Short v. Baltimore City Pass. Ry. Co.

• Decision Date: 25 July 1878
• Citation: 50 Md. 73
• Parties: HICKS SHORT v. THE BALTIMORE CITY PASSENGER RAILWAY COMPANY.
• Court: Maryland Court of Appeals

50 Md. 73

HICKS SHORT v. THE BALTIMORE CITY PASSENGER RAILWAY COMPANY.

Court of Appeals of Maryland

July 25, 1878

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered the following prayer:

If the jury shall believe from the evidence, that the defendant threw the snow from its track on Gay street, across the mouth of Hoffman street, where it intersects Gay, in such a manner and in such quantities as to obstruct the usual flow of the water from Hoffman street, and that by reason of said obstruction the water on Hoffman street overflowed the gutter and footway, and flooded the premises of the plaintiff, then the jury are instructed that the plaintiff is entitled to recover such damage as he has sustained by reason of such overflow.

And the defendant offered the three prayers following:

1. That if the jury shall find that the defendant exercised ordinary care in the management of its tracks on Gay street, and removal of the snow therefrom, and cleaning out the gutter extending along Gay street, at the side of its track, and that the damage suffered by the plaintiff was attributable either to the conformation of the ground and situation of his premises, or to a storm of such extraordinary severity that the usual drainage provided by the city would not carry the water off, then their verdict should be for the defendant.

2. That if the jury find that the damage suffered by the plaintiff was caused by the condition of the gutter or foot pavement on Hoffman street, at the north side of the house standing between Gay street and the property of the plaintiff, then their verdict should be for the defendant.

3. That the defendant was under no obligation to clean out the gutters on either the north or south sides of Hoffman street running east and west, and under the ordinances of the city it was the duty of the police officers to cause the snow and ice to be removed from the flagstones at the intersection of Hoffman and Gay streets, to remove the ice and other obstructions to the free passage of the water at the intersection of the said streets, and to cause to be removed any ice and snow on the foot pavement in front of the house at the south-east corner of said streets, which the jury may find that the owner of said house had neglected to have removed; and if the jury shall find that the injury complained of by the plaintiff in this action, was caused by the failure or omission of the police to discharge properly said duty, then their verdict must be for the defendant.

The plaintiff filed special exceptions to defendant's prayers as follows:

1. Because there is no evidence that the damage to the plaintiff was caused by a storm of extraordinary violence, or by the conformation of the ground as assumed in defendant's first prayer.

2. Because there was no evidence from which the jury could infer that the damage was caused by the condition of the footway and gutter of Reaney's house, on the corner, as assumed in defendant's second prayer.

3. Because there was no evidence to show that it was the duty of the police to keep the intersections of the streets clear etc., as stated in defendant's third prayer, and because there was no evidence of any failure or omission of the police to discharge said duty, or that the plaintiff's damage was caused thereby, as assumed in said third prayer.

The court (Dobbin, J.,) granted the plaintiff's prayer in connection with such qualification as might be found in the defendant's prayers which it granted. The plaintiff excepted. The verdict and judgment being for the defendant the plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY and ROBINSON, JJ.

J T. Mason, R., for the appellant.

The foundation of this action is not negligence. Negligence is not the gravamen of the offense. An act may be perfectly lawful in itself, and performed with the utmost care and caution, but if damage thereby accrue to the property of another, from that moment it becomes unlawful.

Moreover, in this case the defendant was making an extraordinary use of a public street for its own private emolument; and if thereby it injured any one else, no amount of care or diligence could exonerate it. Even if the damage be the necessary and inevitable result of the act, the defendant must answer for it in damages.

The question, in actions of this sort, is not whether the defendant has acted with due care, but whether his acts have occasioned the damage complained of. If the acts complained of were done by the appellee, or by his agents or servants, in the course of their employment, they were unlawful invasions of the appellant's rights, and it matters not that they were done without negligence. Lawson v. Price, 45 Md. 135; Scott v. Bay, 3 Md. 445; R. R. Co. v. Reaney, 42 Md. 130; Chapman v. Thames Mfg. Co. 13 Conn. 272; Bonomi v. Backhouse, Ell. Bl. & Ell. 652; Addison on Torts, 5.

The act of the appellee in obstructing the street was unlawful, and as the loss has actually happened whilst its wrongful act was in force, it will not be allowed to apportion or qualify its own wrong.

Conceding, for the argument, that the conformation of the ground or the severity of the storm might have damaged the appellant, this is not sufficient to discharge the appellee. To entitle it to exemption, it must show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done. Davis v. Garrett, 6 Bing. 716; Scott v. Shepherd, 3 Wils. 403; Vandenburg v. Truax, 4 Denio, 464; Powell v. Salisbury, 2 Young & Jervis, 391; R. R. Co. v. Reaney, 42 Md. 138.

The appellee's first prayer was vicious, because it left out of view the fact (which was not contradicted) that the servants of the appellee obstructed the mouth of Hoffman street, and instructs the jury that if the appellee used due diligence in keeping the Gay street gutter open, and that the damage was the result of the conformation of the ground and the severity of the storm, the plaintiff could not recover.

This was, in effect, an instruction that the severity of the storm and the conformation of the ground were the proximate causes of the damage, and the appellee's act too remote; which was clearly bad law. R. R. Co. v. Reaney, 42 Md. 133.

The appellee's second and third prayers are obnoxious to the same objection, in that they ignore the wrongful act of the appellee in obstructing the street, and treat the facts mentioned in those prayers as the proximate cause of the damage. Addison on Torts, 5; 3 Parsons on Contracts, 179, 180; 1 Hilliard on Torts, 94, 95; R. R. Co. v. Gantt, 39 Md. 143.

There was no evidence to support the hypothesis in the appellee's first prayer, that the storm was of such extraordinary severity that the usual drainage provided by the city would not carry the water off; nor that the damage was attributable to the conformation of the ground and the situation of the premises.

The evidence on this point was that there was a good grade on Hoffman street, and the water always ran off with ease; and the City Commissioner (one of the appellee's own witnesses,) said if the mouth of Hoffman street had not been obstructed, the water would have passed off.

There was no evidence to support the hypothesis of the second prayer of the appellee.

There was no evidence to support the hypothesis of the appellee's third prayer, that the condition of the flagstones, etc., at the corner, and the failure of the police to perform their duty, caused the damage. The only evidence as to the flagstones was that they were cleaned off; and such being the case, the jury could not have found otherwise. R. R. Co. v. Reaney, 42 Md. 138.

The evidence also was that the servants of the defendant placed the obstructions at the intersection of the streets, late in the afternoon, and completed their work about dark; and certainly the appellee could not claim exemption because the police did not come in the night and remove them.

The appellant's prayer correctly stated the law, and should have been granted without qualification. The appellee having been guilty of a wrongful act in obstructing the street, was answerable for any damage which thereby accrued to the appellant, for all the consequences which might have been foreseen; and can only exonerate itself by showing that the loss must necessarily have happened if the act complained of had not been done, of which there was no evidence. And the doctrine of negligence has no application to this case. Lawson v. Price, 45 Md. 135; R. R. Co. v. Reaney, 42 Md. 138.

Arthur W. Machen, for the appellee.

The City Code of 1869, sec. 157, was in evidence.

The plaintiff's prayer was granted, and it put his case before the jury more favorably than he was entitled to have it. And there was no error in granting either of the defendant's prayers.

The use of the street by the horse railway company was a lawful use of the highway as a highway, and not the imposition of any new easement. Peddicord v. R. R. Co. 34 Md. 463; Commonw. v. Temple, 14 Gray, 69; Elliott v. R. R. Co. 32 Conn. 579; 1 Redf. on Railways, 318.

In making this use of the bed of the street, in exercise of its franchise, the defendant was bound for ordinary care, but exercising such care, could not be held to a greater degree of responsibility, any more than a person making use of the highway as a highway, but in some other mode, is bound to do more than exercise reasonable care. What is sufficient care in any case, depends, of course, upon the circumstances of that case. The removal of the snow from the track being necessary, in order to enable the defendant to use it for...