Mayor v. Stallings

• Decision Date: 11 February 1915
• Docket Number: No. 14.,14.
• Citation: 125 Md. 343,93 A. 974
• Parties: MAYOR, COUNSELOR, AND ALDERMEN OF CITY OF ANNAPOLIS v. STALLINGS.
• Court: Maryland Court of Appeals

93 A. 974

125 Md. 343

MAYOR, COUNSELOR, AND ALDERMEN OF CITY OF ANNAPOLIS

v. STALLINGS.

No. 14.

Court of Appeals of Maryland.

Feb. 11, 1915.

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

"To be officially reported."

Action by Susie B. Stallings against the Mayor, Counselor, and Aldermen of the City of Annapolis. Judgment for the plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

T. Scott Offutt, of Towson, and Ridgely P. Melvin, of Annapolis, for appellant. Elmer J. Cook, of Towson, and Robert Moss, of Annapolis, for appellee.

BURKE, J. The appeal in this case is from a judgment entered in the circuit court for Baltimore county in a suit for personal injuries brought by the appellee, Susie B. Stallings, against the appellant, the mayor, counselor, and aldermen of the city of Annapolis. The declaration upon which the case was tried contained two counts. The first count charged that one of the sidewalks on West street, in the city of Annapolis, was negligently suffered by the defendant to be out of repair and unsafe for travel, "whereby the plaintiff, in traveling said street and using due care, fell into a hole in said street, and her hip was severely injured, which injury is permanent." The second count charged that one of the sidewalks on West street, in the city of Annapolis, at a point opposite a dwelling owned by Abram P. McCombs, "was permitted to remain, for a long period of time, out of repair, with a large and dangerous hole in the center of the same, and in an unsafe and dangerous condition for persons traveling upon it, and permitted to remain in said condition for a long period of time, to wit, six months," and that on the 13th of July, 1910, the plaintiff, while traveling over said sidewalk and using due care, fell into the hole in said sidewalk and injured, sprained, and wounded her right hip, which injuries are permanent.

The appellant is a municipal corporation, and is empowered by its charter to prevent and remove nuisances, to levy and collect taxes, not exceeding 1 per centum per annum on all the assessable property in the city, to pass ordinances for paving and keeping in repair the streets, lanes, and alleys in said city, and, in addition to these powers, it is granted the further power to tax any particular part or district of the city for paving the streets, lanes, and alleys therein in a sum not exceeding 1 per centum on the assessable property in said particular part or district. It is provided by sections 14 and 15 of article 38 of the City Code of Annapolis as follows:

"Sec. 14. The city commissioner shall give twenty days' notice to the owners of all property binding on which there are paved footways requiring repairs to have the same repaired in a suitable manner, and if they shall neglect to do so within the time specified, they shall be liable to a fine of five dollars, to be recovered as in other cases.

"Sec. 15. If owners of property, to whom notice shall be given, as provided for in either of the two preceding sections, shall refuse to pave or repair their pavement, the city commissioner shall cause the work to be done in a suitable manner, and the counselor of the city shall institute proceedings to recover the cost thereof, under the powers derived from the charter of the city."

In Baltimore v. Pendleton, 15 Md. 12, in which the plaintiff recovered a judgment for an injury to his horse, occasioned by the digging of a trench or hole in one of the streets of the city into which the horse fell, and was thereby crippled, the court said:

"In Balto. v. Marriott, 9 Md. 174 , in commenting on the clause in the charter of the city of Baltimore, which provides that the corporation 'shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of the city, and to prevent nuisances,' the court declared it to be 'a well-settled principle that when a statute confers a power upon a corporation, to be exercised for the public good, the exercise of the power is not merely discretionary, but imperative, and the words "power and authority," in such case, may be construed "duty and obligation."' And in accordance with this doctrine, which was sustained both by reason and authority in that case, the corporation was held liable for an injury occasioned by a person falling on the ice which was allowed to accumulate on the pavement. The same principle applies to the case now before us."

It was the duty of the defendant to have been prompt and vigilant in enforcing the provisions of the ordinance mentioned.

"To pass an ordinance, and not enforce it, would be the same as if none had been passed, so far as the public interests were concerned." Marriott's Case, supra.

The general principles of law applicable to a case of this kind are fully stated in Keen v. Havre de Grace, 93 Md. 34, 48 Atl. 444. In that case the plaintiff, while walking along the sidewalk of one of the streets of Havre de Grace on a dark night, fell into a hole, and was injured. In declaring the obligations and liabilities of the city, the court said:

"It is not questioned that the city of Havre de Grace has power to grade and repair its' streets and sidewalks (Acts 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. M. & G. C. of Balt. v. Marriott, 9 Md. 160 [06 Am. Dec. 320]; Pendleton's Case, 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 street. 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 defect be of such a character as not to be readily observable, express notice to the municipality must be shown. Burns v. Bradford City, 137 Pa. 367 [20 Atl. 997, 11 L. R. A. 726]; Cook v. City of Anamosa, 66 Iowa, 430 . 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 ; Gschwend v. Mellvale Borough, 159 Pa. 257 ; City of Atlanta v. Perdue, 53 Ga. 607. If, therefore, the evidence in this case shows that there was a defect in the sidewalk, of which the city had knowledge, or by the exercise of reasonable diligence ought to have known, and the plaintiff, while exercising proper care, stepped into the hole and was thereby injured, the municipality would be liable for such damages as ensued."

The general purport and effect of the testimony contained in the record will now be considered in the light of these principles. The plaintiff, a married woman about 52 years of age and in good health, lived with her husband and daughter at 189 West street, one of the public streets of the ...