Lion v. City Pass. Ry. Co. , 90 Md. 266 ( 1899 )

Legislative permission was given to the Baltimore City Passenger Railway Company to use the cable system for the propulsion of its cars. In constructing that system it became necessary for the company to build the cable conduit under open gutters wherever it intersected them. Ensor street and Ashland avenue intersect each other nearly at right angles. In going from one to the other — that is to say, in going north along the former and curving therefrom east into the latter — the open gutter formerly along the east side of Ensor street, where it crossed Ashland avenue, had to be passed, and as it was impossible for the conduit with its open slot to be built under the surface gutter, the gutter was changed to a closed sewer and sunk by the railway company under the conduit. To provide for the water carried off by the surface-gutter a twenty-inch drain-pipe was laid by the company some feet below the grade or level of Ashland avenue, from a point north of the northeast corner of Ensor street and Ashland avenue to a point south of the southeast corner of the same street. At this latter point there was a vault built, and the twenty-inch pipe was made to discharge into it. At the north and south ends of this twenty-inch pipe there were eight-inch openings leading from the surface gutter; and at the northeast corner of the two streets there was laid under-ground and running eastwardly, a fifteen-inch pipe connecting with the twenty-inch pipe and conveying into it the surface-water gathered from the north side of Ashland avenue. At the southeast corner of these same streets there was another fifteen-inch pipe laid conveying into the vault the surface-water gathered from the south side of Ashland avenue and from Sterling and Aisquith streets farther to the east. Leading from the vault and running down Ensor to Madison street was a fifteen-inch outlet pipe. Water which formerly passed south across Ashland avenue and down Sterling and Aisquith streets was carried west along Ashland avenue to this vault. The bed of Ashland avenue was raised to accommodate the location of the conduit. It was made the duty of the company to keep in repair and to remove obstructions from this vault and these underground sewers or pipes. It will be noticed that all the water entering this vault from the two eight-inch openings and from the two fifteen-inch pipes was designed to be discharged through one fifteen-inch outlet, and that the volume of water brought to the vault by these works of the company was greater than had formerly passed the southeast corner of the two streets — Ensor and Ashland — upon the surface. All this work was done by the railway company under the direction of the City Commissioner. In eighteen hundred and ninety-six the appellant purchased a house at the southeast corner of Ensor street and Ashland avenue in the immediate vicinity of, or about twelve feet away from the vault described above. At the time he purchased the house the cellar was dry and the walls were free from cracks, although these drain-pipes had been laid and this vault had been built for some four years. Shortly afterwards the vault overflowed and the cellar of the appellant's house was flooded. When the vault was cleaned out by the railway company the water in the cellar receded. This overflowing and flooding occurred on subsequent occasions and in every instance from an ordinary rainfall. As a result of these overflows the walls of the appellant's house were so damaged and rendered so unsafe that the house was, by direction of the building inspector, taken down. The appellant then sued the railway company for the damage thus sustained by him. He alleged in his declaration that "by reason of the careless, unskilful and negligent manner in which said sewer was constructed, kept in repair and attended to, water came into the cellar" of his house and caused the injury just described. These facts were shown by the evidence and there was also testimony tending to prove that the plan of this construction of the drain-pipes and vault or receiver was bad; and that the works, as built, were insufficient to carry off, except by an overflow that would flood the appellant's cellar, the amount of water which might be expected to enter the vault or receiver in seasons of ordinary rains. At the conclusion of the testimony the plaintiff presented three prayers and the defendant thirteen.

The Court rejected all of those offered by the plaintiff and granted one at the instance of the defendant, whereupon the defendant withdrew the others which it had presented. The instruction granted is in these words: "It being an admitted fact that the defendant's drain was laid before the plaintiff owned the property in question, and there is no legally sufficient evidence that the plaintiff notified the defendant that the drain caused an injury to the same, and the verdict must be for the defendant." Under this imperative instruction the verdict was, of course, rendered for the defendant, and from the judgment entered thereon the plaintiff appealed.

There were several questions discussed in the argument at the bar, but the controlling ones are those raised by the instruction just transcribed and by the rejection of the prayers of the plaintiff. If the railway company elevated the bed of Ashland avenue and brought an increased volume of water to the corner of Ensor street and Ashland avenue, and then by the negligent and unskilful construction of or attention to the sewers, or drains and vault, designed to carry off the water, failed to convey it away, whereby it overflowed the vault or receiver and damaged the plaintiff's house; it can scarcely be doubted that the company is liable. When the company undertook to change the accustomed flow of the surface-water and to concentrate it in under-ground drains and a vault, at a point where but a part of it formerly had harmlessly flowed on the surface; it was bound, at its peril, to provide adequate means to discharge the water so gathered by it, and to discharge it in a way that would not be injurious to others. This was a perfectly plain duty that was incumbent upon it; and it is no answer to say that it relied on the judgment of competent engineers in the construction of its works, if, in fact, the works, as constructed, are inadequate to accomplish the purpose, or were unskilfully built. The employment of a competent engineer to direct the work is not the fulfilment of a duty to avoid doing injury to another, when notwithstanding the engineer's competency, the work as constructed does cause injury. The test of liability is not the fitness of the engineer but the efficacy of the work. Hitchens Bros. v. Mayor, c.,Frostburg, 68 Md. 113, 114, 115.

Assuming this to be true, the doctrine laid down in the instruction, which took the case from the jury, is that a recovery cannot be had against the original wrongdoer by one who, after the construction of the work which did the injury, became the owner of the property injured, unless the party sustaining the injury first notifies the wrongdoer to remove the cause of the injury and the latter omits or refuses to do so. This doctrine is not tenable, and the case of Picket and Wife v. Condon, 18 Md. 412, relied on to sustain it, does not do so. Ever since the decision of Penruddock's case, 5 Coke, 101, it has been the settled law that the alienee of land upon which a nuisance existed when the alienee acquired the land, is not liable to the owner of other property, subsequently purchased, for an injury done to the latter by the pre-existing nuisance, until the alienee has been first notified to abate the nuisance. This was all that was decided in Pickett v. Condon. Condon acquired property in 1855. At that time the land had a dam on it across a stream. Pickett and wife acquired their property in 1856. The dam erected by Condon's grantor caused the water to flow back on Pickett's mill. Pickett sued Condon and it was held that as Condon's grantor and not Condon had erected the dam, and as Condon had not been notified to remove it, he was not answerable. The reason of the rule is obvious. A person who has not erected a work that may become a nuisance or occasion damage or who was in no way connected with its construction is not responsible for the injury it does cause. If he subsequently becomes the owner of the property upon which the nuisance is located, and thus gets control of the injurious thing, knowledge that it is injurious must be brought home to him and an opportunity must be afforded him to abate it before he can be made liable, otherwise he would be held responsible, not for his own but, for his grantor's wrongful act. If with that knowledge he does not abate the nuisance he is treated as continuing it. And so all the cases from Penruddock's down have held. Ph. R. Ry. Co. v. Smith, 64 Fed. Rep. 679; s.c., 27 L.R.A. 131, and cases there cited.

But the bare statement of the proposition that where the party sued was not the original creator of the nuisance, he must have notice of it, and a request must be made to remove it, before any action can be brought, carries with it the exclusion of its application to the original wrongdoer. Why should the original wrongdoer have notice before being sued? It is his negligent act which causes the injury, and for that negligent act — and not for a continuance of it after notice given — he is answerable. Notice to him from any one injured by his wrongful act is wholly unnecessary. Met. Sav. Bank v. Manion, 87 Md. 68. InEastman v. Amoskeag Mfg. Co., 44 N.H. 144, it was held that no notice or request to abate the nuisance is necessary before bringing suit against the original wrongdoer; but that the grantee of the nuisance is not liable until upon request made he refuses to remove the nuisance. Even "when he who erects the nuisance conveys the land, he does not transfer the liability to his grantee." Plumer v. Harper, 3 N.H. 88. It is clear, then, upon reason and authority, that no notice was required to be given by the appellant to the railway company, the original erector of the structure which caused the injury, before the pending suit was brought, and there was consequently error committed in granting the instruction which took the case away from the jury on the sole ground that such notice had not been given.

As to the plaintiff's rejected prayers, but little need be said. There was evidence tending to support the hypotheses which they set forth. If the facts alleged in the narr. make a good cause of action, as they undoubtedly do, then the prayers submitting the finding of those facts to the jury should have been granted. There was quite enough evidence from which the jury could well have determined that the injury to the house resulted from the negligent or unskilful construction of, or attention to, the sewer and vault. It is true, it was insisted in the argument, that there was no evidence before the jury to show any relation between the construction of the sewer and vault, and the injury to the house, and it was contended that although these events were contiguous in time and place there was nothing more than a coincidence in their occurrence and that, therefore, it was a palpable fallacy to assume that the one was the cause of the other. It is sheer sophistry to assume that because a given thing is posterior in occurrence to another, it is, therefore, the result of the anterior event. The plaintiff's contention, however, is not simply that because before the sewer and vault were built there was no injury to the house, and because after they had been constructed there was an injury, that therefore the injury was the result of their being built; but the facts tended to show that only when the sewer and vault were choked and overflowed, either by reason of the insufficiency of the outlet or because of the company's inattention to their condition, did the cellar become flooded. The cause of the actual damage was traced to the overflowing vault, and the negligence or unskilfulness of the company occasioned those overflows. Between the alleged cause and its asserted result there was a direct connection in fact — a dependency of the one upon the other as actually traced by one of the witnesses; and this is widely different from that fallacious reasoning in which that which is no cause at all is assumed to produce an alleged effect simply because the two are contiguous in time and place whilst having no other relation to each other than sequence in the order of their occurrence.

There was but one cause proved that produced the injury. There is nothing in the record to bring the case within the doctrine followed in Wise's case. That doctrine briefly stated is: When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong. Co. Com. v. Wise, 75 Md. 42.

For the reasons we have assigned, the prayers of the plaintiff ought to have been granted and the instruction which was given by the Court ought to have been refused.

Because of these errors the judgment must be reversed and a new trial will be awarded.

Judgment reversed with costs above and below and new trialawarded.

(Decided December 6th, 1899).