Mayor of Baltimore v. Brannan

Tuck, 3., delivered the opinion of this court. The case before us is, substantially, as follows: Ordinances were passed by the defendants for rebuilding the Bel-Air market house, and for the erection of a temporary one for the accommodation of the public, until the new one should bo completed. After the building had been taken down, and the temporary one put up, and in use as a market, a hole was dug within the limits of the old house by persons who had no business there, into which the plaintiff fell, during market hours, on the night of October 8th, 1853. How this happened does not appear: the witnesses speak of him as in the hole when they first saw him.

That he was seriously injured is shown by the proof. The hole was about twenty feet from a flat outside the old market house, but within the space taken for the new one, where country people were accustomed to sell vegetables, and were selling at that time, against the orders of the market-master, who had warned them off. At the time of the accident the contractors had taken down the old house, and by means of a plow, had indicated the outlines of the new one, wr ich included ²³⁶ the flat, and placed along the furrow granite stones for the work, which, with lumber placed at the end next Gay street, about thirty feet from the hole, were intended to serve as obstructions to keep the people off. The temporary market had been put up and in use since the 12th of September.

We have no idea that this suit can be maintained, on the ground of negligence on the part of the defendants’ agents in removing the old house. If that were the only proposition, it might be answered, that the owner or person in charge of property undergoing repairs, or being rebuilt, is not responsible for damage to one who voluntarily goes amidst the ruins, having no business there. He cannot ascribe to the supposed negligence of others, that which results from his own imprudence. But it is contended that, by force of the charter—1796, ch. 68, sec. 9—it was the duty of the city'' authorities to prevent, and remove nuisances of this kind.

It is true that, in the ease of The Mayor, &c., vs. Marriott, 9 Md. Rep., 160 , it was decided, that the charter placed the Corporation of Baltimore, in this regard, upon the same footing which is held by individuals and private corporations; and as the defendants had authority “to erect and regulate markets,” as well as to “prevent and remove nuisances,” it would follow that they had assumed the duty, and the consequences of negligence in its performance, of keeping the established markets free from nuisances. This liability, however, could not be enforced where the party injured had not observed ordinary care and diligence; nor where he met his accident at a place, which, at the time, was not an authorized market place, or where buying and selling were carried on against public authority. When the old house was taken down the ground ceased to be a market place, and the fact of its removal, and the erection of a temporary house, indicated to the public that they could not go upon the old site to sell and buy, with the same privileges and indemnity, in respect thereto, as before the established