Mayor & City of Baltimore v. Pendleton

• Decision Date: 26 January 1860
• Parties: THE MAYOR & CITY COUNCIL OF BALTIMORE v. ROBT. H. PENDLETON and WM. HARLAN.
• Court: Maryland Court of Appeals

15 Md. 12

THE MAYOR & CITY COUNCIL OF BALTIMORE v. ROBT. H. PENDLETON and WM. HARLAN.

Court of Appeals of Maryland.

January 26, 1860

The corporation of the city of Baltimore having, by its charter power " " to prevent nuisances, " is liable in damages to the owner of a horse for an injury done the horse, occasioned by the digging of a trench or hole in a street of the city, into which the horse fell, the driver having used reasonable and proper care and diligence to avoid the danger.

The facts that the trench was dug by the owner of a house fronting on the street, for the purpose of conducting water to his premises from the water pipes of the city, and that by the city ordinances on the subject, the necessary excavation filling up and paving was to be done by such owner, do not relieve the corporation from the obligation, under its charter, to keep the public highways free from nuisances and in a condition to be safely travelled.

APPEAL from the Court of Common Pleas.

This action was brought in May 1856, by the appellees against the appellants, to recover damages for an injury done to the plaintiffs' horse, occasioned by the digging of a trench in Garden street, in the city of Baltimore, into which the horse fell, and was thereby so crippled as to become worthless. Plea, not guilty.

Exception. The facts of the case as disclosed by the evidence are fully stated in the opinion of this court. The defendants asked two instructions to the jury.

1st. If, from the evidence in the cause, the jury find the said ditch or trench was not dug by the defendants, or any one employed by them, though they find it was dug by some one but that the digging thereof and its condition as described by the witnesses, was the work of some private individual, by himself or his agents, or servants, with the view and as the means of connecting his private pipes with the main water pipe of the city in Garden street, then the plaintiffs are not entitled to recover of the defendants in this action.

2nd. If the jury find from the evidence in this cause that the horse of the plaintiffs was injured as stated by the witnesses, yet if they further find from the evidence that such injury was more owing to the negligence of the plaintiffs, or their servants, than to the defendants, if they should find negligence in the defendants then the plaintiffs are not entitled to recover.

These prayers the court (MARSHALL, J.) refused, and instructed the jury, that if they find from the evidence in the cause, that the horse of the plaintiffs, spoken of in the evidence, was injured by falling into a ditch or hole dug in a public street or highway, in the city of Baltimore, in the manner set forth in the evidence, and that the said ditch or hole had been previously dug in said street or highway, by some person for the purpose set forth in the evidence, and had remained open for the length of time stated in the evidence, and that the said ditch or hole had been left open negligently, and so as to make the use of the said street or highway dangerous; and further find that the defendants, or their agents, knew of said hole or ditch; and further find that said ditch or hole might have been secured by due and proper care on their part, so as not to be dangerous at the time of said injury, then the plaintiffs have a right to a verdict for such damages as the jury may believe, from the evidence, they suffered by said injury to their horse, unless the jury shall find, from the evidence, that the plaintiffs, or their agents, did not use reasonable and proper care and diligence to avoid the danger occasioned as aforesaid.

To the refusal of their prayers, and to the instruction granted by the court, the defendants excepted. The verdict was in favor of the plaintiffs for $175 damages, and from the judgment thereon the defendants appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, J.

Archibald Stirling and G. L. Dulany, for the appellants, argued:

1st. That the negligence, if any, in not properly filling up the trench or ditch in question, and repairing the street as it originally stood, was not the negligence of the city, but that of the owner of the horse, or his agent, who had the work done, and the court should have directed the jury that the plaintiff was not entitled to recover.

2nd. That for the acts or omissions of the Mayor and City Council of Baltimore, in its municipal or political character, no action at law can be sustained against them to recover damages; that if under the circumstances detailed in evidence in this case, any omission or negligence could be found in not having the street properly repaved, yet their default was of a municipal or political character, for which they are amenable only to the people, or by indictment, and not in a civil action for damages. 2 Kent., 274, and cases cited in note (a). 7 Mass., 187 Riddle vs. Proprietors of Locks, & c. 4 Pick., 414, Merchants Bank vs. Cook. Angel & Ames on Corp., secs. 31 to 36. 2 Hill, (S. C. Rep.) 571, White vs. City Council of Charleston. 9 Cranch, 43, Terrett vs. Taylor. 4 Wheat., 636, Dartmouth College vs. Woodward. 3 Pet., 409, Fowle vs. Common Council of Alexandria. 17 How., 161, City of Providence vs. Clapp. 20 How., 135, Smith vs. Corporation of Washington. 8 Md. Rep., 95, Mayor & C. C. of Balto., Garn. of Brashears vs. Root. ...