COLLINS, J., delivered the opinion of the Court.
The appellant, Roger Denbow, entered suit against the defendant, appellee, in tort for damages sustained by him in stepping into a manhole left open and unguarded by employees of the appellee. The jury returned a verdict in favor of the appellant in the amount of $15,000.00. However, the trial judge granted a Motion N.O.V. and entered judgment for the appellee. From that judgment the appellant appeals.
Mr. Denbow in returning from work each day customarily stopped at a tavern near his residence for a glass of beer. About 4:30 P.M. on the afternoon of August 1st, 1950, he parked his automobile on Sanner Avenue off of Belair Road, about one half a block from his home. He then went as usual to the Spot Tavern, 4905 Belair Road, which is separated only by a public alley from Sanner Avenue. He drank two glasses of beer, staying in the tavern not over fifteen minutes. The afternoon was clear, bright daylight saving time. He walked out of the tavern, turned to the right and walked about 10 feet on the sidewalk up Belair Road toward Sanner Avenue to the public alley. As he came to the end of the Spot Tavern which bordered the alley, two men were working there, Mr. Franklin C. Butterbaugh, employed by the appellee, and his helper. Mr. Butterbaugh was writing on a piece of paper against the coca-cola sign on the wall at the end of the tavern. This attracted Mr. Denbow's attention. Mr. Denbow stepped off the curb, six inches high. The helper stepped back. Mr. Denbow then stepped back out of the helper's way and took another step forward into a
Mr. John L. Effinger, a florist, whose place of business was directly on the corner of Belair Road and Sanner Avenue and between the public alley and Sanner Avenue, testified that he saw the telephone men working on this manhole the day of the accident and the previous day. He could see the manhole through his open front door. They had an iron pipe guard about 3 feet high around it all day. It was removed shortly after four o'clock in the afternoon. The man picked it up and put it in his small truck on Sanner Avenue. He said: "And then I saw two men — I saw one man standing up with his hand and piece of paper on the coca-cola sign that is on the side of — side wall of the tavern making some notations, and I thought possibly there was a man down in the hole giving him some measurements for material that he had to use. That was my impression. Now, what he was doing I don't know, but the manhole was off — the cover was off and the manhole was open then. * * * A little while — a very short while after that I happened to look out again and I saw Mr. Denbow in the manhole." He did not actually see Mr. Denbow fall in the manhole.
Mr. Butterbaugh, employed by the appellee, and called as a witness by the appellant, testified that with his
There is no doubt in this case that the appellee was guilty of such primary negligence to warrant the submission of that issue to the jury. In Citizens Savings Bank v. Covington, 174 Md. 633, 199 A. 849, the bank maintained in, and flush with, the sidewalk of Eutaw Street in Baltimore a sheet iron door which afforded access to the cellar under its building. It was raised by an iron handle in the shape of an inverted U which was designed to fall of its own weight into place. About eleven o'clock at night the plaintiff, Covington, when walking on Eutaw Street stepped on the cellar door and her foot caught in the iron handle which was sticking up and she fell. It was said in that case, 174 Md. at pages 637 and 638, 199 A. at page 851: "There is no question here of the right of the defendant to maintain a cellar-door in the sidewalk, but it is a privilege to be enjoyed without danger of injury to pedestrians, who are only required to use ordinary care in their use of the street. The owner is not required, in order to impose liability, that he should know of the misplaced handle, used in the raising or lowering of the door. If the device was so constructed or left in such condition that it may be disturbed by the mischievous or malicious, then the negligence is imputable to the owner. Calder v. Smalley, 66 Iowa 219, 23 N.W. 638. We, therefore, are of the opinion that the trial court properly refused to take the case from the jury for want of legally sufficient evidence of the defendant's negligence or failure of duty." The Court pointed out therein that the question in all
The remaining question is whether the appellant was guilty of contributory negligence as a matter of law. The appellee argues that the same degree of care should have been exercised by the appellant in looking for obstructions in the pavement while crossing this narrow alley as is required of persons driving a vehicle on a highway to look for obstructions in the street, as in Knight v. Baltimore City, 97 Md. 647, 55 A. 388; Kaufman Beef Co. v. United Railways Co., 135 Md. 524, 109 A. 191, 9 A.L.R. 476; and Miller v. Baltimore, 161 Md. 312, 157 A. 289. With this contention we do not agree. In fact, in Knight v. Baltimore City, supra, it is said, 97 Md. at page 654, 55 A. at page 390: "Without committing ourselves to the ruling made by the Iowa Court in that case [Matthews v. City of Cedar Rapids, 80 Iowa 459] upon the particular instruction under consideration, we concur in its statement that greater watchfulness is required of the driver of a team upon a city street, than of a pedestrian upon the sidewalk, and that what would be negligence in law in the former case might not be in the latter." See Baltimore v. Poe, 161 Md. 334, 338, 339, 156 A. 888. In the case of Irwin v. Sprigg, 6 Gill, 200, the plaintiff stepped into an open areaway in front of appellant's house, designed to light
In Reed v. Baltimore, 171 Md. 115, 188 A. 15, the plaintiff in the afternoon, about 2:30 P.M., went to Cross Street Market and on leaving the market with which she was familiar, entered a walkway which was a continuation of the westerly sidewalk of Light Street. While proceeding thereon she tripped over a platform or obstruction three feet long, two and one-half to three inches in height, and eighteen inches wide, constructed of ordinary board and lying flat on the cement walkway, its entire length being next to a market stall. This Court there held that the plaintiff's conduct in failing to observe the platform was not such as to warrant the holding that she was guilty of contributory negligence as a matter of law.
As to the out-of-state cases on the subject: "Liability for injury by stepping or falling into opening in sidewalk while doors were open or cover off", these are well annotated in 70 A.L.R. beginning at page 1358, where it is said: "This annotation, as the title indicates, is confined to cases wherein persons are injured by falling into an areaway, vault, coal hole, cellar way, or other opening in the sidewalk, which was open and uncovered at the time of the accident." With an extensive review of the cases under the heading "Contributory Negligence" it is said at page 1388: "The doctrine that reasonable care which the law exacts of all persons, in whatever they do involving the risk of injury, requires travelers on the sidewalks of public streets to look where they are going; but this does not necessarily mean that a pedestrian is required to be constantly watching for openings in the sidewalk. The pedestrian has the right to assume that the sidewalk is in a reasonably safe condition for travel, and to act on that assumption. If there is a conflict of testimony, or for any cause there is reasonable doubt as to the facts, or as to the inferences to be drawn from the facts established by the evidence, the contributory negligence of the pedestrian is a question
Here, appellant was crossing in the crosswalk (Johnny's Cabs, Inc. v. Miller, 199 Md. 16, 85 A.2d 439) a narrow alley which he was accustomed to cross every day and where others crossed. He was familiar with the curb and the pavement of the alley. A careful person would not ordinarily look down at the pavement under such circumstances. He was required to look to his right and left to avoid traffic. According to the testimony in the case, even if he were looking straight ahead it was doubtful whether he could have seen the open manhole. If he had looked down he might have seen it. There was evidence that his attention was attracted elsewhere by the very persons whose duty it was to guard the manhole as he stepped off the sidewalk and down over the curb. He was required to step back out of the helper's way before he stepped forward in the manhole. Whether this case be regarded as a sidewalk case, as in Reed v. Baltimore, 171 Md. 115, 188 A. 15, supra, or as a street crossing case, as in Baltimore v. Bassett, 132 Md. 427, 104 A. 39, supra, we are not warranted in holding contributory negligence of the appellant to exist as a matter of law. The judgment will therefore be reversed.
Judgment N.O.V. reversed with costs, and judgment entered on the verdict of the jury for $15,000.00, for appellant against appellee, with interest and costs.