Keen v. City of Havre de Grace

• Decision Date: 21 February 1901
• Citation: 48 A. 444,93 Md. 34
• Parties: KEEN v. MAYOR, ETC., OF CITY OF HAVRE DE GRACE.
• Court: Maryland Court of Appeals

48 A. 444

93 Md. 34

KEEN v. MAYOR, ETC., OF CITY OF HAVRE DE GRACE.

Court of Appeals of Maryland

February 21, 1901

Appeal from circuit court, Harford county.

Action by Lycurgus Keen against the mayor and city council of the city of Havre de Grace. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.

Jas. J Archer, Fred. R. Williams, and John S. Young, for appellant.

Thos H. Robinson and P.L. Hopper, for appellee.

PAGE J.

The court instructed the jury at the close of the plaintiff's testimony that there was no evidence legally sufficient to establish negligence on the part of the defendant, and the correctness of this instruction constitutes the only subject of consideration in this case. The suit was brought to recover damages for injuries alleged to have resulted from the negligence of the defendant. The evidence shows that the plaintiff was walking along the sidewalk of Union avenue, in the city of Havre de Grace, an incorporated town, on a dark night, and while so doing fell into a hole and was injured. The immediate cause of his fall, the plaintiff claims, was the hole in the sidewalk, into which he stepped, whereby he lost his balance and fell down an embankment. The law applicable to a case of this kind is clear. It is not questioned that the city of Havre de Grace has power to grade and repair its streets and sidewalks (Act 1890, c. 180); and when such is the case the municipality is bound to maintain them in safe condition, and if it negligently fail so to do, and thereby persons, acting without negligence on their part, are injured, it is liable to respond in damages for all injuries caused by its neglect. Mayor, etc., v. Marriott, 9 Md. 160; Mayor, etc., v. Pendleton, 15 Md. 17. Before, however, the municipality can be made liable in any case, it must be shown that it had actual or constructive notice of the bad condition of the streets. As was well said in the case of Todd v. City of Troy, 61 N.Y. 509 "By 'constructive notice' is meant such notice as the law imputes from the circumstances of the case. It is the duty of the municipal authorities to exercise an active vigilance over the streets, to see they are kept in a reasonably safe condition for public travel. They cannot fold their arms and shut their eyes, and say they have no notice. After a street has been out of repair, so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality, through its agents charged with that duty, to learn of its existence and repair it, the law imputes to it notice, and charges it with negligence." If the effect be of such a character as not to be readily observable, express notice to the municipality must be shown. Burns v. City of Bradford, 137 Pa.St. 367, 20 A. 997, 11 L.R.A. 726; Cook v. City of Anamosa, 66 Iowa, 430, 23 N.W. 907. But if it be one which the proper officers either had knowledge of, or by the exercise of reasonable care and diligence might have had knowledge of, in time to have remedied it, so as to prevent the injury complained of, then the municipality is liable. Stanton v. Salem, 145 Mass. 479, 14 N.E. 519; Gschwend v. Mellvale Borough, 159 Pa.St. 257, 28 A. 139; Mayor, etc., v. Perdue, 53 Ga. 607. If, therefore, the evidence in this case shows that there was a defect in the...