City of Baltimore v. Holmes

• Decision Date: 16 January 1874
• Citation: City of Baltimore v. Holmes, 39 Md. 243 (Md. 1874)
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. THOMAS HOLMES.
• Court: Maryland Court of Appeals

39 Md. 243

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. THOMAS HOLMES.

Court of Appeals of Maryland

January 16, 1874

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exception.--The plaintiff offered three prayers, the first of which is stated in the opinion of the Court, the others are as follows:

2. If the jury further find that the Water Department of the City of Baltimore, by its employés, although often requested to make an opening for the passage of the plaintiff in the ridge of stone, as often persistently refused; and further find that there was no other or proper way by which the plaintiff could reach the premises for the purposes of his business then the jury may take into consideration the refusal of said authorities in estimating their quantum of damages.

3. If the jury find the facts as set forth in the first prayer, and also that the plaintiff was a laboring man, and has been permanently injured for life by the negligence of the employés of the city, under the direction of its Water Board then they may take that fact into consideration in estimating the damages to the plaintiff.

The detendant offered five prayers, the second and fourth of which are to be found in the opinion of the Court, the others are as follows:

1. If the jury find from the evidence, that the injury complained of, happened as testified to, from obstructions placed in the bed of Charles street, which impeded the free use of the street, then the plaintiff is not entitled to recover.

3. If the jury find from the evidence that no notice was given to defendant (before the injury testified to) of the existence of the alleged obstruction in Charles street, then the plaintiff is not entitled to recover, and a request from the witness Rollinson, (who owned the materials which were being hauled away) to the laborers of the Water Department that they would leave an opening in front of his house, was not notice of the existence of such obstruction to defendant.

5. That if they find from the evidence that the Water Department of Baltimore City, on or about July 8th, 1872, found it necessary, in connection with the duty of supplying the citizens with water, to lay a water main at and along the point on Charles street where the alleged injury to plaintiff happened, and that such work was done in a proper manner with reasonable care and diligence, and that a ridge of stones was necessary to be along the opening that had been made, and that the plaintiff, in hauling to and from the house in question, which was on the west side of said ridge had several times stopped his wagon on the east side of said ridge, and loaded and unloaded it from that position, because, as stated by him, he was "shy of crossing the stones," and on the day, at about 11 o'clock, A. M., when the injury happened attempted to lead his horse across the stones, so that he might get his load made quickly, and was warned at the time by his employer (the owner of the house) to be very careful in crossing the stones, because of the danger, and that in attempting so to cross, the horse stumbled and struck plaintiff, and thus broke his leg, then the plaintiff is not entitled to recover.

The Court, (GAREY, J.,) granted the first and third prayers of the plaintiff, and rejected his second, and granted the second and fourth of the defendant, and refused the others. The defendant excepted to the action of the Court in granting the first and third prayers of the plaintiff, and in rejecting its first, third and fifth prayers. The jury rendered a verdict in favor of the plaintiff for $1000, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Albert Ritchie and I. Nevett Steele, for the appellant.

In support of its first prayer, the appellant cited Altvater, et ux. vs. Mayor, &c. of Baltimore, 31 Md., 462.

The appellant was entitled to notice of the alleged obstructions. The Court ought to have granted appellant's fifth prayer, and taken the case from the jury.

If the verdict in this case be right, the city can never open its streets for the great purposes of supplying water or gas, without liability to damages, no matter what may be its care and precautions.

In this case, the facts from which the appellee's contributing negligence appears, are neither controverted nor numerous, nor complicated, nor is the legal rule or standard at all uncertain or varying. They are simple and undisputed, and the question of negligence was therefore a question of law. Balt. & Ohio R. R. vs Shipley, 31 Md., 370; Balt. City Passenger R. W. Co. vs. Wilkinson, 30 Md., 224; Balt. & Ohio R. R. vs. Fitzpatrick, 35 Md., 46; Balt. & Ohio R. R. vs. State, use of Dougherty, 36 Md., 366; Biles vs. Holmes, 11 Ire., 16; Heathcock vs. Pennington, 11 Ire., 640; Foot vs. Wiswall, 14 John., 303; Dascomb vs. B. & St. L. R. R., 27 Barb., 221; Purvis vs. Coleman, 1 Bosw., 321; Fogg vs. Nahant, 106 Mass., 278, S. C., 98 Mass., 578; Westchester R. R. vs. McElwee, 67 Pa. St., 311.

W. J. Waterman, for the appellee.

The charter of the city, Act of 1796, ch. 68, grants inter alia the power to remove and prevent nuisances, and this power imposes and means an obligation so to do. Mayor, &c. vs. Marriott, 9 Md., 160. An obstruction of a highway is a public nuisance. 7 Bacon's Abr., Title " Nuisance," 226.

Blackstone classes among public nuisances, "annoyances in highways, &c. rendering them dangerous or inconvenient to pass," "either positively from actual obstruction, or negatively by want of repairs." 4 Bl. Com., 167. It is therefore the duty of the city to keep its streets in a good or at least passable condition, so as to be used in their entire dimensions. And though it may break them up to lay pipes, it must forthwith replace them in their original condition. Balt. City Code, secs. 17, 18, p. 965.

In a great thoroughfare like Charles street, twenty-four hours obstruction would be gross negligence and a public nuisance. The obstruction becomes a public nuisance a moment after it could possibly be removed, and the longer it continues, the more aggravated it becomes, and any private injury or special damages resulting therefrom, may be the basis of civil suit, unless the City has no control over, or power to abate the nuisance. Harrison vs. Sterett, 4 H. & McH., 540; M. & C. C. vs. Marriott, 9 Md., 160; Altvater, &c. vs. M. & C. C., 31 Md., 462; Houck vs. Wachter, 34 Md., 265.

The city was therefore responsible in damages for its negligence, unless plaintiff contributed by his negligence. 4 H. & McH., 540; 9 Md., 160; 34 Md., 265. And even then, if the negligence or carelessness of the defendant was the proximate cause of the disaster, which care on its part would have avoided. B. & O. R. R. vs. Dougherty, 36 Md., 366

In Wilkinson's Case, 30 Md., 224 plaintiff was in open violation of a wholesome regulation of the company, which was negligence in law. Holmes was violating no law The citizens have the right to the use of the whole of the streets, for the purposes to which they are dedicated, and it was no violation to occupy any part of them...