Green v. Mayor and City Council of Baltimore City

• Decision Date: 09 February 1943
• Docket Number: 71.
• Citation: 30 A.2d 261,181 Md. 372
• Parties: GREEN v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

30 A.2d 261

181 Md. 372

GREEN v. MAYOR AND CITY COUNCIL OF BALTIMORE CITY.

No. 71.

Court of Appeals of Maryland

February 9, 1943

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Action by Sarah Green against the Mayor and City Council of Baltimore City to recover for injuries sustained when an automobile in which plaintiff was a guest collided with a safety pylon. From an adverse judgment, plaintiff appeals.

Affirmed.

David J. Markoff and Michael J. Manley, both of Baltimore, for appellant.

Morris A. Baker, Asst. City Sol., of Baltimore (F. Murray Benson City Sol., of Baltimore, on the brief), for appellee.

Before SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

SLOAN Judge.

The plaintiff, Sarah Green, was a guest passenger in an automobile owned and driven by her son-in-law, Harry Pasenker, and was injured when it collided with a pylon located on North Avenue, near its intersection with Dukeland Street, about 6 o'clock on the evening of November 19 1938. Tere have been two trials of the case, at the first the judgment was in favor of the plaintiff. A new trial was granted on the ground that there should have been a verdict directed for the defendant. At the second trial the case was submitted on the evidence taken at the first trial, and a verdict instructed for the defendant. From the judgment thereon the plaintiff appeals.

The instructions, granted at the request of the defendant, were A. No legally sufficient evidence; B. 'that the safety pylon, including the lights thereon, is operated and maintained solely by the Police Department, and, further that the City had no actual or constructive notice that the light or lights had not been turned on the pylon just prior to the accident'; C. That the defendant had no legally sufficient notice 'either actual or constructive, that the lights on the safety pylon in question were out or in a defective condition in time to have repaired the same prior to the happening of the accident'; D. That the city 'is not responsible for the negligence of the Police Department or any of its members, it and they not being agents of the Mayor and City Council of Baltimore.'

The plaintiff's contentions are, (1) that there is legally sufficient evidence of negligence on the part of the city, and (2) that the city is not relieved of responsibility 'because it had delegated to the Police Department of Baltimore City the duty of turning on and off the lights on the Pylon at the safety zone'.

The plaintiff's first contention is really included in the second, which goes to the question of the authority, if any, of the mayor and city council over or aside from the police.

The Act of 1867, ch. 367 took the police department out of the hands of the city, and put it in the control of the State. By section 899 of the City Charter (1938 Ed.); Public Local Laws (1930) Art. 4, sec. 747, it is the duty of the police commissioner, who is appointed by the Governor, 'to estimate annually what sum of money will be necessary for each current fiscal year to enable him to discharge the duty imposed on him, and he shall forthwith certify the same to the Mayor and City Council of Baltimore, who are required without delay, specifically to assess and levy such amount as shall be sufficient to raise the same clear of all expenses and discounts upon all the assessable property in the City of Baltimore, and cause the same to be collected as all other city taxes'; and, if the amount so estimated shall prove insufficient, he may issue certificates of indebtedness against the city to make up the deficiency not to exceed fifty thousand dollars in any one year.

The power to pass ordinances and make traffic regulations is in the mayor and city council, but the enforcement of them is the duty of the police. State v. Stewart, 152 Md 419, 137 A. 39. As said in Altvater v. Baltimore, 31 Md. 462, 466, the first case to come to this court after the adoption of the Act of 1867, '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,' * * * they are deprived of the power of enforcing them'. See also Sinclair v. Baltimore, 59 Md. 592; Taxicab Co. v. City of Baltimore, 118 Md. 359, 84 A. 548. The city cannot be held responsible unless it...