Taxicab Co. v. M. C.C. of Baltimore

Thomas, J., delivered the opinion of the Court. The declaration in this case, which was brought by the Taxicab Company of Baltimore City against L. F. Johnson, L. F. Johnson, Inc., Christ Methodist Protestant Church and the Mayor and City Council of Baltimore, alleges that the “said L. F. Johnson, L. F. Johnson, Inc., and Christ Methodist Protestant Church, and each of them, placed and allowed to remain for a long time a large quantity of' sand and other building material in the public highway of Baltimore City, known as North avenue, at or near its intersection with Retreat street; that said sand and other material were placed so as unnecessarily to obstruct the highway and in an improper and negligent manner, and during the night time were left without a light or signal to indicate danger as required by law, or City Ordinance, and in the night time of January 10th, 1911, said defendants negligently permitted said- obstruction to remain on and upon said North avenue, at or near the intersection aforesaid, and at said time, said defendants negligently permitted said North avenue, at or near said intersection, to he and remain in had repair and condition by reason of the said obstruction, and said defendants at said time negligently permitted said North avenue at said intersection to remain in an unsafe condition for ordi ³⁶¹ nary travel by reason of said obstruction, in consequence whereof a cab of the plaintiff, being operated by the agents or servants of the plaintiff, at said time passing along Forth avenue, at or near said intersection, collided with said obstruction and was thereby violently diverted from its course and- thrown with great violence against a telegraph pole, and as a consequence of said accident the plaintiff’s cab was greatly damaged and the plaintiff suffered great loss; and the plaintiff says that the damages as aforesaid were directly caused by the negligence and want of care of the defendants and without fault or want of care on the part of the plaintiff, directly thereto contributing.” The Mayor and City Council of Baltimore pleaded that “it did not commit the wrong alleged,” and the evidence shows that, on the 10th of January, 1911, between twelve and one o’clock at night, one of the taxicabs of the plaintiff, while being operated by its servant or agent along Forth avenue, one of the streets of Baltimore City, and going west at the rate of between eight and ten miles an hour, struck a pile of sand, which had been placed and left in the street without a lighted lamp or lantern to warn persons using the street, by a contractor or workmen engaged in repairing or erecting Christ Methodist Protestant Church, and was suddenly diverted from its course against a telegraph pole and injured. At the close of the plaintiff’s testimony the Court below granted a prayer to the effect that there was no evidence in the case legally sufficient to entitle the plaintiff to recover against the Mayor and City Council of Baltimore under the pleadings. It appears from the docket entries that the case was dismissed by the plaintiff in open Court as to L. F. Johnson, Inc., and Christ Methodist Protestant Church, and that there was a judgment of non pros as to L. F. Johnson, and this appeal is from a judgment for costs on the verdict in favor of the City. ³⁶² Even when viewed in the light most favorable to the plaintiff, the only charge in the declaration against the Mayor and City Council of Baltimore is that it permitted the sand to remain in North avenue at night without a light to warn persons using the street of danger, and the evidence fails to show that it was placed there by anyone employed by ox-engaged in work for the City.

The primary question, therefore, is, can the City be held liable for injuries alleged and shown to be dxxe to the fact that the obstruction was left in the street without a light or signal of danger ? In the case of Baltimore v. Marriott, 9 Md. 160 , decided in 1856, where an action was brought to recover damages foían injury sustained by the plaintiff, in consequence of the alleged negligence of the Mayor and City Council of Baltimore, in not preventing or removing an accumulation of ice” on the footway on Fayette street,” on which the plaintiff slipped and fell -and broke his knee cap, the Court said: “The Act of 1796, Ch. 68, incorporating the City of Baltimore, among other things, provides, that the corporation ‘shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the City, and to prevent and remove nuisances.’ It is a well settled principle that when a statute confers a power upon a corpoi-ation to be exercised for the public good, the exercise of the- power is not merely discretionary but imperative, and the words, ‘power and'authority/ in such case, may be construed duty and obligation. * * * We are of opinion, that the effect, of the provision in the statute just cited, was to place the corporation of Baltimore, in regard to their obligations to prevent and remove nuisances, upon the same footing which is held by individuals and pi-ivate corporations. * * * One of these burthens was, the obligation to keep the City free from nuisances. * * * In order that the City should relieve itself from the obligation, it was not only necessary that it should pass ordinances sxxfficient to meet the exigencies of the case, bxxt it was also bound to see that those ordinances were en ³⁶³ forced. To pass an ordinance, and not enforce it, would be the same as if none had been passed, so far as the public interests were concerned.” After Hie passage of the Act of 1867, Ch. 367, creating an independent police department for Baltimore City, and imposing upon it the duty of enforcing, within the City limits, all laws and ordinances, the case of Altvater v. Baltimore, 31 Md. 465 , was decided upon the following statement of facts: “The plaintiff, Elizabeth Altvater, when passing along Saratoga street, in the winter of 1868, was thrown down by being run against by a sled going along that street at a rapid rate of speed. She was seriously injured by the accident.

Before ilie happening of this accident, a large crowd of persons congregated daily on tlio said street, and they had been in the liahit of doing so for weeks previously, and this crowd had rendered travel on the street inconvenient and dangerous, from the speed and number of sleds used, thereby becoming a nuisance. A police officer said he had arrested several of these persons, and they had been discharged by the magistrate.” The Court held that the City was not liable for the injury sustained by the plaintiff, and in the course of the opinion Jtjdgp. Stjswabt said: “The Code of Public Local Laws, Art. 4, sec. 808, makes it the duty of the Board of Police to ‘prevent and remove nuisances’ in all the streets of the City of Baltimore, and the supplementary Act of 1867, Ch. 367, imposes similar duty upon the Board of Police Commissioners, as they are denominated in the supplement. Whilst it is the duty of the Mayor and City Council of Baltimore, to pass all proper ordinances authorized by their charter in regard ‘to the prevention and removal of nuisances,’ and which may not conflict with the duties imposed upon the Board of Police Commissioners (Code of Public Local Laws, Art. 4, sec. 32) they are deprived of the power of enforcing them.” “That duty has been imposed upon the Board of .Police Commissioners, who have been substituted as the general agency, to enforce the ordinances of the City.” ³⁶⁴ _ “The Board of Police Commissioners are not made authorities of the City as such, by any provision of lav?; that part of Article 4, section 822 of the Public Local Laws, which made them such, having been repealed by the supplementary Act of 1867, Ch. 367. “Article 4, section 32 of the Public Local Laws, provides that ‘no ordinance heretofore passed, or that shall hereafter be passed, by the Mayor and Oity Council of Baltimore, shall hereafter conflict or interfere with the powers or the exercise of the powers of the Board of Police of the Oity of Baltimore hereinafter created; nor shall the said Oity, or any officer or agent of the corporation of said Oity, or of the Mayor thereof, in any manner impede, obstruct, hinder or interfere with the said Board of Police, or any officer, agent or servant thereof or thereunder.” “The supplement of 1867, Chapter 367, forbids any construction that would give any control over said board, or any officer of police appointed thereby.

Although they exercise authority, within the City, for public purposes and objects, and to aid in maintaining good order therein, they have not derived their power from the corporation, nor have they been made amendable to the Oity for the faithful discharge of their duties. “Amongst their other duties, they are specifically required ‘to prevent and remove nuisances within the City.’ “Under these circumstances, the duties and obligations of the Mayor and Oity Council of Baltimore, must be taken as qualified and limited by the provisions of the law creating the Board of Police Commissioners. “When the case of Baltimore v. Marriott, 9 Md. 160 , was adjudicated in 1856, the original Act of 1796, Chapter 68, incorporating the City of Baltimore, was in full force, unimpaired by the subsequent legislation establishing the Board of Police Commissioners. Code of Public Local Laws, Art. 4, 806, Act of 1867, Ch. 367.” “According to the law then existing, the Oity of Baltimore possessed not only the power to pass ordinances ‘to pre ³⁶⁵ vent and remove nuisances/ but the unrestricted ability through its ovm police to enforce them.” Without clear and specific provision of lav?, it would be a harsh construction to hold the Mayor and City Council of B'altimore responsible for the wrong and injury complained of in this case, in not preventing and removing the alleged nuisance, whilst they not only had not the power to prevent it, but were emphatically forbidden to interfere with the power over the subject-matter, given to. another body of officials. Altvaters Case was followed and approved in the case of Sinclair v. Baltimore, 59 Md. 592 , which resembles so closely in all respects, the case we are here considering, that a discussion of the ease at bar must necessarily involve a repetition of much of what was there said. Judge Alvet, after stating that the case was fully within the principle of AUvaters (Jose says: “The grievance here complained of is not that the street was allowed to remain out of repair, or that a dangerous obstruction, was produced therein while in course of repair, but that there was allowed to remain in it a dangerous obstruction, of which the plaintiff was unwarned, and by reason of which the injury occurred.

The obstruction consisted of a pile of building material in front of a lot, upon which- a building was in course of erection, on East Fayette street. The accident occurred about 10.30 at night. There was no guard or light to give warning of the presence of the obstruction, the signal light having gone out before that time; and the plaintiff, in driving along the street, ran his buggy over or against the pile of material, which resulted in the