Mayor and City Council of Baltimore v. State, to Use of Ahrens

• Decision Date: 21 May 1935
• Docket Number: 4.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE, TO USE OF AHRENS ET AL.
• Court: Maryland Court of Appeals

179 A. 169

168 Md. 619

MAYOR AND CITY COUNCIL OF BALTIMORE v. STATE, TO USE OF AHRENS ET AL.

No. 4.

Court of Appeals of Maryland

May 21, 1935

Appeal from City Court of Baltimore City; Samuel K. Dennis, Judge.

Action by State of Maryland, to the use of William John Ahrens and Estella Ahrens, father and mother of William Wallace Ahrens deceased, against the Mayor and City Council of Baltimore. From a judgment for plaintiff, the defendants appeal.

Judgment reversed without a new trial.

Argued before BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

R. E Lee Marshall, City Sol., and J. Francis Ireton, Asst. City Sol., both of Baltimore (Edwin J. Wolf, Asst. City Sol., of Baltimore, on the brief), for appellant.

Joseph W. Spector and L. Wethered Barroll, both of Baltimore (W Albert Menchine and Symone S. Spector, both of Baltimore, on the brief), for appellee.

MITCHELL Judge.

The appeal in this case is from a judgment entered in the Baltimore City Court, in favor of the equitable plaintiffs the father and mother of William Wallace Ahrens, an infant slightly over ten years of age, for the loss of services of said infant, by reason of his death; the immediate cause of which was that of drowning.

The record shows that on May 21, 1933, the deceased, accompanied by several other boys, journeyed to Gwynns Falls, a natural stream flowing through Gwynns Falls Park, one of the parks maintained by the city of Baltimore, in the interest of the public health and welfare of the inhabitants of the city.

The boys were also accompanied by a Mr. Bailey, a Sunday school teacher, who suffered the loss of his own life in a heroic effort to save young Ahrens from drowning. The testimony indicates that Gwynns Falls is a narrow stream generally shallow, but that at one point along its course, designated as Twenty Foot Rock, there is a high natural rock opposite which the water suddenly reaches a depth of from 15 to 20 feet. At that point the stream is approximately from 30 to 35 feet wide, and the length of the deep section is approximately 50 feet. Above the rock the stream is not more than 2 feet deep, and the descent from the shallow to the deep part of the stream is sudden.

At Twenty Foot Rock the entire party halted, and it was here that some of the boys doffed their clothing and began swimming in the deep hole. William Wallace Ahrens did not enter the stream at first, but later, while the other boys were swimming, he took off his clothing and waded in the shallow part of the stream, toward the pool.

As to whether he intended to enter the deeper part of the stream and join his playmates, or whether he accidentally slipped from the rock nearby, the evidence is conflicting.

However, it is evident that he could not swim, as immediately upon getting into deep water he was seen struggling, and heard crying for help. It was in this sad plight that Mr. Bailey noticed him, and plunged in the pool in a futile attempt to save the boy, and at the sacrifice of his own life.

It is conceded that the city of Baltimore owns and maintains Gwynns Falls Park, as one of its parking units.

Section 90 of the charter of Baltimore City creates a department of public parks and squares of the mayor and city council of Baltimore, and provides that the head of said department shall consist of a board of park commissioners composed of five members; section 91 of said charter provides that the board of park commissioners shall have charge and control of all public parks, squares, boulevards leading to parks, springs, and monuments belonging to and controlled by or in the custody of the mayor and city council of Baltimore; and under the provisions of section 92 of the above charter, the board of park commissioners shall have power, from time to time, to make such rules and regulations for the government and preservation of order within the parks, squares, springs, and monuments belonging to, controlled by, or in the custody of the mayor and city council of Baltimore, as it may deem expedient.

In pursuance of this latter authority, rule 15 of the rules and regulations of the board of park commissioners promulgated on April 4, 1928, and in force at the time of the death of the deceased, provides:

"No person shall foul or pollute in any manner, any spring, bathing-pool, wading-pool or water course, or bathe or wash in any lake, pond, spring or fountain, nor start the water flowing from any water supply or spigot, other than at a drinking fountain or place provided as a watering place for people or animals, under a penalty of a fine. * * *"

The appellant, the mayor and city council of Baltimore, contends that the appellees' son, when he entered Gwynns Falls for the purpose of wading and swimming, became a trespasser, or at most a licensee, notwithstanding the fact that he may have been an invitee to Gwynns Falls Park, and that it is not incumbent upon the municipality to fill in or inclose the deeper sections of a natural stream against those who disregard its regulations and enter therein.

On the other hand, it is contended by the appellees that warnings of the inherent danger of deep water should have been posted about the pool, or that it should have been inclosed, filled in, or guarded. It is shown that at least three prior drownings had occurred at this same pool during the period of five years prior to the death of young Ahrens and his Sunday school teacher, and that nothing had been done by the park board to protect the public from further loss of life at an obviously dangerous point.

In other words, the appellees base their right to recover upon the alleged negligent act of omission on the part of the appellant, in permitting the pool at Twenty Foot Rock, in one of its public parks, to remain in its natural state, without official warning as to its danger, without reducing the depth of the pool, and without mechanical or police protection in behalf of public safety.

There are seven exceptions found in the record to rulings of the learned judge who presided at the trial court; six of which deal with the admissibility or rejection of testimony, and one of which deals with the rulings on prayers. All but one of the exceptions to rulings on evidence were abandoned in this court, and for the purposes of the conclusion which we have reached, it becomes unnecessary to pass upon the unabandoned exception in the first above group.

Briefly, the vital issue in the instant case is whether or not the maintenance, control, and operation of Gwynns Falls Park, as one of the public parks of Baltimore City, under the authority hereinbefore detailed, is the exercise of a governmental function? If that issue be determined in the affirmative, it will necessarily follow that there was error in the rejection by the trial court of the appellant's demurrer prayers E and G, which are specially directed to said issue.

The liability of the defendant (mayor and city council of Baltimore) must be determined under a true interpretation of the Constitution and statutes under which it was created and its powers granted and duties imposed.

Under section 1 of the city charter, it is provided that the appellant may sue or be sued; and the charter further provides that the executive power of the appellant is vested in the mayor, the departments, subdepartments, municipal officers not embraced in a specified department, and such special commissions or boards as are provided for under by-laws or ordinances not inconsistent with the charter of the appellant. Section 31, Charter and Local Laws of Baltimore City, 1927.

Among these departments, as heretofore indicated, is that of the department of parks and squares, which is composed of the board of park commissioners.

In the recent case of Mayor and City Council of Baltimore v. August W. Eagers, Administrator of August Eagers, deceased (Md.) 173 A. 56, 59, in...