Mayor and City Council of Baltimore v. Eagers

• Decision Date: 12 June 1934
• Docket Number: 24.
• Citation: 173 A. 56,167 Md. 128
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. EAGERS.
• Court: Maryland Court of Appeals

173 A. 56

167 Md. 128

MAYOR AND CITY COUNCIL OF BALTIMORE v. EAGERS.

No. 24.

Court of Appeals of Maryland

June 12, 1934

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

Action by August W. Eagers, administrator of the personal estate of August Eagers, deceased, against the Mayor and City Council of Baltimore. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

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

Benjamin H. McKindless, of Baltimore (Harry C. Kalben and Ellis L Arenson, both of Baltimore, on the brief), for appellee.

PARKE Judge.

While walking in Collington Square, in the city of Baltimore, on September 8, 1932, August Eagers was injured by a large limb of a tree falling upon him, and, as a result of the hurt, died two days later. His administrator brought an action in tort against the mayor and city council of Baltimore, a municipal corporation, to recover damages for the pain and suffering and pecuniary loss sustained by the decedent before his death as a direct result of the injury received. The defendant sought a directed verdict in its favor by offering suitable prayers, which presented the defendant's alternative defenses (1) that the testimony did not establish that the defendant had committed any act of primary negligence; (2) that if the defendant were negligent, the plaintiff was barred because of his decedent's contributory negligence; and, finally, (3) that the accident occurred during the course of the performance of a governmental function for which the municipality was not liable to respond in damages.

1. There was testimony in the case that tended to establish these facts. Collington Square, in Baltimore City, is ornamented by trees and has sidewalks and paths for public use. On the day of the accident a gang of twelve or fourteen laborers was engaged in removing some of the growing trees in the square. During the morning two trees had been removed, and in the afternoon the men had begun on the third tree, which was a poplar and stood, apart from shrubbery or undergrowth, about 20 feet west of the inside of the walkway in the square which bordered on Patterson Park avenue, and about 100 feet north of the inner side of the walkway in the square which paralleled Preston street on the south of the square. The trunk of this tree rose to a height of from 12 to 25 feet, and then forked, one limb branching to the east toward Patterson Park avenue and the other to the west.

Following the usual method, the gang had dug down and removed the earth about the tree and cut the roots to loose the tree and make it easier for it to be pulled down, as the tree had been climbed and a heavy rope had been knotted around both branches of the tree above the crotch where it divided into a wye. The rope was attached to a block and fall, which was fastened about the trunk of another tree in the square and standing south of the tree to be pulled down. With the free end of the rope in their hands, the workmen pulled in a southwesterly direction, in the expectation that the tree would fall that way. However, the limb of the wye of the condemned tree extending towards the walk along the western edge of Patterson Park avenue on the east was rotten, and, under the strain and constriction of the pull by the workmen, snapped off 7 inches above the crotch, and fell without any warning of the break. The limb was about 20 feet long and 9 inches in diameter, and fatally injured August Eagers, who was walking in a southerly direction toward Preston street on the center of the sidewalk whose nearer margin was 20 feet east of the trunk of the tree. While the defendant's testimony is to the contrary, that on the part of the plaintiff tends to prove that the limb that fell was dead and rotten. Although it was in the early part of September and the tree was in foliage, there were no leaves on the branches and twigs of the limb that snapped under the strain of the pull of the rope, and the condition of the limb was evident from its appearance. Notwithstanding these facts, the pull of the men was against the dead limb which was thus subjected to the full effect of the tug. There was, also, testimony that the decedent was not warned of any danger.

If, notwithstanding the testimony offered by the defendant, the jury should find these facts, from the evidence, a clear case of primary negligence would be established. To attempt, near a public walk to pull down, without warning, a large and heavy tree by means of a block and fall whose entire stress is borne by an unsound limb whose dead and rotten condition is evident, is testimony to go to the jury in proof of primary negligence, when an injury results.

2. Neither ropes nor barriers nor other warnings of danger were placed on the sidewalk, and public travel was neither forbidden nor interrupted, and there is testimony in the case which, if believed, would show that the decedent sustained his injury without any warning.

It is but fair to assume that the decedent saw the men engaged in their labor, but it was reasonable for him to believe that their skill in their work had caused them to guard against accident, and so to control the fall of the tree that it would come down in the direction which had obviously been planned. The snapping off of that part of the wye of the tree to which the rope was secured, and the unanticipated fall of the broken limb in an opposite direction from the one in which the limb was being pulled, could not reasonably be said to have been anticipated by the decedent. Under such circumstances, a person on a public walk, at least 20 feet distant from the place where an effort is being made to pull down a tree so as to fall in a direction away from him by means of a block and fall, is not, while walking on the sidewalk away from the scene, guilty of an act of negligence of such a distinct and decisive nature as to leave no doubt in the mind of a reasonable person that the plaintiff's act is the immediate, final, and efficient cause of the injury he sustained. On the contrary, this testimony, with the other variant testimony on the part of the defendant, was properly left with the jury to determine the controverted question of the decedent's contributory negligence.

3. The men engaged in the removal of the tree from a public square, which occupied a city block and was under the immediate control of the municipal board of park commissioners, were the employees of the municipal bureau of highways working in its city forestry division; and, conceding their negligence was the proximate cause of the injury to the decedent, the question is whether the nature of the work in which the men were employed was such as to permit an action at law in tort against the municipality.

The liability of the defendant must be determined under a true interpretation of the Constitution and the statutes under which it was created and its powers were granted and its duties imposed. Section 1 of the Charter provides that the defendant may sue and be sued; and by section 6, subsections (16) and (24), the defendant is given full power and authority to establish, maintain, control, and regulate parks or squares in the city of Baltimore for the recreation and benefit of its citizens and subsection (18) authorizes the municipality to pass ordinances securing property and persons from violence, danger and destruction. Charter and Public Local Laws of Baltimore City (1927) pp. 5, 24-32, 26; for highways, see subsection 26, pp. 35-42.

The executive power of the defendant is vested in the mayor, the departments, subdepartments, municipal officers not embraced in a specified department, and such special commissioners or boards as are provided for under by-laws or ordinances not inconsistent with the charter of the defendant, § 31, pp. 68, 69 of Charter, etc. (1927). Among these departments is that of department of parks and squares, which is composed of the board of park commissioners. The board is given 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 defendant; and shall perform such duties as may be prescribed by ordinances not inconsistent with the municipal charter. The board has full power to employ and compensate all persons whom, in its judgment, it may deem proper in maintaining and supporting such parks squares, springs, and monuments, or any other building, collection, garden, or reservation provided for in the charter. However, the board may request and obtain from the department of public works, which embraces the bureau of highways, such services as are incident to the usual operations of that department and required by the board. Charter of Baltimore (1927), §§ 90-98, pp. 141-143; 85A, part I, pp. 108, 109, 112, 113, part III, p. 134. This jurisdiction of the board of park commissioners over Collington Square was, in 1910, extended by...