Reed v. Mayor of Baltimore

Johnson, J., delivered the opinion of the Court. Della Reed, appellant herein, brought suit in the Balti ¹¹⁷ more City Court against the Mayor and City Council of Baltimore, Gregorios Diacamacos, Basil Dezes, and Paraskevy Dezes, tenants, and Nicholas Karangelen and Peter Kavakos, subtenants, of the first-named defendant, to recover damages for personal injuries sustained by her while upon one of the walks or passageways of Cross Street Market in Baltimore City. The declaration alleges that on July 9th, 1935, Diacamacos, Basil and Paraskevy Dezes, were tenants, while Karangelen and Kavakos were subtenants, of the municipal corporation of certain stalls in Cross Street Market, a public market of the municipality, bounded by Light, Charles, Cross, and Weyler streets, said stalls being located on the west side of Light Street and adjacent thereto; that they were used by defendants for display and vending of foodstuffs to the public for profit, Karangelen and Kavakos yielding and paying unto Diacamacos, Basil and Paraskevy Dezes, a rental for the use and hire thereof, the latter in turn yielding and paying unto the Mayor and City Council of Baltimore a rental therefor; that for the purpose of purchasing the commodities displayed therein, the public was invited to use the footways and passageways of the market, one of such walks so used by the public being on the east side thereof, and running north and south, the said stalls abutting thereon; that it was the duty of defendants to keep said walk in condition for public travel, but in violation of said duty and with full knowledge thereof, they negligently suffered the same in front of said stalls to be and remain in an unsafe and dangerous condition to persons traveling thereon, in that, prior to and at the time of the ihjuries complained of, they permitted a raised platform or obstruction to remain in said passageway, and upon the date aforesaid, while plaintiff, exercising due care, was lawfully in Cross Street Market and traversing the walk in front of said stalls, she was caused to strike against and into a platform or obstruction and to fall to the bed of the walk, as a result of which she sustained permanent injuries. General issue pleas having been filed by each group of de ¹¹⁸ fendants, issue was joined thereon, and the case came on for trial.

At the conclusion of the testimony offered on behalf of the plaintiff, one of the defendants, the Mayor and City Council of Baltimore, offered five prayers, numbered A, B, C, D, and E, by each of which it sought to have the case withdrawn from the consideration of the jury. The court granted its B prayer, instructing the jury that there was no evidence in the case legally sufficient to prove any negligence on the part of the Mayor and City Council of Baltimore or for which it was responsible, and, therefore, the plaintiff was not entitled to recover. The action of the trial court in granting this prayer raises the sole exception found in the record. The court did not rule on its remaining prayers, and, although it denied the prayers offered by the other defendants, these need not be considered, since 'after the case was withdrawn from the jury’s consideration by the granting of the city’s B prayer, the plaintiff submitted to a non pros, as to the remaining defendants.

Judgment on the jury’s verdict in favor of the appellee was subsequently made absolute, and from this the present appeal is taken. It, therefore, becomes necessary to consider the evidence offered by the plaintiff with a view to determining whether the same was sufficient to support a finding of primary negligence as against the appellee. Preliminary to this inquiry, however, we deem it important to make reference to certain legal principles which we feel are determinative of the status of the parties hereto. It seems clear that appellee, in owning the market and deriving a revenue from its stalls by way of rentals, was acting within its proprietary or private character, and would, therefore, be liable for negligence, assuming that, under similar facts and circumstances, liability would exist as against an individual.

Mayor and Aldermen of the City of Savannah v. Cullens, 38 Ga. 334; Barron v. City of Detroit, 94 Mich. 601 , 54 N. W. 273 ; 18 R. C. L. “Markets,” sec. 10; 4 Dillon Municipal Corporations, p. 2915; McQuillin, Municipal Corporations (2nd Ed.), p. 2848; Zboyan v. Newark, 104 N. J. Law, 258, 140 A. 225 . ¹¹⁹ Moreover, since the purpose of the market is for public use, if the city has reserved to itself the power of controlling and keeping open the passageways therein, it would be liable to any one who, while using due care, sustained an injury because of the neglect or default of the city in keeping such passageways reasonably safe for public travel. Its duty to the public using the market is in this respect comparable to that of a department store owner toward his patrons and customers who are invited to enter it for the purpose of dealing. In such a case, the appellant would have been an invitee of the city, to whom it owed the duty of keeping its walkways in a reasonably safe condition for public travel. Fulton Bldg.

Co. v. Stichel, 135 Md. 542 , 109 A. 434 ; Bethlehem Steel Co. v. Variety Iron & Steel Co., 139 Md. 313 , 115 A. 59 ; Benesch & Sons v. Ferkler, 153 Md. 680 , 139 A. 557 ; 3 Cooley on Torts (4th Ed.) vol. 3, sec. 440. If believed by the jury, the testimony offered by the plaintiff was sufficient to enable it to find that Cross Street Market was owned by appellee, and the market building extended to the westerly curb of Light Street, the market being equipped with numerous stalls which the city leased to various persons from which to sell foodstuffs. Many of these stalls are located in groups of four, and between these groups are passageways for pedestrians, while others are located immediately west of the curb line on the west side of Light Street longitudinally, in groups of two each, and between these two groups is a sidewalk or footway from five to six feet in width, which might be described as a continuation of the sidewalk on the west side of Light Street. Among the pairs thus grouped are stalls 295> and 126 and stalls 125 and 210.

The two pairs are separated by a short passageway between the curb and the last-mentioned footway. Stalls Nos, 125,126, and 295 were leased by the city to Diacamacos, Basil and Paraskevy Dezes, at an annual rental of $46 each, and by the latter subleased unto Karangelen and Kavakos, who on the date of the plaintiff’s injuries were occupying them, the rear thereof being adjacent to the west curb of Light ¹²⁰ Street, while they fronted on the passageway previously mentioned. There were also windows in the rear of the stalls on Light Street. The passageway is of ordinary cement floor construction and was not leased by the city, which by section 6, subsection 15, of article 1 of its Charter (1927) is given power and authority to erect, regulate, control, and maintain markets and stalls within its limits, and to sell or lease the same, and in pursuance of this authority it has enacted ordinances, in which, inter alia, it is provided in article 27, section 61, of its Code, that “the said avenues (in the public markets) “and all other avenues or footways of said market-houses shall be kept free and clear of and from all obstructions whatsoever, under a penalty of one dollar for each and every offense.” The city markets are under the supervision of a market superintendent, a municipal official, and a market master is stationed at the Cross Street Market and maintains an office therein.

Apparently these employees recognized it as their duty to enforce the regulation above mentioned, for the superintendent of markets testified that the tenants of market stalls were not permitted to place anything within the passageways, and he further stated with reference to the regulation that they ordered obstructions removed daily, but a good many put them back; that a market master, having so many things to do, could not be blamed if such obstructions were replaced in the passageways after he left. On July 9th, 1985, at 2:30 in the afternoon, a regular market day, appellant went to 'Cross Street Market, and while there purchased a soft drink at stall 126, and on leaving that stall entered the walkway previously described as being a continuation of the westerly sidewalk of Light Street, and started in a northerly direction toward Weyler Street. Wihile proceeding thereon near stall 125, she tripped over a platform or obstruction three feet long, two and ■ one-half to three inches in height, and eighteen inches wide, which was constructed of ordinary board and lying flat on the. cement walkway, its entire ¹²¹ length being next to stall 125. This platform was placed there by the operator of the market stall, and used by him to stand upon when selling from the stall, and, while not attached to the floor, it had been in the passageway daily on market days for a period of four or five years, and, by such use, had taken on the same color as the walkway upon which it was placed.

The plaintiff was not unfamiliar with the market and had frequently visited it previously. In describing her movements and contact with the platform she stated: “I left the milkshake place and walked three or four steps after leaving the milkshake place toward Weyler Street. I was walking toward Weyler Street, and I just took three steps when my