Mayor of Baltimore v. De Palma Ex Rel. De Palma

Thomas, J., delivered thei opinion of the court. This appeal is from a judgment recovered against the Mayor and City Council of Baltimore and Goddard J. Mat-tingly'for injuries alleged to' have been caused by the negligent and careless manner in which lumber was piled or placed by Mattingly on one of the piers owned by the Mayor’ and City Council of Baltimore.1. The pier in question is Pier No. 6, and is known as a lumber pier. It is located on Pratt Street, which runs east and west, that is to say, it extends from Pfatt Street, in a. southerly direction about fifteen hundred feet, into the river or harbor, and is from, seventy-five to one hundred feet wide.

It is an uncovered concrete pile pier, designed and constructed for the use of merchants who need the use of a pier in their business, and in June, 1918, and for a number of years prior thereto, was devoted by the city principally or exclusively to the use of lumber merchants as a place to. unload and store lumber. The surface of the pier was paved and was divided into sections, and the lumber was so placed or piled in these ¹⁸¹ sections as to leave a driveway of irregular width, in the center of the pier. This driveway extended from the Pratt Street end to the southern or outer end of the pier, and was1 wide enough for two vehicles to pass when employed in hauling' the lumber. The lumber was stored on both sides: of the driveway in piles from seven to ten feet high.

These piles extended from the driveway to the edge of the pier, and the only way to get out on the pier was along this driveway. There were two shacks at the Pratt Street, end, one: used by the clerks of the different lumber merchants and the other by Mr. Mattingly as an office, and there was a sign at the entrance: of the pier, located in the center of the driveway, marked “Pier 6, Pratt Street.” Space on the pier was leased to lumber merchants as a place to store their lumber, and was paid for by them according to the: space occupied. The pier was under thei supervision and control of the chief harbor master of the city, whose duties were to enforce the harbor laws and regulations of the city, and to supervise the collection of charges for the use: of municipal piers. According to his testimony, and the instructions issued by bim, only those persons who- leased space on Pier 6, and those who-“had business: relations with them,” were allowed to go- on that pier, and during the: recent war, under the “Government regulations,” which were enforced as far as possible until after the signing of the Armistice, no one was allowed to go on the pier unless‘he had a pass.

Special instructions had been given, to the assistant harbor master having charge of Pier (i to prohibit boys from going on the pier, and the police force of the city had been requested to assist in the enforcement of this regulation. The plaintiff at the time: of the accident was about ten years of age, and had been told by his mother never to- go on Pier 6, that it was dangerous aud that he might fall in the water or “some lumber might fall” on him. About half past seven o’clock in the evening of June 3rd, 1918, he was asked by Misa Benneburg, a young girl about twenty years, of age, ¹⁸² if he knew where her brother David, a playmate of the plaintiff, was, and he took her out on the pier, where he thought he would find David and a number of other boys playing. According to his testimony, after he found David and the other boys on the pier between the piles of lumber, and pointed them out to D'avid’s sister, he started to go or run home and, as he was passing between the piles of lumber, several boards fell on him and he sustained, according to the testimony of the physician who attended him, a fracture of the left thigh.

He had seen boys on one occasion climb on the piles of lumber, but did not- see them on top of the pile that night, and did not know “whether they were up on the pile or not.” The young girl who went on the pier with the plaintiff testified that they were on the pier at least ten minutes before tire accident happened, that the plaintiff did not climb up on the pile of lumber, that she did not see the boards fall and could not tell whether they fell from the top or side of the pile, that she was between the piles: of lumber where she had gone to see if the boys were there-, and that after she heard the plaintiff scream she found him under some boards. Vincent Yamonico, a witness for the plaintiff, testified that he had been on Pier 6, had seen other persons go> out on the pier, and had seen boys fishing and swimming on the pier; that he went on the pier to see the boats; that he had seen lumber boats and launches tied upi at.the pier, but did not see any there on the day of the accident, and that the only way you could get to these boats was to go along the central driveway and then between the piles of lumber to the side of the pier where the boats were. Vincent L. Palmisano, another witness for the plaintiff, who was also one of the plaintiff’s counsel, testified that he had had occasion to go on Pier 6 “and to gp on submarines that had landed on the west side of it,” that a great number1 of persons went to see the submarines while they were at the pier, that both sides of the pier were used for launches and boats, and that people landing from these boats would have ¹⁸³ to go through the lumber piles on the pier, that he went on the pier “out of idle curiosity” to see the submarines, and was not invited to do so by any city official. On crosgretxamr ination he said that the submarine Deutschland was at Pier 5, which was leased by the Government, and that he did not know that any submarines came to Baltimore before the Armistice was signed in November, 3918.

In addition to the testimony of the chief harbor master to which we have already referred, he futher testified that lumber vessels were the only vessels that docked at Pier 6, and that passenger launches were not permitted at that pier, that when you look at Pier 6- from Pratt Street you see nothing but wood, and that “there was no sidewalk down there.” John S. Mister, an officer of the police force of the city, testified that for several years; including June, 1918, he was in charge of a post comprising Piers, 4, 5 and 6; that Pier 6 was used for the storage of lumber; that he was on the pier from four to seven times a day, and that during the summer season when the children were out of school he was there more frequently than at other times because he had trouble in keeping them off the pier; that they would sometimes, go there to swim off the end of the pier; that, he had arrested from forty to fifty; that he had instructions from the marshal and harbor master “to keep people off the pier that did not belong there,” and that whenever' he saw children on the pier he drove them off; that lumber boats landed at Pier 6, but that pleasure boats landed at Pier 4 and at tbe city pier at the foot of Calvert Street. The testimony of Mr. Mat-tingly and his manager, Albert H. Lee, a,si to- the use of Pier 6, the class of persons who visited the pier, and the enforcement of the rule prohibiting children from going on the pier, was to the same effect as, the testimony of the harbor master and the police officer. The plaintiff called in rebuttal Mr. James E. Thrift, who was, comptroller of the city at the time of the accident, and when he was asked as to “his determination of the use to ¹⁸⁴ which, any pier could be put” ha replied, “not exactly because some piers were specifically dedicated by ordinance to the storage of lumber,” and that Pier 6 “was for the purpose of the storage of lumber, * * * and was known as a lumber pier.” "When asked, “Was not Pier 6 confined in its use exclusively to the lumber trade and to persons having business in connection with the lumber’ trade?” ITe replied, “I think that is true; I do not recall any other use to which Pier G was put.” When, asked, “Do you know whether that was the only purpose that carried people to this pier ?” He said, “I can only answer that by saying that I do not know of any reason anybody should not have gone on the pier so long as he was not committing any nuisance or doing anything unlawful.” On cross-examination, he said “that Pier G was known as a lumber pier but if boats came in there with commodities for merchants in the city they could unload over that pier upon payment of a wharfage or dockage charge; that it was not a playhouse; that it was not like the Broadway Recreation Pier; that it was a business place.” In the case of Maenner v. Carroll, 46 Md. 212 , one of the counts in the declaration alleged that the defendants were the owners of an open and uninelosed lot within the limits of the city, and that persons were in the habit of passing over the same; that the defendants cut on said lot, “in a dangerous and exposed portion thereof,” a deep excavation, and left the same in a dangerous condition, and liable to injure persons in passing over the lot, and that the plaintiff while passing over the lot at night fell in said excavation and was injured. In holding this count bad on demurrer, Judchg Alyey, speaking for the court, said: “To constitute a good cause of action, in a case of this nature, there should be stated a right on the part of the plaintiff, a duty on the part of the defendant in respect to that right, and a breach of that duty by the defendant, whereby the plaintiff had suffered injury.

Here there is nothing of the sort shown. All the facts alleged in this count may be time and yet the plaintiff would have no ¹⁸⁵ right of action against the defendants. The fact that persons were in the habit of passing over the lot, gives the plaintiff no right to do so; and unless there was such a, right there was no breach of duty on the part of the defendants in cutting and leaving open the excavation.” Applying these principles to the facts in the ease at bar, it would seem clear that the plaintiff has failed to establish any liability on the part of the city or Mattingly for the injuries he sustained. The appellee contends that Pier 6 was one of the public highways of the city, and that therefore the city was under obligation to use reasonable care to keep it in a “condition to be safely traveled.” Assuming that a public wharf, so far as liability for- negligence is concerned, should be regarded as a public highway, there is no evidence in this case to show that Pier 0 was a public highway.

The mere fact that the city owned the pier would not make it a public highway, especially where, as in this case, it was not open for, or devoted by the city to, the use of the public generally as a highway, and the general public did not in fact use it as such. In 15 R. C. L., p. 14, it is said: “A highway is a way open for the public at large without distinction, discrimination or restriction, except such as are incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof,” and it ia stated on page 3 5 of the same volume that “the test is whether it is an open public way or one for the exclusive: benefit of an individual or certain individuals. It is the right of travel by all the world, * * * which constitutes a way a public, highway. * * * If it is open to all who desire to use it, it is a public highway.” We do not understand the appellee as contending that the city had no right or authority to devote Pier (5 to the exclusive use. of lumber merchants, and other merchants of the city, as a place, to unload and store their lumber or to unload a cargo of their goods, and to restrict its. use to such merchants and those having business, dealings witli them. This right of the city being1 conceded, as it must ¹⁸⁶ be, it follows that under the principle announced in Maenner v. Carroll, supra; Benson v. Baltimore Traction Co., 77 Md. 535 ; Mergenthaler v. Kirby, 79 Md. 182 , and Stansfield v. C. & P. Tel.

Co., 123 Md. 120 , and many other eases to the •same effect, the duty of the