Gutowski v. Mayor of Baltimore

Urner, J., delivered the opinion of the Court. The City of Baltimore is sued in this case, with other defendants, on account of personal injuries sustained by the plaintiff while engaged, as an employee of a stevedoring company, in the work of loading a vessel with a cargo of dynamite. The injuries were caused by an explosion resulting, as alleged, from the use of iron hooks in the process of moving and storing the boxes in which the dynamite was contained. It is averred in the declaration that the cargo was being loaded into the vessel at a point in the Patapsco River within the jurisdiction and under the control of the Mayor and City Council of Baltimore, and subject to municipal laws, ordinances and regulations which prohibited the use of iron hooks in such work, and which the City had undertaken to enforce, but negligently permitted to be disregarded.

There are further allegations of negligence, but as they are directed against the other defendants, whose liability is not now to be determined, they need not be recited. A demurrer to the declaration was filed by the City and was sustained. ⁵⁰⁴ The plaintiff not having availed himself of the right to plead over, a judgment for the City was entered and is the occasion of this appeal. It is not alleged that the place of the accident was within the corporate limits of Baltimore, and it is conceded in effect that the explosion occurred, at a point in the river beyond the City boundaries, but the averment that the dynamite was being loaded on the vessel at a location within the jurisdiction and control of the municipality has reference to a provision of the City Charter giving the Mayor and City Council authority to pass ordinances for certain purposes relating to navigation and docking facilities on the river and its tributaries throughout their entire length. These provisions, however, do not purport to confer any power to regulate the loading of explosives in vessels stationed either within or beyond the City limits.

They authorize the municipality to provide by ordinance for preserving the navigation of the river and its tributaries, for establishing lines beyond which no piers, wharves or other structures should be built or extended in the waters mentioned, for improving, cleaning, deepening, surveying and marking their, channels, for removing therefrom anything detrimental to navigation or health, for regulating the stationing, anchoring and moving of vessels, for preventing refuse or material of any kind from being deposited or washed into the waterways, for erecting, maintaining and regulating the use of wharves, bulkheads, piers and piling, for the collection of dockage, wharfage and other charges, for the appointment of such officers and employees as might be necessary to accomplish the objects specified, and for the imposition of fines or penalties for a breach of any ordinance passed in pursuance of the powers thus conferred. (Baltimore City Charter, sec. 6 (8).) It is apparent that these designated purposes do not include the regulation and supervision of the methods employed in the transfer of explosives, except as to the location and movement of vessels engaged in receiving or discharging such ⁵⁰⁵ cargoes. The police power, delegated by the charter, to provide “for securing property and persons from violence; danger and destruction,” and doubtless its general welfare powers under the charter, would enable the City to require suitable precautions to be taken in the disposition of dynamite and other dangerous agencies, but the grant of such authority does not provide for its exercise heyond the corporate area. If, as alleged in the declaration, an ordinance has been passed prohibiting the use of metal hooks in the movement of explosives, such an enactment could not be supposed to have an extra-territorial effect merely because the City has been given the right to legislate for other designated and distinct purposes with respect to the harbor approaches lying outside of the municipal boundaries.

But if it be assumed that the City’s police power to regulate'the disposition of explosives is co-extensive, as to the area of its proper exercise, with the powers specifically granted in relation to the Patapsco Elver and its tributaries, there would still be a serious obstacle to the maintenance of such a suit as the present against the Mayor and City Council. The Charter of the City makes it the duty of the Board of Police Commissioners to enforce the municipal ordinances. (Charter, Sec. 744). It has been definitely held that inasmuch as the police department of the City is controlled by a commission appointed by the Governor of the State, and operating independently of the municipal government, the City is not liable for damages on account of the non-enforcement of its police regulations, except in cases where its own conduct has produced the conditions which caused the injury.

In the case of Taxicab Co. v. Baltimore, 118 Md. 359 , a contractor had left a quantity of building material in the street at night without placing a light to give warning of its presence. The ‘plaintiff’s taxicab collided with this obstruction, and the City was sued, with the contractor, for the damage thus occasioned. A municipal ordinance provided that whenever any piles of building materials were left in the street, a lighted ⁵⁰⁶ lamp or lantern should he placed on them at night so that they could he readily observed. There was a penalty prescribed for the violation of this requirement.

As the City did not authorize the obstruction in question, and as it had nc control over the police department to which the enforcement of its ordinances was comlmitted by statute, the decision in the case was that the suit against the municipality could not be maintained. The same conclusion had been reached upon a somewhat similar state of facts in Sinclair v. Baltimore. 59 Md. 592 . In Altvater v. Baltimore, 31 Md. 465 , a pedestrian was struck and injured by a sled coasting on the street in pursuance of a practice which was so general and frequent as to be a nuisance. While it was the duty of the Mayor and City Council to pass suitable ordinances, as authorized by the charter, for the prevention and removal of nuisances, it was held that since the duty of enforcing such ordinances had been devolved upon an independent police department, the City could not justly be subjected to liability for their non-enforcement.

But the City has been held properly chargeable with responsibility for injuries in eases like Baltimore v. Beck, 96 Md. 183 , where it failed in the affirmative duty of lighting the street on which the accident occurred; and Baltimore v. Walker, 98 Md. 637 , where it negligently located a water pipe on a sidewalk in such a position that it extended several inches above the surface; and McCarthy v. Clark, 115 Md. 454 , where an obstruction was placed on a sidewalk by contractors employed by the City in sewer construction. In the latter cases the injuries complained of did not result from the violation by others of ordinances which were not being actively enforced, but from conditions which the City’s own conduct or dereliction of duty were alleged to have directly produced. Upon the principles applied and illustrated in the cases to which we have referred it would seem to be clear that damages are not recoverable from the municipality by a per ⁵⁰⁷ son injured in consequence of the violation of a municipal ordinance regulating the movement of explosive substances, unless the City itself caused or sanctioned the particular conditions or acts -which produced the injurious results. This would certainly be the rule in regard to accidents of that character within the corporate limits, and we find no justification in its charter for imposing a greater or stricter liability upon it with respect to similar occurrences on the waterways beyond its borders which the charter has placed under its control.

It is not alleged in this case that the City authorized or occasioned the dangerous practice mentioned in the declaration, but the averment is simply that it neglected to enforce its regulations prohibiting the employment of such methods. This is not a sufficient basis upon which to charge the City with actionable responsibility for the accident. There is still another consideration which prevents the acceptance of the theory of liability upon which the suit is predicated. The exercise by the City of its authority to provide for the safety of persons or property, where its corporate or proprietary interests do not require such action, is a governmental function for the non-performance of which it can not be sued, unless such a right of action is given by statute.

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