Mayor of Baltimore v. State

Mitchell, J., delivered the opinion of the Court. The appeal in this case is from a judgment entered in the Baltimore City Court, in favor of the equitable plaintiffs, the father and mother of William Wallace Ahrens, an infant slightly over ten years of age, for the loss of services of said infant, by reason of his death; the immediate cause of which was that of drowning. The record shows that on May 21st, 1933, the deceased, accompanied by several other boys, journeyed to Gwynns Falls, a natural stream flowing through Gwynns Falls Park, one of the parks maintained by the City of Baltimore, in the interest of the public health and welfare of the inhabitants of the city. The boys were also accompanied by a Mr. Bailey, a Sunday school teacher, who suffered the loss of his own life in a heroic effort to save young Ahrens from drowning.

The testimony indicates that Gwynns Falls is a narrow stream generally shallow, but that at one point along its course, designated as Twenty Foot Rock, there is a high natural rock, opposite which the water suddenly reaches a depth of from fifteen to twenty feet. At that point the stream is approximately from thirty to thirty-five feet wide, and the length of the deep section is ap ⁶²¹ proximately fifty feet. Above the rock the stream is not more than two feet deep, and the descent from shallow to the deep part of the stream is sudden. At Twenty Foot Rock the entire party halted, and it was here that some of the boys doffed their clothing and began swimming in the deep hole.

William Wallace Ahrens did not enter the stream at first, but later, while the other boys were swimming, he took off his clothing and waded in the shallow part of the stream, toward the pool. As to whether he intended to enter the deeper part of the stream and join his playmates, or whether he accidentally slipped from the rock nearby, the evidence is conflicting. However, it is evident that he could not swim, as immediately upon getting into deep water he was seen struggling, and heard crying for help. It was in this sad plight that Mr. Bailey noticed him, and plunged in the pool in a futile attempt to save the boy, and at the sacrifice of his own life.

It is conceded that the City of Baltimore owns and maintains Gwynns Falls Park, as one of its parking units. Section 90 of the Charter of Baltimore City creates a department of public parks and squares of the Mayor and City Council of Baltimore, and provides that the head of said department shall consist of a board of park commissioners composed of five members; section 91 of said Charter provides that the board of park commissioners shall have charge and control of all public parks, squares, boulevards leading to parks, springs, and monuments belonging to and controlled by or in the custody of the Mayor and City Council of Baltimore; and under the provisions of section 92 of the above Charter, the board of park commissioners shall have power, from time to time, to make such rules and regulations for the government and preservation of order within the parks, squares, springs and monuments belonging to, controlled by, or in the custody of the Mayor and City Council of Baltimore, as it may deem expedient. In pursuance of this latter authority, rule 15 of the rules and regulations of the board of park commissioners, ⁶²² promulgated on April 4th, 1928, and in force at the time of the death of the deceased, provides: “No person shall foul or pollute in any manner, any spring, bathing-pool, wading-pool or water course, or bathe or wash in any lake, pond, spring or fountain, nor start the water flowing from any water supply or spigot, other than at a drinking fountain or place provided as a watering place for people or animals, under a penalty of a fine. * * *” The appellant, the Mayor and City Council of Baltimore, contends that the appellees’ son, when he entered Gwynns Falls for the purpose of wading and swimming, became a trespasser, or at most a licensee, notwithstanding the fact that he may have been an invitee to Gwynns Falls Park, and that it is not incumbent upon the municipality to fill in or inclose the deeper sections of a natural stream against those who disregard its regulations and enter therein. On the other hand, it is contended by the appellees that warnings of the inherent danger of deep water should have been posted about the pool, or that it should have been inclosed, filled in, or guarded.

It is shown that at least three prior drownings had occurred at this same pool during the period of five years prior to the death of young Ahrens and his Sunday school teacher, and that nothing had been done by the park board to protect the public from further loss of life at an obviously dangerous point. In other words, the appellees base their right to recover upon the alleged negligent act of omission on the part of the appellant, in permitting the pool at Twenty Foot Rock, in one of its public parks, to remain in its natural state, without official warning as to its danger, without reducing the depth of the pool, and without mechanical or police protection in behalf of public safety. There are seven exceptions found in the record to rulings of the learned judge who presided at the trial court; six of which deal with the admissibility or rejection of testimony, and one of which deals with the rulings on prayers. All but one of the exceptions to rulings on ⁶²³ evidence were abandoned in this court, and, for the purposes of the conclusion which we have reached, it becomes unnecessary to pass upon the unabandoned exception in the first above group.

Briefly, the vital issue in the instant case is whether or not the maintenance, control and operation of Gwynns Falls Park, as one of the public parks of Baltimore City, under the authority hereinbefore detailed, is the exercise of a governmental function? If that issue be determined in the affirmative, it will necessarily follow that there was error in the rejection by the trial court of the appellant’s demurrer prayers E and G, which are specially directed to said issue. The liability of the defendant (Mayor and City Council of Baltimore) must be determined under a true interpretation of the Constitution and statutes under which it was created and its powers granted and duties imposed. Under section 1 of the City Charter, it is provided that the appellant may sue or be sued; and the Charter further provides that the executive power of the appellant, is vested in the Mayor, the departments, subdepartments,, municipal officers not embraced in a specified department, and such special commissions or boards as are provided for under by-laws or ordinances not inconsistent with the Charter of the appellant.

Section 31, Charter and Local Laws of Baltimore City, 1927. Among these departments, as heretofore indicated, is that of the department, of parks and squares, which is composed of the board of park commissioners. In the recent case of Baltimore v. Eagers, 167 Md. 128 , 173 A. 56, 59 , in passing upon facts wherein the plaintiff was killed while walking along a street or highway leading through a public square, by reason of the carelessness of employees of the defendant, engaged in removing a large tree from the square, this court, speaking through Judge Parke, said: “If the neglect or wrongful act was in the course of the performance of a purely governmental duty which ⁶²⁴ had been imposed upon the municipality as a governmental or public agency by legislative enactment, there would be no liability in tort in favor of an individual who had been injured. This doctrine has general recognition, and various grounds have been assigned in its support, notably, that, at common law, no civil action would lie against a municipal corporation for the neglect of a public duty imposed upon it as the agent of the public by a general law for the benefit of the public generally, and from the performance of which the municipal corporation would receive no profit or special advantage.

Dillon on Municipal Corporations (5th Ed.) sec. 1643; Gold v. Baltimore 137 Md. 335 , 112 A. 588 ; Wallace v. Baltimore, 123 Md. 638 , 91 A. 687 . “If, on the contrary, the power given and the duty enjbined relate to the local or special interests of the municipality, and be imperative, and not discretionary, legislative, nor judicial, and the wrongful act is done in the performance of such a duty, then the act is said to be done in the private or corporate capacity of the municipality as distinguished from an act done in its political and governmental capacity as an agency of the state, and the municipality must answer civilly for the negligence or want of skill of its agent or servant in the course of his employment, if the wrongful act result in injury to another, who is free from contributory negligence. Dillon on Municipal Corp. (5th Ed.) secs. 1645, 1646, 1651, 1665, 1666, 1668; Consolidated Apartment Home Co. v. Baltimore, 131 Md. 523, 528-536 ; Gutowski v. Baltimore, 127 Md. 502, 508-510 , 96 A. 630 ; Harris v. Baltimore,