City of Hagerstown v. Crowl

• Decision Date: 05 April 1916
• Docket Number: 39.
• Citation: City of Hagerstown v. Crowl, 128 Md. 556, 97 A. 544 (Md. 1916)
• Parties: MAYOR AND COUNCIL OF CITY OF HAGERSTOWN v. CROWL.
• Court: Maryland Court of Appeals

97 A. 544

128 Md. 556

MAYOR AND COUNCIL OF CITY OF HAGERSTOWN v. CROWL.

No. 39.

Court of Appeals of Maryland

April 5, 1916

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

"To be officially reported."

Action by Walter H. Crowl, infant, by his father and next friend James H. Crowl, against the Mayor and Council of the city of Hagerstown. From a judgment for plaintiff, defendants appeal. Judgment affirmed.

Ferdinand Williams, of Cumberland, and Alexander R. Hagner, of Hagerstown, for appellants.

J Lloyd Harshman, of Baltimore and Frank G. Wagaman, of Hagerstown (A. A. Doub, of Cumberland, on the brief), for appellee.

URNER J.

The important question in this case is raised by a demurrer to the declaration, which alleges, in substance and effect, that the defendant municipality, though empowered by its charter, and therefore charged with the duty, to prevent nuisances on its streets, and to make reasonable regulations in regard to the erection of buildings within its limits, issued a permit for the construction with brick and mortar of a third story upon a building which abutted on one of the principal streets of the city, without providing by ordinance or otherwise for the observance of precautions, by the maintenance of barriers or by other means of protection, against injuries to which persons passing along the sidewalk adjacent to the building would be exposed on account of the inevitable falling of material from the upper story during its erection, and that while the plaintiff, a boy about 10 years of age, was walking with due care on the unguarded pavement in front of the building, without knowledge of the work being done on the wall above, and without warning of the danger thus created, he was struck, first on the shoulder and then in one of his eyes, by mortar which fell from the wall in the course of the work, and as a result of the injury thus received the sight of the eye was permanently lost.

The defendant challenges the sufficiency of the declaration to charge it with actionable liability. It is contended that, notwithstanding the conceded power and duty of the municipality to keep the streets under its control reasonably safe for use by the public, there was no obligation resting upon it to provide against such a cause of injury as the one from which the plaintiff suffered. The danger to pedestrians from the falling of mortar during the construction of a building is said to be too insignificant to require the adoption and enforcement of municipal regulations on that subject. It is argued that an accident like the one described in the declaration was not to be reasonably anticipated, and that therefore the failure of the defendant to take measures to prevent its occurrence did not involve any neglect of corporate duty. This is not, in our opinion, an adequate theory for the determination of the defendant's responsibility. If it omitted to provide safeguards which were reasonably necessary to protect the public from dangers occasioned by building operations in immediate proximity to the streets, it could not be exempted from liability for the consequences of such omission merely because a particular accident resulting therefrom may have been different in nature or degree from those which might ordinarily result from such conditions. If it is the duty of the defendant to require the sidewalk in front of a building in process of erection to be guarded by barricades or otherwise, it is because of the general danger to pedestrians due to the probability that materials may fall into the street during the progress of the work, and not because of an apprehension as to some specific form or kind of injury which may be thus inflicted. The erection of an elevated wall immediately adjacent to a public street involves a element of hazard to persons using the sidewalk, which may be readily anticipated, and against which it seems reasonable that some protection should be afforded. Although ordinary care may be exercised in the performance of the work, allowance must be made for the occasional fall of fragments of the materials used in the construction. There is no certainty that such objects will be so limited in size and weight as to be incapable of causing injury, and they could not be prudently disregarded as a possible source of danger.

The municipal duty of keeping the streets reasonably safe for public use could hardly be said to be properly fulfilled if elevated structures are permitted to be built along the thoroughfares without any provision being made for protecting persons on the street from the risk of harm to which they may be exposed by the building operations. The possibilities of injury from such a source are sufficiently apparent to call for some regulative action on the part of the municipality in regard to such conditions, in order that it may be in a position to plead the full performance of its duty as against such a claim as the present. In Rowe v. Richards, 32 S.D. 66, 142 N.W 664, L. R. A. 1915E, 1069, it was said to be incumbent upon a city, which grants a permit for the erection of a building adjacent to a street, to place barriers in order that the passage of persons on the sidewalk in front of the structure might be prevented while the work was going on, because of the danger from the falling of tools, materials, or other objects. The principle that a municipal corporation, which is invested with the power, is consequently charged with the duty, to make reasonable provision for the safety of the public in the use of its streets, has been fully and frequently recognized by this court. Mayor and C. C. of Baltimore v. Marriott, 9 Md. 160, 66 Am. Dec. 326; Mayor and C. C. of Baltimore v. Pendleton, 15 Md. 12; Taylor v. Cumberland, 64 Md. 68, 20 A. 1027, 54 Am. Rep. 759; Cochrane v. Frostburg, 81 Md. 54, 31 A. 703, 27 L. R. A. 728, 48 Am. St. Rep. 479; Hagerstown v. Klotz, 93 Md. 437, 49 A. 836, 54 L. R. A. 940, 86 Am. St. Rep. 437; Keen v. Havre de Grace, 93 Md. 34, 48 A. 444; Magaha v. Hagerstown, 95 Md. 70, 51 A. 832, 93 Am. St. Rep. 317; Baltimore v. Beck, 96 Md. 190, 53 A. 976; Havre de Grace v. Fletcher, 112 Md. 568, 77 A. 114; Annapolis v. Stallings, 125 Md. 346, 93 A. 974; Com'rs of Delmar v. Venables, 125 Md. 476, 94 A. 89; Gutowski v. Baltimore, 127 Md....