Pierce v. City of Baltimore

• Decision Date: 10 June 1959
• Docket Number: No. 277,277
• Citation: 220 Md. 286,151 A.2d 915
• Parties: Charles PIERCE v. CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 286

220 Md. 286

151 A.2d 915

Charles PIERCE v. CITY OF BALTIMORE.

No. 277.

Court of Appeals of Maryland.

June 10, 1959.

Henry J. Frankel, Baltimore, for appellant.

Jerome A. Dashner, Asst. City Sol., Baltimore (Hugo A. Ricciuti, City Sol., and F. Clifford Hane, Deputy City Sol., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Charles Pierce, the tort plaintiff, aggrieved when the trial court took from him the potential fruits of the jury's verdict against the Mayor and City Council of Baltimore, by granting a judgment notwithstanding the verdict on the ground of contributory negligence, appeals to us to reinstate the verdict.

One night near the end of October, 1957, on the way to cut the grass at the home of his shop foreman (he said it was desirable to cut grass at night because 'it is nice and tender then'), Pierce alighted from a bus at a duly designated stop at the northeast corner of Thirty-second Street and Harford Road. There is no sidewalk at that point on the east side of Harford Road, and Pierce, not wanting to walk in the bed of the heavily traveled thoroughfare, walked towards his destination along an unpaved strip of ground that parallels Harford Road from the bus stop to Erdman Ave. In the course of the trip, he caught his left foot under a metal plate covering a drain and fell. He said there was no light at the place where he fell; that he walked on the dirt strip because, at that point, one had to; and that although he had walked in that area once or twice before over a period of months, he had never noticed the drain or the plate. He testified also that almost everyone who gets off the bus where he did walks where he walked in order to get to another bus stop.

His description of the accident was that a square, solid, black steel plate was over the hole formed by the concrete sides that surrounded the drain; that the drain was close to a tree and behind it from the angle at which he approached the tree; and that as he passed to the right of the tree, the steel plate, which was raised seven or eight inches above the concrete walls of the drain, caught his foot. His exact words were: 'When I picked up my foot to take a step in walking it caught me in here and over the top of it. If it had been dead behind the tree I would never have walked into it, but it was hanging out.'

A police officer, who was summoned immediately after the accident, testified that the plate was of black metal about two and a half feet square and about a quarter of an inch thick, and that it protruded above the drain 'at least two or three inches.' He said the nearest light was across Harford Road, on the west side.

One photograph in the record shows grass growing from the curb some three or four feet to the east for a number of feet south of the tree spoken of, but that beyond the grass to the east and to the north of the tree there is bare dirt on which are a number of small scattered stones. Another photograph shows that the concrete sides, particularly on the south side of the drain, had worn away or disintegrated, and that there are several upright pipes or stakes within and protruding above the concrete sides surrounding the drain. From the latter photograph it appears that it would have been impossible for the plate to have been flush with the top of the south concrete side and that the protrusion of the plate above it, testified to by both the plaintiff and the police officer, was brought about by these stakes or pipes.

It was stipulated that the bus stop at which Pierce alighted had been designated as such by the Transit Company with approval of the City; that there are no sidewalks on the east side of Harford Road between the intersections of Thirty-second Street and Erdman Avenue; that the land on which Pierce was walking lies between the park property and that part of Harford Road presently used by vehicular traffic; that the land formerly was used by the Transit Company as a right-of-way; that in May 1957 the company abandoned the right-of-way and it was accepted at that time by the Mayor and City Council for whom it was inspected by an inspector of the Bureau of Highways; and that 'the steel plate described in the declaration and testimony had been emplaced or installed by the Baltimore Transit Company.'

The lower court decided the case on contributory negligence, but the question of primary negligence also calls for decision and was argued in this Court by both sides. We think that the final decision was for the jury, both as to primary and contributory negligence.

It is generally held, and this Court has agreed, that a municipality has a duty to maintain streets, sidewalks, and footways, and the areas contiguous to them, in a reasonably safe condition. Mayor and City Council of Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56, 60 ('The duty to keep the streets and footways of the municipality in a safe condition for public travel, and to prevent and remove a nuisance affecting the use and safety of these public ways extends to the land immediately contiguous to these public ways.'); Town Com'rs of Centreville v. County Com'rs of Queen Anne's County, 199 Md. 652, 656, 87 A.2d 599; Haley v. Mayor and County of Baltimore, 211 Md. 269, 127 A.2d 371; Birckhead v. Mayor and City Council of Baltimore, 174 Md. 32, 197 A. 615; Mayor & Council of Hagerstown v. Hertzler, 167 Md. 518, 520-521, 175 A. 447, 448. In the Hertzler case, the area involved was a grass strip between the curb and the sidewalk in which there was a tree supported by a guy wire over which the appellee fell. In permitting recovery against the municipality, this Court said: 'The strips are parts of the highway although the rights and duties with respect to them are not the same as those with respect to the paved ways, laid out for traveling. Foot passengers are not excluded from them, unless, indeed, by some effectual withdrawal of the strips from use, either by fences or notices. When the strips are left open to them, the pedestrians are, as stated, bound to protect themselves against any of the regular uses and obstructions, and comparative roughness of the ground; protection may be required of the municipality only beyond that point. It is obliged to exercise care for the safety of the pedestrians against dangers, not from the customary, permissible uses or conditions, but dangers of a kind that would not be expected by foot passengers, dangers in the nature of traps. If the municipality should know of such dangers, or in the exercise of due care ought to...