Flynn v. Canton Co.

Miller, J., delivered the opinion of the Court. This is an action on the case by the appellant against the appellees, to recover damages for personal injuries sustained by the plaintiff, in consequence of slipping and falling upon ice covering the pavement of a public street in the city of Baltimore, in front of premises occupied by the defendants. The proof shows that the plaintiff while on her way to church, on the morning of the 27th of February, 1873, slipped and fell upon a sheet of ice on the pavement or sidewalk of Q’Tlonnell street, and by the fall, her right ³¹⁸ arm was broken and permanently disabled; that she was walking at the time with ordinary care, and could not see the!i ice because of a slight covering of snow which fell during the preceding^pighP; that the pavement where the accident happened was in front of the Canton Market House, then in the possession and occupation of the defendants, a body corporate, under a lease from the city. It was further in evidence that snow had fallen frequently from time to time during the winter, prior to the accident, and was permitted to remain and accumulate as it fell on this pavement; that the police officer on that beat had notified the defendants several times during January and February before the accident, to remove the ice and snow which had thus accumulated, but it had not been done, and the pavements around the market were never touched; that the snow was melted by the sun, and the water thus formed was frozen the night before the accident; and that the pavement was smooth and the ice formed in a smooth sheet over it.

The action is grounded on the neglect of the defendants to comply with an ordinance of the city, which made it the duty of owners or occupiers of property, to clear away snow and ice from the pavements or sidewalks contiguous to their premises. The argument, very ably presented, is that this was a duty cast by law upon the defendants, and if from their neglect to perform that duty, special injury has resulted to the plaintiff from the nuisance or obstruction thus suffered, or permitted to exist, they are liable in damages therefor. Like ordinances have been in force in Baltimore and other cities of the State for many years, and this is the first instance in which such an action has been brought against the property owner. This however, is no valid reason why the action should not be sustained, if it shall appear to be founded on well established legal principles.

But the facts that it is a case of first impression in this State, and that it involves a question of very ³¹⁹ great interest and importance to the inhabitants and property owners of the cities where such ordinances are in force, have induced the Court to give it a very careful consideration. There is not in this State, as there is in many others, any statute providing that municipal corporations and comity authorities, having the care and control of public streets, roads, and highways within their limits, shall keep the same in good repair so as to he safe and convenient for the passage of persons and property, and giving in express terms an action on the ease to any person receiving injury in consequence of any obstruction or defect therein. Such actions against these corporate authorities have nevertheless been sustained by tbis Court, and it is important to notice the grounds upon which the liability is placed. In Marriott’s Case, 9 Md., 160 , a case very similar to the present, the action was against the municipal corporation, and the Court held that the provision in the charter of the city, that the Mayor and City Council “ shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent and remove nuisances” confers a power to he exercised for the public good, the exercise of which is not merely discretionary hut imperative, and the words “power and authority” in such cases mean duty and obligation; that a disregard of the duty thus imposed rendered the corporation liable in damages, and that the city had not brought itself within the saving of having used reasonable diligence in removing the accumulation of ice which constituted the nuisance complained of, by the mere passage of ordinances providing for the removal of snow and ice from the pavements of the streets, hut was hound to make vigorous efforts to enforce such ordinances in order to relieve itself from this obligation and liability.

In Pendleton and Harlan’s Case, 15 Md., 12 , the action, also against the city corporation, was to recover damages ³²⁰ for injury to the plaintiff’s horse, occasioned hy falling into a trench that had been dug in the street. The trench ■'was dug by the owner of a house for the purpose of introducing water into it from the main water pipe belonging to the city, and running along the centre of the street, and it had been/filled up with earth and paving stones placed upon it, but in such manner that by reason of snow and wet, the ground was so soft that the horse sunk into it and thus sustained the injury. The arrangement, provided for hy ordinances, by which lateral pipes are inserted into the main pipe was this : the officers of the corporation for an established charge paid to it, bore a hole in the main pipe, and the rest of the work is done by the persons into whose premises the water is to be conducted, the necessary excavation, filling up and paving being also done by the owner of the property. The Court held that the fact that these responsibilities were thus imposed on the property owner, did not relieve the corporation from the obligation under its charter, to keep the public highways within, its limits, free from nuisances and in a condition to be safely travelled, and following Marriott’s Case , affirmed the judgment against the city.

Whether the plaintiffs could not have maintained their action against the owner of the house for the negligent manner in which he filled up the trench, or whether the city having paid the judgment had not a ■remedy over against him, as was held in Chicago City vs. Robbins, 2 Black, 418 and 4 Wallace, 657, are questions which were not raised or considered in that case. Next in order is Duckett’s Case, 20 Md., 468 . That was a suit against County Commissioners, (the first instance of such an action in this State) for negligently suffering a public county road to be in such bad repair as to be impassable with safety, whereby the plaintiff in travelling thereon with wagon and horses, and using due care, had one of his horses killed. The case was very carefully considered.

The previous decisions of this Court bearing on ³²¹ the subject and many authorities elsewhere were reviewed. The Court was there pressed with the decision of Chancellor Kent in Bartlett vs. Crosier, 17 Johns., 439 , in the course of which, that distinguished jurist expressed the opinion that commissioners of'highways in Hew York were not liable to private suits for damages, occasioned by had roads or broken bridges, because, among other reasons, the law of that State had not supplied them with the coercive power requisite to meet and sustain, the enormous and1 dangerous responsibility which would he cast upon them if they were held liable to individuals to any extent and for any damage. The Court, whilst admitting the force of this reasoning, held it did not apply to the case before them, inasmuch as the law of this State had not only created the County Commissioners bodies corporate, with capacity to sue and he sued, and charged them with control over the county roads and bridges, but had also invested them with power to levy taxes for their repair and improvement, and to pay all debts expressly or impliedly contracted, thereby supplying them with ample means, and arming them with coercive power sufficient to meet and sustain all their liabilities, placing in fact all the resources of the county at their disposal, to enable them to perform their obligations, express or implied. They then say, “here is a concurrence of all the conditions necessary to constitute legal liability ; a duty imposed by law, means and agents placed at their command to execute it, and capacity to sue and be sued.” Then follows Allvater’s Case, 31 Md., 462 , which was also a suit against the municipal corporation.

The plaintiff, whilst passing along Saratoga street, was struck by a sled in rapid motion, thrown down and serioxxsly injured. At the time, and for weeks prior to the accident, a large crowd had daily congregated on this street and rendered travel on if inconvenient axid dangerous from the speed axid ixuniber of sleds used by them, thereby creating a ³²² nuisance. The Court decided the corporation was not responsible, because by legislation subsequent to Marriott’s Gase, the Board of Police had been created, deriving their existence from and strictly within the jurisdiction of the State authority, and invested with the exclusive control of the entire police force of the city, whereby the city corporation was deprived of the power to enforce their ordinances respecting nuisances. Whilst the provision of the city charter on that subject still remained in force, it was made also the duty of this Police Board to prevent and remove nuisances, and they were armed with the power to perform that duty.

The Court therefore held that under these circumstances the duties and obligations of the Mayor and City Council were qualified and limited by the provisions of the law creating the Police Board, and they say, “where the power and authority are conferred by the statute, .the party possessing them becomes necessarily responsible in actions like this for their proper exercise; but it is equally true that in the absence of such power and authority there can be no such consequent obligation,” and “it is but just that responsibility for the proper discharge of duty should result from the power to perform the duty.” From this review of our Maryland decisions on this subject, it is manifest the liability of these corporate authorities in actions like the present rests not simply upon the ground that a statute has imposed upon them a duty, but upon the further fact also that it has provided them with the means and clothed them with the power to enforce or discharge that duty. Is then liability to such an action cast upon the property owner by reason of neglect to perform the duty or service required of him by the ordinance in question ? What is that ordinance ? It provides that “it shall be the duty of each and every person, incorporated society, or public institution using or occupying in any manner, or for any purpose whatever, ³²³ any house, store, shop, stable or tenement of any kind, and of persons having charge of churches and public buildings of every description, and of owners of unoccupied houses and of unimproved lots, situate on any paved street, lane or alley in the city,” within a certain prescribed time after the fall of any snow or formation of any ice, “to remove and clear away, or cause to be removed and cleared away, the same from the foot pavements fronting the respective” premises, “ so used, occupied or owned by them, or under their charge, in such manner as not to obstruct the passage of the water in the gutters, under a penalty of two dollars for every neglect beside the expense of clearing the same away under the direction of the police officers, in the mode provided in the succeeding section,” and that section provides that “it shall be the duty of the police officers to cause the snow and ice to be removed by the persons employed for the purpose of cleaning the streets, from the footways of the bridges within the city, and from the flag-stones placed at the several intersections of the streets, as also to remove the ice and other obstructions to the free passage of the water at the intersections of the several streets of the city, and to cause the snow and ice to be removed from the foot pavements fronting the houses, stores, stables, churches, public buildings, lots, or tenements of such persons as shall neglect or refuse to remove the same, at the expense of the~cRyflSThe first instance, to be afterwards recovered from the person or persons so neglecting or refusing.” Unquestionably this ordinance is a valid exercise of the power conferred upon the city by its charter, and is operative to the extent and for the purpose contemplated by those who enacted it.

It may even be further conceded, as the appellant’s counsel insists, that it has the same effect within its limits and with respect to the persons upon whom it lawfully operates, that an Act of the Legislature has upon the citizens at large. But the question here is ³²⁴ what is its scope and effect ? Does liability to a private action follow from neglect to perform the duty or service thus prescribed? In our judgment it does not.

The whole design and effect of this ordinance, was to secure the proper application of whatever labor and means were necessary to discharge the obligation then resting upon the city to keep its streets in a condition to be safely travelled. The work enforced under it, and the