McCarthy v. Clarke
| Decision Date | 05 April 1911 |
| Citation | 81 A. 12,115 Md. 454 |
| Parties | McCARTHY et al. v. CLARKE. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas; Chas. W. Heuisler Judge.
Action by Olivia F. Clarke against William M. McCarthy and another trading as McCarthy & Co., and others. From a judgment for plaintiff, defendants appeal. Affirmed.
W. H De C. Wright, for appellants Mayor and City Council of Baltimore. Vernon Cook, for appellants McCarthy & Co. J. Cookman Boyd, for appellee.
Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, JJ.
The appellee was seriously injured by stumbling and falling at night over an iron manhole frame temporarily deposited on a sidewalk in Baltimore city, and intended for use in connection with a system of sewers then in course of construction. The suit was against the municipality and McCarthy & Co., the contractors engaged in the work under employment by the city, and the declaration alleges negligence on the part of the defendants in placing the frame upon the pavement, and in permitting it to remain there for a long space of time without light or signal of any kind to warn the plaintiff of its location. A judgment upon verdict was recovered by the plaintiff, and the defendants have appealed. The record contains 15 bills of exception, of which 14 relate to rulings of the court below on the admissibility of evidence, and one to its action on the prayers. There are certain general questions of liability involved in the exceptions, and these will be first considered.
Independently of the theories common to both defendants, the city claims exemption from responsibility for the accident upon the ground that the sewer construction was in charge of independent contractors, and that the frame which injured the plaintiff was deposited by them, without the knowledge of the city officials, at a point remote from the line of the work, and where the representatives of the municipality could not have anticipated that it would be placed, and that, therefore, the rule of respondeat superior does not apply.
It is further insisted that the city is not liable merely on account of its omission to remove or guard the obstruction, because, as it is asserted, the exclusive authority for such purposes is vested in a police department over which the municipality has no control, and its own duty has been performed and its power exhausted by the passage of prohibitive and punitive ordinances on the subject. In support of the proposition last stated, the cases of Altvater v. Baltimore, 31 Md. 462, and Sinclair v. Baltimore, 59 Md. 592, were cited. It was held in these cases that the city of Baltimore was not liable to persons injured by nuisances on the public streets caused by agencies other than those of the municipality, for the reason that under the laws then in force the sole power of abating such nuisances was conferred by the law upon the board of police commissioners of the city. Whether this principle would be applicable under the existing provisions of the city charter and the decisions of this court in Baltimore City v. Beck, 96 Md. 191, 53 A. 976, and Baltimore City v. Walker, 98 Md. 637, 57 A. 4, it is not necessary for us to determine, because it is obvious that such a doctrine could not be applied to a case in which the municipality was itself instrumental in creating the occasion for the obstruction, and because upon the facts now before us we are of the opinion that the city must be held to sustain such a relation to the cause of the accident.
It is not entitled to be exonerated on the ground that the particular acts alleged to constitute negligence were done by independent contractors beyond the scope and intent of the work committed to their charge. The plans for the work in connection with which the manhole frame was to be used indicated a line of sewer along the east side of Broadway, a wide avenue with a central parkway. The point at which the frame was deposited and the accident occurred was on the west side of the avenue, and about 75 feet south of Preston street. The sewer was not actually constructed through this block according to the location contemplated by the original plan; another course parallel to Broadway in this locality having been subsequently adopted. It was testified by the employé who delivered the frame that it was placed on the west side of the avenue because this was a more convenient point on account of the pavement on the east side being to some extent blocked with pipes. The agreement between the city and the contractors provided that the work should be done under the general supervision of the city engineer, who was authorized to direct the order in which and the points at which it should be prosecuted. It was stipulated that the contractors should immediately comply with all the instructions given by the engineer.
It appears, therefore, that the placing of the frame at the point of the accident was in connection with construction work in which the city was interested, and over which it reserved control. In view of such conditions, we are unable to hold the city exempt from liability as a matter of law upon the grounds suggested. The principles which govern the case before us are settled by the decisions of this court in Thillman v. Baltimore City, 111 Md. 131, 73 A. 722, and Baltimore City v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395. In the former case an independent contracting company, employed by the city to grade, pave, and curb a street, changed the condition of an alley opening into the street, as a result of which surplus water flowing in the alley, instead of passing off into a sewer as it had previously done, flooded the cellar of plaintiff's house. It was provided in the contract between the contractors and the municipality that the work should be done under the inspection of the city engineer. The evidence was held legally sufficient to show that the change in the alley was made by the contracting company in connection with the performance of its contract to pave the street, and it was decided that the city, as well as the company, was liable for the resulting injury. In O'Donnell's Case an agent of a contractor employed by the city to repave a street caused a rope to be suspended to prevent travel on it while the work was in progress. A lamp was attached to the rope as a warning, but it was immediately broken and extinguished by stones thrown by boys. The employé in charge took the lamp to his home to repair it, but did not replace it the same night. While he was absent, the plaintiff, in attempting to drive his hack up the street, was injured by coming in contact with the rope. None of the city officials knew that the rope had been stretched across the street. The city nevertheless was held to be liable. In each of the cases cited it was decided to be the duty of the city to have its work done in such manner as to avoid injuries to the public, and that it could not be relieved of this obligation by committing the work to an independent contractor. In the Thillman Case, as in the present, there was the additional consideration that the city had stipulated for the supervision and control of the work by its own engineer, and it was stated as a general rule, which we find clearly applicable here, that, where an employer retains control of the work, he is not relieved of liability by reason of the fact that he is operating through the agency of a contractor. In this case the city sought to have the jury instructed to find a verdict in its favor upon the theory of nonliability which we have discussed, but its prayer to that effect was rejected by the court below, and for the reasons stated we must concur in the ruling.
The proposition upon which the contractor defendants placed most reliance was presented in the third prayer, offered separately on their behalf, in which the court was asked to instruct the jury that if they found from the evidence that these defendants caused a light to be placed on the manhole frame in question on the evening of the accident and prior to its occurrence, and that subsequently the light was stolen or removed by some person unknown, and that the defendants did not know of its removal, and that they made reasonable efforts to maintain a light on the frame on the evening of the accident, then they were not legally guilty of any negligence, and the verdict must be in their favor. There was evidence tending to show that the contractors had caused a lamp to be placed on the frame about half past 5 o'clock on the evening of the accident. Their employé passed that way about a quarter of 7 and found the lamp still lighted and in position. His next visit to this point was at a quarter past 8, and the lamp was then gone. The accident occurred about 7 o'clock. It was contended that this evidence was legally sufficient to support the theory of the prayer, and that its rejection by the court below constituted reversible error. If the only negligence charged in this case related to the maintenance of a light on the manhole frame during the hours of darkness, we might accept as sound and just the principle which the prayer under consideration invoked. The difficulty however, in the way of granting such an instruction under the pleadings and evidence in the present record, is that there is a distinct issue as to whether in placing and keeping the frame on the sidewalk at the point and in the position indicated by some of the witnesses the defendants were guilty of negligence. The prayer proposed to instruct the jury that, if the defendants were not negligent in their efforts to keep the lamp in place and lighted, they could not be found to have been negligent in any respect. Such an instruction could not have been...
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