Flynn v. Canton Co. of Baltimore

• Decision Date: 09 June 1874
• Parties: ELLEN FLYNN v. THE CANTON COMPANY OF BALTIMORE.
• Court: Maryland Court of Appeals

40 Md. 312

ELLEN FLYNN v. THE CANTON COMPANY OF BALTIMORE.

Court of Appeals of Maryland

June 9, 1874

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exception.--The plaintiff offered the following prayers:

1. If the jury find from the evidence, that the defendant, on or about the 27th day of February, 1873, was, through its servants or agents, in possession of the premises known as the Canton Market, in the City of Baltimore, under a lease from the Mayor and City Council of Baltimore, and that appurtenant to said market on the front or side thereof there is a pavement or public footway, and shall further find that said defendant while so possessed as aforesaid, failed and neglected to keep said pavement or footway free from ice or snow, but allowed the same to accumulate thereon in such a manner as greatly to obstruct, inconvenience and endanger the public in walking along or over said footway, contrary to an ordinance of the Mayor and City Council of Baltimore; and shall further find that the plaintiff, while exercising ordinary care and diligence on her part, received the injury complained of by falling on said ice or snow, then the plaintiff is entitled to recover.

2. If the jury find a verdict for the plaintiff in estimating the damages, they are to consider the health and condition of the plaintiff before the injury complained of, as compared with her present condition, in consequence of the said injury, and whether the said injury is in its nature permanent, and how far it is calculated to disable the plaintiff from engaging in those employments for which, in the absence of said injury, she would have been qualified; and also the physical and mental suffering to which she was subjected by reason of 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 the plaintiff has thus sustained.

The defendant prayed the Court to instruct the jury, that the evidence in this case is not legally sufficient to maintain the action, and the plaintiff is, therefore, not entitled to recover.

The Court (GAREY, J.,) rejected the prayers of the plaintiff, and granted the prayer of the defendant. The plaintiff excepted and the verdict and judgment being against her, she appealed.

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

William A. Hammond, for the appellant.

The ordinances of the Mayor and City Council of Baltimore, Art. 42, sec. 156, of the Baltimore City Code, 1869, provides, that it shall be the duty of every person or corporation to keep the pavements or sidewalks situate in front, rear or side of their tenements free from ice and every obstruction of whatever nature. This ordinance is strictly within the scope of the powers delegated to the Mayor and City Council by the charter of the city, to pass ordinances in reference to the prevention and removal of nuisances. Public Local Laws, Art. 4, sec. 797. And for the preservation of property and persons from danger. Ibid., sec. 32. That Act "clothed the corporate authorities, within the specified limits, with all the legislative power which the General Assembly could have exerted." Harrison vs. Mayor, &c., 1 Gill, 264. The ordinance therefore became "a law." Pub. L. L., Art. 4, sec. 10. See also Heland vs. City of Lowell, 3 Allen, 407; Goddard, Petitioner, &c., 16 Pick., 504; Presb. Ch. vs. City of N. Y., 5 Cow., 540; City of St. Louis vs. Boffinger, 19 Mo., 15; Taylor vs. City of Carondelet, 22 Mo., 105; Hopkins vs. Mayor, &c., of Swansea, 4 Mees. & W., 638.

Even a contract contrary to an ordinance properly enacted is entirely void. Jones vs. Firemen's Fund Insurance Company, 2 Daly, (N. Y.,) 307; Bell vs. Quin, 2 Sanford, S. C. Rep. ( N. Y.,) 146; Milre vs. Davidson, 5 Martin La. (N. S.,) 586; Dillon on Mun. Corp., sec. 245 and note. The duty therefore cast upon the appellee by law to remove the ice and snow from its pavement, and if injury resulted from its neglect to perform this duty, it was liable in damages. Shear. & Red. on Neg., p. 395, sec. 345; Duckett vs. Co. Com. of A. A. Co., 20 Md., 468; Wendell vs. Mayor, &c., of Troy, 39 Barb., 335.

The fact that the ordinance prescribes a fine or a penalty for non-compliance with its provisions, does not relieve the appellee of its common law liability, to answer in damages for any neglect of duty on its part, whereby injury results to an individual. Couch vs. Steel, 77 E. C. L., (3 El. & Bl.,) 402; Caswell vs. Worth, 85 E. C. L., (5 El. & Bl.,) 848; Shear. & Red. on Neg., 643.

The appellee was a wrong-doer, (whether its sin was one of omission or commission could make no difference,) and it was therefore liable for any consequences flowing from its neglect or wrongful act. Owings vs. Jones, 9 Md., 160; B. & O. R. R. vs. State, use of Miller, 29 Md., 261. Whether there was negligence on the part of the appellee, in not complying with the provisions of the ordinance, and whether the injuries to the appellant were the result of that negligence, were questions for the jury, and there was ample evidence from which they might well have found the affirmative of both propositions. B. & O. R. R. vs. Shipley, 31 Md., 368. The plaintiff's first prayer should therefore have been granted. Mayor, &c., of Balt., vs. Marriott, 9 Md., 160.

Arthur Geo. Brown, for the appellee.

A householder is in no case responsible for personal injury, resulting from the collection of ice or snow from the operation of natural causes, on the sidewalk in front of premises occupied by him. Kirby vs. Boylston Market Association, 14 Gray, 249.

The duty to clear away such obstructions as ice and snow from the public streets of a city, rest upon the municipal corporation itself, whose highways they are--(Mayor vs. Pendleton, 15 Md., 16,)--but injuries caused by the mere slipperiness of a pavement from smooth ice, which has been formed upon it by the action of the elements, furnish no ground of action against a city, much less against an individual householder. Stanton vs. City of Springfield, 12 Allen, 566; Nason vs. City of Boston, 14 Allen, 508; Stone vs. Inhabitants of Hubbardston, 100 Mass., 56; Gilbert vs. City of Roxbury, 100 Mass., 185; Hubbard vs. Concord, 35 N. H., 68; Landolt vs. City of Norwich, 37 Conn., 615; Durkin vs. City of Troy, 61 Barb., 454; Mosey vs. City of Troy, Ibid., 580; Cooke vs. City of Milwaukee, 24 Wis., 270.

It is believed that no reported case can be found, (except the case of Kirby vs. Boylston Market Association, 14 Gray, 249,) in which, under similar circumstances, an action has been brought against the occupant of the premises in front of which personal injury has been sustained from a fall on ice.

A householder has no other or greater right in or to, or control over that part of the public street in front of his property, than any other part of the highways of the town. All the streets of a city are equally free to the general public, who at all times are entitled to the free and unobstructed use of every foot of them. 2 Dillon Munic. Corp., (2 d Ed.) secs. 520, 541.

It is the duty of the city authorities of Baltimore, (or the Board of Police Commissioners-- Alvater vs. Mayor, &c., 31 Md., 462,) to keep the public streets within its limits at all times free and fit for travel, and in the performance of this its duty, and as a part of its police power, it may require citizens to render appropriate aid. Ex parte Goddard, 16 Pick., 504; Union R. R. Co., vs. Mayor, &c., of Cambridge, 11 Allen, 287; Kirby vs. Boylston Market Asso., 14 Gray, 252; 1 Dillon on Municip. Corp., (2 d Ed.) sec. 327.

For a failure to obey the requirements of the ordinances, the city may fine the citizen, and so compel him to assist in carrying them out; but the passage of the ordinances does not shift the duty to clear away ice and snow from the corporation to the citizen; it remains still the city's duty to prevent and remove such obstructions in its streets, and for its failure to do so through its officers or by the enforced aid of its citizens, the city itself is alone responsible. Mayor, &c., vs. Marriott, 9 Md., 160; Mayor, &c., vs. Pendleton, 15 Md., 16; Houck vs. Wachter, 34 Md., 265, 267, 273.

The facts stated in the record would not subject the appellee to an indictment for a nuisance; it is therefore not liable to respond in damages to the suit of the appellant. County Commissioners vs. Duckett, 20 Md., 468, 477, 478, 481.

MILLER J., delivered the opinion of the Court.

This is an action on the case by the appellant against the appellees, to recover damages for personal injuries sustained by the plaintiff, in consequence of slipping and falling upon ice covering the pavement of a public street in the city of Baltimore, in front of premises occupied by the defendants.

The proof shows that the plaintiff while on her way to church, on the morning of the 27th of February, 1873, slipped and fell upon a sheet of ice on the pavement or sidewalk of O'Donnell street, and by the fall, her right arm was broken and permanently disabled; that she was walking at the time with ordinary care, and could not see the ice because of a slight covering of snow which fell during the preceding night; that the pavement where the accident happened was in front of the Canton Market House, then in the possession and occupation of the defendants, a body corporate, under a lease from the city. It was further in evidence that snow had fallen frequently from time to time during the winter, prior to the accident, and was permitted to remain and accumulate as it fell on this pavement; that the police officer on that beat had notified the defendants several times during January and...