COLLINS, J., delivered the opinion of the Court.
This is an appeal from judgments rendered in favor of the appellees, Lillian J. Musgrove and James B. Musgrove, her husband, for damages as a result of a fall by Lillian J. Musgrove.
The single question before us is whether appellant's, defendant's, motion for a directed verdict, filed at the conclusion of all the testimony, should have been granted.
The declaration filed against the appellant, Washington Suburban Sanitary Commission, and Joseph L. Tillson and wife alleged, for the purposes of this case, substantially that the appellant owned a water meter located in the sidewalk on the north side of Thayer Avenue in Silver Spring. "Said meter or device was encased in an inclosure equipped with a lid or cover which, when properly in place, lies flush with the sidewalk; that said defendant had a duty to use reasonable care in maintaining said meter or device and cover so as not to endanger those lawfully walking upon said public sidewalk." On March 30, 1951, Lillian J. Musgrove, while lawfully walking with due care on said sidewalk, walked upon the lid or cover of the water meter. The lid or cover gave way causing her leg to be caught in said
The testimony, for the purposes of this case, follows. The appellee, Lillian J. Musgrove, testified that she was walking on the said sidewalk on the date alleged, in the dark, and stepped with her right foot down the concealed water meter hole there. She went first to the police station for aid for the injuries suffered as the result thereof, and was sent from there to a hospital.
Mr. Edward W. Lechlider, employed by the Montgomery County Police Department, testified that Mrs. Musgrove, one of the appellees, came to the police station on March 30, 1951, and complained that she had fallen into a hole covered with an iron lid on Thayer Avenue. He found the hole in front of a building being constructed at 957 Thayer Avenue. He found that the meter lid was not locked and was loose on top of the frame. As a result the lid was in such a position that it could swivel with "a little extra weight on either side of it". He then went back to the police station to get a light and when he returned someone had put the lid back in place and locked it and it was then very secure. He said that quite a number of people walk every day on Thayer Avenue where the water meter was placed.
Mr. Roger C. Finneyfrock, an employee of the appellant, a municipal corporation, testified in effect that on March 7, 1951, while helping to make a tap on the water main, he installed this water meter, over which the appellee fell, in the sidewalk on Thayer Avenue, a public street in Silver Spring. He was familiar with the water meter here in question. He said that it was
Mr. George L. Gardner, an employee of the appellant, testified that this meter was covered with a ten or twelve inch meter cover, which, when placed over the meter, is level with the sidewalk. He also said many of the employees of appellant carry the meter keys with them. He stated that there had been instances where the lids to the meters had been taken off with an ordinary monkey wrench by children.
Mr. Joseph Tillson, one of the defendants here on the theory that one of his agents or employees removed the lid from the meter, and against whom the appellees took a voluntary non-suit, gave the following testimony. He and his wife, on March 30, 1951, were the owners of the property at 957 Thayer Avenue, Silver Spring. On that date they were erecting a small office building there. The brick work was up. He did not know whether the building was closed or plastered at that time. According to the record, the plumbing work had been completed about a week before. He had seen the water meter in the sidewalk which would service the building he was constructing. To the question: "Would it be necessary, in the construction of a building, to tap in to the water meter in question?", he replied: "If you had water, it would be." He did not remember whether the water was turned on to the building. He said the
The appellees contend that there was evidence to show negligence on the part of the appellant in using an unsafe cover for the meter, and further that there was evidence tending to show negligence on the part of appellant in using an unsafe locking device for the cover. However, we must find that any question of the aforesaid alleged negligence on the part of the appellant was taken from the jury by the charge of the trial judge. Among other instructions to the jury, he said: "And there is no question in this case that the equipment was not modern and that it was not the proper class or kind of equipment to use. The negligence that they claim is the failure to use that equipment properly; and that was the first act of negligence claimed. The second act of negligence that they claim is that the defendant, owing the duty to use reasonable and proper care so as not to do injury to others, was negligent in permitting plumbers to connect the water to the houses. * * * In other words, what I mean by that is, if you find as a matter of fact that some child or somebody that we don't know anything about caused the top of that opening to be in the condition that it was and to be off or to be so that it could be removed and in its locked position, then there wouldn't be any negligence on the part of the defendant that would have caused these injuries and consequently your verdict would then be for the defendant."
Rule III, Trials, Rule 6, Instructions To The Jury, (c) and (d), provide as follows: "(c) Objections. Before the jury retires to consider its verdict, any party may object to any portion of any instruction given or to any omission therefrom or to the failure to give any instruction, stating distinctly the portion or omission
Under this charge, therefore, the only question left to the jury was whether the appellant failed to use the equipment properly or whether it was negligent in permitting the plumbers to connect the water to the houses.
As above stated, the appellant filed a motion for a directed verdict at the conclusion of all the testimony. In deciding whether this motion should have been granted,
There is no evidence or natural inference in this case that the appellant or any of its agents or servants unlocked this meter or even touched it in any way from March 7, 1951, when Mr. Finneyfrock testified that he made the tap on the water main, installed the meter, set the meter, put the top on the meter and fastened it down tight, until after Mrs. Musgrove's accident on March 30, 1951. Nor is there any evidence in this case that any plumber opened the meter, or had anything to do with the meter from the time it was installed on March 7, 1951, until March 30, 1951, when the accident occurred. Under the evidence a child could have removed the cover. After the instruction to the effect that, if the jury found that some child or someone else caused the top to be opened, there would be no negligence on the part of the defendant, the jury must have found that the negligent act was done by some agent or employee or a plumber to whom the appellant
It is not necessary that we pass upon appellant's contention that, as a municipal corporation, it was not liable for the injury here claimed because it had no actual or constructive knowledge of the alleged defective condition as discussed in Mayor & City Council of Baltimore v. Walker, 98 Md. 637; Engle v. Cumberland, 180 Md. 465; Neuenschwander v. Washington Surburban Sanitary Commission, 187 Md. 67.
Judgments reversed, with costs.