Appeal from the Circuit Court for Montgomery County; Shook, J.
Brune, C. J., and Henderson, Hammond, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.
The plaintiff-appellant (Moses Benson) brought this action to recover damages for injuries sustained as the result of striking his head against a steel beam erected above a public alley in Washington, D. C., between buildings belonging to the defendants (James E. Halley*fn1 and David Keppel). This appeal is from the judgment for costs entered against the plaintiff in favor of the defendants upon the granting by the trial court of a motion for a directed verdict.
The beam involved was one of two that had been erected in the year 1921 to support a wooden bridge or catwalk connecting the building -- acquired by James E. Halley in December of 1950 or January of 1951 -- located at 1220-22 North Capitol Street and the building -- acquired by David Keppel in the year 1948 -- located on the premises across the alley in the back of the Halley Building. The bridge had been erected at a time when both buildings were occupied by the Washington Planograph Company. The wooden portion of the bridge was removed by the occupant sometime during the year 1950, but the beams were not. The record shows that, although one of them was then an owner, neither of the defendants knew whether a permit had been obtained to remove the structure. The only other evidence on this point was that of a long-time employee of the planograph company. In answering an interrogatory as to whether a permit had been obtained to remove the bridge, the employee replied "not to my knowledge," and
he did not recall whether an inspection had been made by an agent of the Commissioners of the District of Columbia. On the date of the accident there was no sign or other device to warn motorists using the alley of the existence of the beams or the height of the clearance between them and the bed of the alley. After the accident, the officer who investigated it ascertained by measurements he then made that the beams were twelve feet and three inches from the paved surface of the alley and that the height of the trash truck from the ground to the top of the tail gate was nine feet and three inches.
On July 2, 1958, the plaintiff, who was an employee of the District Sanitation Department, was tamping or "walking" down trash in the back of the half-filled truck as it passed under the beams in the alley. At the time he was standing sideways and was watching his feet in order to avoid losing his balance on objects that might be in the trash. He did not see the beams and the side of his head struck one of them. The blow toppled him from the truck into the alley. He sustained numerous injuries, including a fractured leg, as a result of the fall.
The plaintiff had been employed by the department as a trash man for five years, but he was not familiar with that particular route and he had never been in the alley in question before. Normally he worked on the ground in a crew of five as one of the two passers on another route, but on the day of the accident he was working as a "swing man" and was replacing one of the two catchers who usually worked on the truck. (The fifth man of the crew operates the truck as it proceeds slowly from stop to stop through the alleys.)
The other catcher, who was working with the plaintiff in the front of the trash bin, passed safely under the beams. He was somewhat shorter than the plaintiff and the trash was lower in front than it was in the back where the plaintiff was working, but he did not see the beams either, and for that reason had no opportunity to warn his fellow worker.
While the record is somewhat confusing as to whether the plaintiff had ever received instructions to the effect that when he was riding on the truck he should always face forward and not backward, it is clear that his foreman had never given the
plaintiff either an oral or written instruction to that effect. And it is not controverted that when the accident happened, the plaintiff was standing sideways on the truck with his back toward the center of the trash bin.
The amended declaration contained two counts. In one of them, the plaintiff, among other things, alleged in effect that despite the duty of the defendants to maintain the buildings in such manner as would leave the alley between them in a reasonably safe condition for those, including himself, lawfully using it, they nevertheless, with knowledge of the hazardous condition created by the beams, negligently and carelessly permitted the beams to remain at a dangerously low height above the alley and failed to warn those lawfully using the alley of the hazardous and dangerous condition. The other count alleged in effect that the defendants, with full knowledge of the existence of the beams, allowed them to exist in violation of law; that the beams constituted an unlawful and unreasonable obstruction of the alley and a danger and hazard to the safety, health and welfare of the ...