a source of peril to all persons lawfully passing upon and using the said street for a long time before the date aforesaid, as well as then and afterwards, to wit, on the 18th of March, 1878, the plaintiff was greatly injured and hurt, by reason of the falling of a brick out of the said wall and upon his head, he being then and there temporarily, and for a necessary purpose of bodily convenience, seated within the doorway of the said house, and upon the sill of said door, the said sill constituting a step leading into said house from the aforesaid public highway, with his head projecting beyond the line of the wall of the aforesaid house, in the position which might and could have been occupied by that of a passer-by, and upon the said street, lawfully using the same for purposes of travel, and not having remained in the said posture an unreasonable time, nor in anywise molested or interfered with the inhabitants of the said house, nor been directed or warned to depart therefrom. Whereby, to wit: by reason of the falling of the said brick upon his head, the plaintiff has been permanently injured, and rendered unfit to earn his livelihood by labor, and has been put to great expense in and about endeavoring to be cured of his said injuries, and was for a long space of time hindered and prevented from attending to his lawful affairs, and suffered great pain of body and anxiety of mind. And the said plaintiff expressly avers, that his said injury was caused solely by the dilapidated and ruinous state of the wall aforesaid, so as aforesaid allowed and permitted by the said defendants, improperly and contrary to their duty in the premises, and by reason of no other matter or thing whatsoever, and especially by reason of no fault or negligence on his, the said plaintiff's, part, thereunto contributing; and the plaintiff claims $10,000.

The narr. as originally drawn contained in lieu of the averment, beginning "he being then and there temporarily," the statement, "he being then and there lawfully in front of the wall aforesaid." The proof on the part of the plaintiff showed that he had seated himself upon the sill of the door leading into the defendants' house on Hillen street (there being no projecting steps) for the purpose of adjusting his shoe, and almost immediately after assuming this posture, and while leaning forward, with his head projecting beyond the front line of the wall, he was struck by the brick which inflicted the injury. The defendants' counsel, all the evidence for both sides being in, claimed that a variance was caused by the word "lawfully," applied to a person whom they charged to be technically a trespasser. The court was inclined to sustain this position, and the plaintiff amended his narr. so as to contain a full statement of the facts developed by his evidence upon this point.

To the amended narr. the defendants demurred. The court sustained the demurrer and judgment was entered for the defendants. The plaintiff appealed.

The cause was argued before BARTOL, C.J., BOWIE, MILLER and ALVEY, JJ.

W. Hall Harris and Charles J. Bonaparte, for the appellant.

The only question presented by this record is whether a sufferer from a nuisance adjoining a public highway, negligently or designedly continued there by the defendants, is debarred from recovering for his injury, by the naked fact that at the time of the accident a part of his person was upon their premises. It is submitted that a negative answer must be given upon every principle of law, reason and humanity.

A trespasser may be ejected forcibly from the premises upon which he intrudes, or sued for his entry, but the ground-owner is not legibus solutus with regard to him. On the contrary, for any illegal act from which he suffers, (even for any excess of violence beyond what is strictly necessary for his removal,) the trespasser can recover as fully as though he were innocent. Johnson v. Patterson, 14 Conn. 1; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 C. B. 392; Loomis v. Terry, 17 Wend. 496; Brown v. Lynn, 31 Pa. St. 510; Daley v. R. R. Co., 26 Conn. 591; Birge v. Gardiner, 19 Conn. 507; R. R. Co. v. Mulligan, 45 Md. 486; Corby v. Hill, 93 E. C. L. 568, and cases cited in note; R. R. Co. v. Stout, 17 Wall. 660, 661; Beck v. Carter, 68 N.Y. 289, 292, 293; Norris v. Litchfield, 35 N.H. 277, 278; Townsend v. Wathen, 9 East, 277.

Unquestionably this nuisance was continued by the defendants "improperly and contrary to their duty," and their continuance of it was an illegal act. Barnes v. Ward, 9 C. B. 420, 421; Wharton on Neg. sec. 346.

And since the plaintiff has been greatly damaged in consequence of this illegal act, and "by reason of no other matter or thing whatsoever," his right to recover for this injury would seem to be clear even if the narr. showed him to have been a trespasser. Owings v. Jones, 9 Md. 108; R. R. Co. v. Mulligan, 45 Md. 486; R. R. Co. v. Boteler, 38 Md. 568.

But he was not a trespasser, even technically. It would surely be monstrous to hold that one using the public highway in front of a wall which has been suffered to become a man-trap, would be disentitled to recover for an injury occasioned by this grave breach of legal duty, because he happened to have his hand or foot, or an end of his garment within the building line of the defendants; and this plaintiff's case is, upon the demurrer's admissions, to the full as meritorious as any of those supposed.

The demurrer was sustained by the court below mainly on the authority of the dicta in Maenner v. Carroll, 46 Md. 213, (the decision was conceded to be distinguishable,) where this court says: "Any individual who complains of the manner in which a defendant may have used his own land, should show with certainty and precision both the right of the plaintiff, and the duty of the defendant, and in what manner such right and duty have been violated." And again, "having no right to be on the lot, the injury which the plaintiff suffered must be attributed exclusively to his own fault." Neither the letter nor the spirit of this language applies to the present case. The duty of the defendant, the violation of which is complained of, was the duty to "take care that" their "fixed property" should be "so used and managed that other persons shall not be injured." (30 Md. 205.) The right of the plaintiff, was the right of exemption from dangers arising from the neglect of this duty. The plaintiff's injury in this case cannot possibly "be attributed exclusively to his own fault," when the narr. avers and the demurrer admits that it "was caused especially by reason of no fault on his part." But without dwelling upon these verbal criticisms, it is submitted that the language of Maenner v. Carroll, supra, is to be construed with reference to the facts of that case, and cannot be invoked to sustain a doctrine at variance not only with the previous decisions of this court, Irwin v. Sprigg, 6 Gill, 200; R. R. Co. v. Mulligan, 45 Md. 568; but with the overwhelming weight of judicial authority upon the subject. The judgment of the court below should be reversed and the cause remanded, that the defendants may plead over to the amended narr.

Arthur Geo. Brown and John Carson, for the appellees.

The declaration fails to state a sufficient cause of action. It shows that the appellant was injured while he was trespassing on the property of the appellees. He was not a traveller, passing along Hillen street, but an intruder, who had seated himself uninvited "within the door-way of the said house, and upon the sill of said door, the said sill constituting a step leading into said house from the aforesaid public highway."

As this court remarked, in Maenner v. Carroll, 46 Md. 212, "To constitute a good cause of action, in a case of this nature, there should be stated a right on the part of the plaintiff, a duty on the part of the defendants in respect to that right, and a breach of that duty by the defendants, whereby the plaintiff has suffered injury. Here there is nothing of the sort shown."

After alleging that the wall of the appellees' house "was a source of peril to all persons lawfully passing upon and using the said street," which allegation is that of a public nuisance, giving of itself no private right, the declaration proceeds to show that the appellant was not passing or otherwise lawfully using the public street, but was injured when he was not upon the street at all, but while he was sitting on the door sill, i. e., upon and within the wall of the appellees' house.

There is no statement of a right, nor of a duty in respect of that right, nor of a breach of that duty. "There is no positive right alleged; and without such right the action cannot be maintained." Maenner v. Carroll, 46 Md. 217; Gantret v. Egerton, L. R., 2 C. P. 371; Sullivan v. Waters, 14 Irish Com. Law, 460.

The declaration is fatally defective in form and...