City of Baltimore v. O'Donnell

• Decision Date: 09 February 1880
• Citation: 53 Md. 110
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. CHRISTOPHER C. O'DONNELL, by His Next Friend, John W. O'Donnell.
• Court: Maryland Court of Appeals

53 Md. 110

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. CHRISTOPHER C. O'DONNELL, by His Next Friend, John W. O'Donnell.

Court of Appeals of Maryland

February 9, 1880

Appeal from the Court of Common Pleas of Baltimore City.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered two prayers; the first is set out in the opinion, the second is as follows:

That in estimating the damages to be given, the jury may consider the health and mental and physical condition of the plaintiff before the injury complained of, as compared with his present condition of mind and body in consequence of the injury, and whether the injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those employments and pursuits for which, in the absence of the injury, he would have been qualified; and also the physical and mental suffering to which he has been subjected by reason of the said injury, and to allow such damages as in the opinion of the jury will be a fair and just compensation for the injury which he has sustained.

The defendant offered six prayers, of which it is necessary to set out only the first, which is as follows:

That if the jury shall find from the evidence, that at the time of the happening of the injury to the plaintiff, complained of in the declaration, West street, between Charles and Light streets, was being repaved and recurbed under and in pursuance of an ordinance or ordinances of the Mayor and City Council of Baltimore, which required that said work should be done by contract, and that such contract should be awarded to the lowest responsible bidder, and that the contract for re-paving and recurbing West street as aforesaid, was in accordance with the provisions of said ordinances awarded to Joseph C. Manning, and that Frederick C. Crowley was employed by said contractor to superintend said work, and did superintend the same, and that said Crowley was under the exclusive control and in the independent employment of said contractor, and not of this defendant, and that during the execution of said work under said contract, the rope mentioned in the declaration, whereby the injury to said plaintiff is alleged to have been occasioned, was extended across West street, at the place and time and in the manner given in evidence by said Crowley, or by his direction, then that the plaintiff is not entitled to recover in this action against this defendant, although the jury may believe that said accident and injury to the plaintiff were caused by the placing of said rope at the place and in the manner given in evidence.

The court, (Brown, J.,) granted the plaintiff's first and second, and defendant's second, third, fourth, fifth and sixth prayers, and rejected the defendant's first prayer the defendant excepted, and the verdict and judgment for $1000, being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and IRVING, JJ.

James L. McLane, for the appellant.

It has long been settled in England, that defendants not personally interfering or giving directions respecting the progress of the work, but contracting with a third person to do it, are not responsible for a wrongful act or negligence in the performance of the contract, if the act agreed to be done is legal. Reedie v. Cubitt, 4 Exch. 243; Knight v Fox, 5 Exch. 721; Overton v. Freeman, 11 C. B 867; Peachy v. Rowland, 16 E. L. & Eq. 422; Gray v. Pullen, 32 Law Journal, N. S. 169; 1874, ch. 218; City Code, 1879, p. 1010.

Whatever may have been the apparent conflict of opinion growing out of the early case of Bush v. Steinman, the rule as stated by Chief Justice Cockburn in Gray v. Pullen, is certainly the law of this State. The rule applies with full force to municipal corporations. Deford v State, 30 Md. 179; Blake v. Ferris, 5 N.Y. 48; Pack v. Mayor, 4 Seld. 222; Kelly v. Mayor, 11 N.Y. 432; Barry v. St. Louis, 17 Mo. 121; Painter v. Mayor, 46 Pa. St. 213.

John K. Cowen, for the appellee.

In several cases similar to this, the City of Baltimore has been held liable for injuries resulting from failure on its part to warn the public of the existence of dangerous defects and obstructions, or failure to carefully guard such defects and obstructions. Balto. v. Marriott, 9 Md. 160; Balto. v. Pennington, 15 Md. 12; Balto. v. Holmes, 39 Md. 243.

So, likewise, County Commissioners have been held liable. Co. Commrs. v. Duckett, 20 Md. 468; Co. Commrs. v. Baker, 40 Md. 8.

An examination of these and other authorities shows, that but two conditions need concur to establish such a duty and liability in the absence of a positive statute on the subject:

1st. The place in question, whether bridge, road or street, must be one over which the corporation has the right to exercise control in one way or another, and which it has the right to repair, and--

2nd. The city (corporation) must have the authority to levy taxes or impose assessments for the purposes of carrying out the powers and privileges conferred. 2 Dillon Mun. Corp. 916-917; Blake v. St. Louis, 40 Mo. 569-570; Brooklin v. R. R. Co. 47 N.Y. 482.

That as the City of Baltimore has the right of control over the streets, lanes and alleys within its limits, and the right to keep them in repair, and that as it has the authority to levy taxes for the purpose of meeting the expenses incident to repair, all of which will fully appear from the statutes, relating to the city, and the ordinances contained in the City Code of 1879, it must be held liable for any disregard of its duty in this particular.

The appellant, however, seeks to evade the responsibility attaching to it by shifting such responsibility from its shoulders to those of the contractor, Manning, and for this purpose offered its first prayer, which, in substance instructs the jury to find for the defendant, if they believe that the work in progress was under the city ordinances of 1874, in the hands of a contractor whose superintendent and agents stretched across the street the rope causing the injury. The appellant, therefore, substantially claims that even assuming it to be its duty to keep the streets free from obstructions, and in a safe and passable condition, yet, if it becomes important or necessary to repair one of them, the work required may be performed by a contractor--in spite of the fact that the city alone under the law has the right to do the work--and if undertaken by him, and whilst in progress, through his glaring negligence a citizen is injured, the city itself avoids all liability, because it has committed to another the discharge of a duty under the terms of a contract as loose as that given in the evidence, with no provisions looking to the protection during the execution of the work of those entitled and accustomed to the free and unobstructed use of the highway, utterly silent about the barriers and precautions, and containing no clauses of indemnity for the city against justifiable and legal claims presented for injuries resulting from acts of negligence in the contractor. Can it be said that in such a case those injured may not seek redress from the city, but shall pursue a forlorn remedy against those who in nine cases out of ten are insolvent contractors, whose dangerous excavations the plaintiff could not anticipate, and whom he could not compel to use proper signals of danger, whilst the city, the author of the work by whose command the excavation was made, who had the right to insist upon the erection of proper barriers, stands free from liability? To sanction the doctrine thus sought to be established, would be equivalent to saying that a city may determine to have a dangerous excavation made, and that, too, in a frequented thoroughfare; may select its own contractor for the excavation of the work, who may be grossly negligent in its performance; and yet, in the event of an injury to a citizen, the latter cannot recover because the city has a right to shield itself from liability by interposing the contract which the city itself has made for the very thing which creates the danger. A municipal corporation like Baltimore, upon which the injunction is laid to keep its streets and alleys in safe and passable condition, which has the power of passing ordinances of any character whatever necessary to keep them in such safe and passable condition; that has at its command the financial resources requisite to meet any expense incurred in putting the streets in safe and passable condition, cannot, with impunity, either itself, or through the means of independent contractors, tear up the cobble stones, dig dangerous holes, and leave them unguarded at night, and without a single precaution to warn people of impending danger. Numerous decisions in this country confirm this statement of the law. 5 Southern Law Rev. 118; Prentiss v. Boston, 112 Mass. 43; note to Painter v. Pittsburg, 3 Am. Law Reg. N. S. 360; Centreville v. Woods, 57 Ind. 192; Hammond v. Mukwa, 40 Wis. 35-41; Wendell v. Troy, 39 Barb. 335; Williard v. Newburg, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 155; Inhabitants v. R. R. Co. 49 Me. 119; Welcome v. Inhabitants, 51 Me. 313; Norristown v. Moyer, 67 Pa. St. 367; Phila. v. Weller, 4 Brews. 24; Currier v. Lowell, 16 Pick. 170; Bacon v. Boston, 3 Cush. 174; Merrill v. Inhabitants, 11 Gray, 154; Pollard v. Inhabitants, 104...