Myszkiewicz v. Lord Baltimore Filling Stations, Inc.

• Citation: 178 A. 856,168 Md. 642
• Decision Date: 22 May 1935
• Docket Number: 5.
• Parties: MYSZKIEWICZ ET AL. v. LORD BALTIMORE FILLING STATIONS, INC.
• Court: Court of Appeals of Maryland

178 A. 856

168 Md. 642

MYSZKIEWICZ ET AL. v. LORD BALTIMORE FILLING STATIONS, INC.

No. 5.

Court of Appeals of Maryland

May 22, 1935

Appeals from Baltimore City Court; Samuel K. Dennis, Judge.

Consolidated actions by Rose Myszkiewicz and John P. Myszkiewicz against the Lord Baltimore Filling Stations, Inc. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Nathan J. Felsenberg and Robert R. Carman, both of Baltimore (Keech Carman, Tucker & Anderson and Clagett Bowie, all of Baltimore, on the brief), for appellants.

Everett L. Buckmaster and Harry J. Green, both of Baltimore (Weinberg & Sweeten and Edwin H. Brownley, all of Baltimore, on the brief), for appellee.

PARKE Judge.

The action on this record was brought for damages sustained by the plaintiff Rose Myszkiewicz in slipping and falling on a concrete paved way on the property of the defendant, where it operated a filling station which it had constructed in the angles formed by the intersection of the converging building lines of Boston and Fleet streets with the transverse building line of Chester street. The pavements of Boston and Chester streets were 12 feet and 10 inches wide and that of Fleet street was 11 feet and 8 inches. None of the structures of the defendant extended beyond the building lines of its property. The building of the defendant was on the south side of the lot and stood back a short distance from a slightly elevated concrete block whose front curb extended from the building lines of Boston and Fleet streets and formed the southern boundary of a concrete way, running east and west between these streets a few feet in front of this building and on either side of its doorway, were, at the edge of the curb, the pumps for gasoline and the containers for the oils and grease sold to the owners of the motor vehicles who used this way to get the tanks of their vehicles filled from these sources of supply. To the right or east of the doorway were five containers of oil or grease, and a gasoline pump, and to the left or west of the doorway were four containers for oil and grease and one tank for gasoline. Extending southward from the building line on Chester street and parallel with Fleet street the defendant had constructed a concrete block 20 feet long, 3 feet wide, and 1 foot high on which were erected three gasoline pumps and two electric light fixtures. In front of these last-mentioned fixtures the curb had been removed for practically the whole length of the pavement along Chester street and the pavement for a width of about 3 feet had been gradually sloped to the level of Chester street. The access to the openings of the way between Boston and Fleet streets was by similar slopes from the surface of the street. The entire space, including the sidewalks and the property of the defendant, was covered with an even surface of concrete, except where occupied by the filling station and fixtures, which have been previously described. The effect of these entrances from the three streets was to leave the width and level of the sidewalks unaffected, except that at every one of these three openings a strip 3 feet in width was converted into a gradual decline which sloped from the level of the pavement to the surface of the street. Although there was sufficient width of street pavement along every one of the three streets named for the pedestrian, it had become a practice for travelers on foot, who desired to go from Fleet street to Boston street, not to go on the public ways or pavements along Fleet street to Chester street, and thence to Boston street, but to turn instead to the left at the northeast corner of the building of the defendant and walk westwardly to Boston street upon the concrete way used by the customers of the defendant for the purposes of obtaining gasoline and oil and other supplies for automobiles and trucks. There is no evidence that the defendant objected to this practice or made any effort to stop it. The interference of the use of the sidewalk by the obstruction afforded by motor vehicles being driven in and out of the premises of the defendant was contributory to the practice as was the incentive to shorten the walk. The latter motive originated with the traveler, but the first was an incident to the enjoyment of a municipal license to the defendant and there being no evidence of an abuse of the privilege, the use did not constitute a nuisance and the occupier of the property cannot be said to have incurred any legal liability by the transient obstruction of travel along the sidewalk by its customers. By suffering the travelers on foot habitually to walk in a definite course over its property in...