McCarthy v. Clark

Urner, J., delivered the opinion of the Court. ■ The appellee was seriously injured by stumbling and falling at night oven an iron manhole frame temporarily deposited on a sidewalk in Baltimore City and intended for use in connection with a system of sewers then in course of construction. The suit was against the municipality and McCarthy & Company, the contractors engaged in the work under employment by the city, and the declaration alleges negligence on the part of the defendants in placing the frame upon the pavement and in permitting it to remain there for a long space of time without light or signal of any kind to warn the plaintiff of its location. A judgment upon verdict was recovered by the plaintiff, and the defendants have appealed. The record contains fifteen bills of exception, of which fourteen relate to rulings of the Court below on the admissibility of evidence and one to its action on the prayers.

There are certain general questions of liability involved in the exceptions, and these will be first considered. Independently of the theories common to both defendants, the city claims exemption from responsibility for the accident upon the ground that the sewer construction was in charge of independent contractors and that the frame which injured the plaintiff was deposited by them, without the knowledge of the city officials, at a point remote from the ⁴⁵⁸ line of the work and where the representatives of the municipality could not have anticipated that it would be placed, and that, therefore, the rule of respondeat superior does not apply. It is further insisted that the city is not liable merely on account of its omission to remove or guard the obstruction because, as it is asserted, the exclusive authority for such purposes is vested in a police department over which the municipality has no control, and its own duty has been performed and its power exhausted by the passage of prohibitive and punitive ordinances on the subject. In support of the proposition last stated, the cases of Altvater v. Baltimore, 31 Md. 462 , and Sinclair v. Baltimore, 59 Md. 592 , were cited.

It was held in these cases that the City of Baltimore was not liable to persons injured by nuisances on the public streets caused by agencies other than those of the nmnicipality for the reason that under the laws then in force the sole power of abating such nuisances was conferred by the law upon the board of police commissioners of the city. Whether this principle would be applicable under the existing provisions of the City Charter and the decisions of this Court in Baltimore City v. Beck, 96 Md. 191 , and Baltimore City v. Walker, 98 Md. 637 , it is not necessary for us to determine, because it is obvious that such a doctrine could not be applied to a case in which the municipality was itself instrumental in creating the occasion for the obstruction and because upon the facts now before us we are of the opinion that the city must be held to sustain such a relation to the cause of the accident. It is not entitled to be exonerated on the ground that the particular acts alleged to constitute negligence were done by independent contractors beyond the scope and-intent of the work committed to their charge. 5 The plans for the work in connection with which the manhole frame was to be used indicated a line of sewer along the east side of Broadway, a wide avenue with a central parkway. The point at which the frame was deposited and the accident occurred was on the west side of the avenue and about seventy- ⁴⁵⁹ five feet south of Preston street.

The sewer was not actually constructed through this block according to the location contemplated by the original plan, another course parallel to Broadway in this locality having been subsequently adopted. It was testified by the employee who delivered the frame that it was placed on the west side of the avenue because this was a more convenient point on account of the pavement on the east side being to some extent blocked with pipes. The agreement between the city and the contractors provided' that the work should be done under the general supervision of the city engineer who was authorized to direct the order in which and the points at which it should be prosecuted. It was stipulated that the contractors should immediately comply with all the instructions given by the engineer.

It appears, therefore, that the placing of the frame at the point of the accident, was in connection with construction work in which the city was interested and over which it reserved' control. In view of such conditions we are unable to hold the city exempt from, liability as a matter of law upon the grounds suggested. The principles which govern the case before us are settled by the decisions of this Court in Thillman v. Baltimore City, 111 Md. 131 , and Baltimore City v. O'Donnell, 53 Md. 110 . In the former case an independent contracting company, employed by the city to grade, pave and curb a street, changed the condition of an alley opening into the street as a result of which surplus water flowing in the alley, instead of passing off into a sewer as it had pre•viously done, flooded the cellar of plaintiff’s house.

It was provided in the contract between the contractors and the municipality that the work should be done under the inspection of the city engineer. The evidence was held legally sufficient to show that the change in the alley was made by the contracting company in connection with the performance of its contract to pave the street, and it was decided that the city as well as the company was liable for the resulting-injury. In O'Domiell's case an agent of a contractor, employed by the city to repave a street, caused a rope to be ⁴⁶⁰ suspended to prevent travel on it while the work was in progress. A lamp was attached' to the rope as a warning, hut it was immediately broken and extinguished by stones thrown by boys.

The employee in charge took the lamp to his home to repair it, but did not replace it the same night. While he was absent "the plaintiff in attempting to drive his hack up the street was injured by coming in contact with the rope. Hone of the city officials knew that the rope had been stretched across the street. The city nevertheless was held to be liable.

In each of the cases cited it was decided to be the duty of the city to have its work done in such manner as to avoid injuries to the public, and that it could not be relieved of this' obligation by committing the work to an independent contractor. In the TMUman caseas in the present, there was the additional consideration that the city had stipulated for the supervision and control of the work by its own engineer, and it was stated as a general rule, which we find clearly applicable here, that where an .employer retains control of the work he is not relieved of liability by reason of the fact that he is operating through the agency of a contractor. In this case the city sought to have the jury instructed to find' a verdict in its favor upon the theory of non-liability which we have discussed, but its prayer to that effect was rejected by the Court below and for the reasons stated we must concur in the ruling. The. proposition upon which- the contractor defendants placed most reliance was presented in the-third prayer, offered separately on their behalf, in which the Court was asked to instruct the jury that if they found from the evidence that these defendants caused a light to be placed on the manhole frame in question on the evening of the accident and prior to its occurrence and that subsequently the light was stolen or removed by some person unknown, and that the defendants did not know of its removal, and that they made reasonable efforts to maintain a light on the frame on the evening of the ⁴⁶¹ accident, then they were not legally guilty of any negligence, and the verdict must be in their favor.

There was evidence' tending to show that the contractors had caused a lamp to be placed on the frame about half past five o’clock on the evening of the accident. Their employee passed that way about a quarter of seven and found the lamp still lighted and in position. His next visit to this point was at a quarter past eight, and the lamp was then gone. The accident occurred about seven o’clock.

It was contended that this evidence was legally sufficient to support the theory of the prayer and that its rejection by the Court below constituted reversible error. If the only negligence charged in this case related to the maintenance of a light on the manhole frame during the hours of darkness, we might accept as sound and just the principle which the prayer under consideration invoked. The difficulty, however, in the way of granting such an instruction under the pleadings and evidence in the present record is that there is a distinct issue as to whether in placing and keeping the frame on the sidewalk, at the point and in the position indicated by some of the witnesses, the defendants were guilty of negligence. The prayer proposed to instruct the jury that if the defendants were not negligent in their efforts to keep the lamp in place and lighted they could not be found to have been negligent in any respect.

Such an instruction could not have been granted without disregarding the preliminary question of negligence to which we have referred. If the defendants did not observe due and reasonable care in the selection of the place and position for the deposit of the frame during the prosecution of the work, if in fact it was so located as to he needlessly dangerous to pedestrains, then the liability of the defendants could not justly he said to be commensurate merely with an obligation to make diligent efforts to avoid the consequences naturally to he anticipated from such negligence. Their responsibility-could not be discharged simply by the use of due care to maintain the light if there was no reasonable necessity to have ⁴⁶² the obstruction at all in the position in which it was placed. Their duty was to “deposit the material in a reasonable place,” as well as to “place guards or give reasonable precautionary signals to warn the public.” Sinclair v. Baltimore City, supra.

The record here shows, as already stated, that the manhole frame over which the appellee fell was deposited on the west side of the street, opposite the intended course of the sewer. It was testified by the contractors’ material man that the frame was delivered at the point of the accident about October 18th by the supply company from which the contractors were obtaining this class of material for the work. He stated that the frame belonged on the east side of the street and that nobody told the supply company to put it on the west side. He learned on the following day of the location of the frame and placed a light on it every night from October 24th to the last week in November.

The manager of the sales department of the supply company testified that the frame was supposed to go on the east side of Broadway and might possibly have been placed there, but as the pavement there was partially blocked with sections of terra cotta pipe it was more convenient to place it on the other side. He described the frame as being three feet two inches in diameter over all at the bottom, two feet at the top, and nine inches high. It had a flange around the bottom about six inches wide and three-eights of an inch thick. The flange represented practically the difference between the upper and lower diameters just mentioned.

There was a cover adjustable to the top of the frame, and both parts were painted black. The total weight was four hundred and twenty-five pounds. There was evidence adduced by the plaintiff tending to show that the frame lay on the pavement about a foot inside of the curb, with the flange uppermost. It was with the flange that the plaintiff testified she came in contact as she was passing along the sidewalk.

On behalf of the defendants there was testimony to the effect that the frame was in proper' position with the flange down and that it' extended ⁴⁶³ over the curb. It is obvious that the two positions thus indicated represented a material difference in the extent of the interference liable to be caused by the frame to public travel bn the pavement. In the latter position the flange would foi-m no part of the obstruction, and with the frame extending over the curb there would be very slight probability of its constituting any impediment whatever to the free use of the sidewalk. In the former position, however, it would form an obstruction three feet wide extending to a point on the pavement four, feet from the curb and would be a serious menace to the safety of pedestrians.

As there was evidence from which the jury might find that the defendants without reasonable necessity kept this large and heavy frame on a