Mayor of Hagerstown v. Klotz

Schmucker, J., delivered the opinion of the Court. The appellee in this case instituted an action against the appellant for damages for an inj ury resulting from being struck and knocked down by a rapidly moving bicyclist on a public street in Hagerstown. The appellant demurred to the narr. and its demurrer having been overruled, filed pleas and went to trial upon the issue joined thereon, and the verdict and judgment being against it, appealed. The record contains no exceptions to the Court’s action upon the evidence or its instructions to the jury, and the main question therefore presented for our consideration is whether the declaration stated a good cause of action.

The declaration alleges the incorporation of the appellant and that it was vested by its charter with control over its streets and was given full power and authority to prevent, suppress, re ⁴³⁹ move and abate all nuisances and obstructions thereon, and for the purpose of carrying out its powers and for the preservation of the peace and good order of the community and the protection of the lives and property of its citizens, to pass and enforce appropriate ordinances. That in the exercise of the powers thus conferred on it the appellant, sometime prior to the happening of the injury complained of, passed an ordinance to regulate bicycle riding within its corporate limits by which it was provided that it should be unlawful for any person to ride a bicycle at an immoderate speed on its streets, and a fine was imposed for a violation of the ordinance. That by virtue of the power and authority conferred upon the appellant it became its duty, not only to pass such ordinances as were necessary to protect the lives and limbs of its citizens and prevent, suppress and abate all nuisances and obstructions as aforesaid, but also to exercise all reasonable care and diligence in the enforcement of the same. The declaration alleges further that the appellant negligently, carelessly and wrongfully failed, refused and omitted to enforce the provisions of said ordinance ; that the provisions were negligently permitted to remain and be unenforced so as practically to be a dead letter, although immoderate bicycle riding, trials of speed between riders of bicycles and racing of bicycle riders upon the streets of Hagerstown had become and was at the time of the injury complained of, and for sometime prior thereto had been, a nuisance upon that portion of West Franklin street, between North Potomac street and Walnut street—a menace to the lives and limbs of the citizens of said Hagerstown traveling along, upon and across said West Franklin street at its intersection with said North Jonathan street, as well as at other places on said portion of West Franklin street; that on divers days and at divers times, both in the day time and after night, immoderate bicycle riding, trials of speed and racing between bicycle riders occurred on said portion of West Franklin street openly, publicly and notoriously, and that the appellant negligently, carelessly and wrongfully failed, refused and omitted to enforce the provisions of said ⁴⁴⁰ section three ; that by reason of the failure of the appellant, the provisions of said ordinance became, and were treated and •considered by persons riding bicycles on said portion of West Franklin street as a dead letter, or an ordinance the provisions •of which could be violated with impunity.

The declaration further alleges that on the 5th day of August, A. D. 1899, the plaintiff, whilst in the exercise of due care and caution on his part, was crossing said West Franklin street at its intersection with said North Jonathan street, and whilst so crossing was struck and knocked down by a certain person or persons unknown to the plaintiff, who were then and there riding at an immoderate speed along and upon said portion of West Franklin street at its intersection with said North Jonathan street, by reason oí the carelessness, negligence, omission and default of the appellant in the premises; that by reason of such carelessness, negligence, omission and