State of Maryland, to Use of Pryor v. Miller

• Decision Date: 15 December 1911
• Docket Number: 1,022.
• Parties: STATE OF MARYLAND, to Use of PRYOR et al., v. MILLER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F. 775

STATE OF MARYLAND, to Use of PRYOR et al., v. MILLER et al.

No. 1,022.

United States Court of Appeals, Fourth Circuit.

December 15, 1911

H. N Abercrombie and Arthur L. Jackson (Robert H. Smith, Raymond S. Williams, Jacob S. New, and Philip B. Watts, on the brief), for James V. Pryor and others.

John H Richardson and George Washington Williams, for Andrew Miller and Kunigunda Miller.

S. H Lauchheimer (Edgar Allan Poe, German H. H. Emory, and Charles A. Marshall, on the brief), for Mayor and City Council of Baltimore.

Arthur D. Foster (James J. Lindsay and John S. Biddison, on the brief), for Board of Com'rs of Baltimore County.

Before GOFF, Circuit Judge, and WADDILL, District Judge.

WADDILL District Judge.

This is an appeal and cross-appeal from a decree of the United States District Court for the District of Maryland, rendered on the 24th day of June, 1910. A brief summary only of the facts will be stated, relying upon the opinion of the learned judge of the lower court (180 F. 796) for a full statement and elaboration of the same.

Kunigunda Miller, the wife of Andrew Miller, one of the libelants here owned a tract of some eight acres of land on the waters of the Patapsco river, near the city of Baltimore, at Willow Grove, Dundalk, Baltimore county, Md. Through her said husband, on the 6th day of June, 1906, she made application to the harbor board of the mayor and city council of the city of Baltimore, for a permit to build a bulkhead into the Patapsco river, which was duly granted; previous leave having been given on the 16th of March of the same year, by the same board, to build a platform pier within the inclosure of the bulkhead. This bulkhead extended out into the river from the northern and southern lines of said tract of land, approximately at right angles thereto, some 600 feet, and the purpose was to connect the offshore ends of these bulkheads with each other, a distance of some 700 odd feet, by the construction of another bulkhead, which would be substantially parallel to the shore line, called in the record the western bulkhead, the other two being the northern and southern bulkheads, respectively, thus forming a sheltered lagoon or harbor, of some eight acres, the ultimate purpose being to fill in the lagoon, and make an addition of eight acres of land to the mainland, when filled in as was contemplated would be done in the future.

Pursuant to this plan, by the summer of 1909, the south bulkhead was about completed, and work had been begun on the west bulkhead at its intersection with the south bulkhead, and four rows of piles had been driven northward for something over half the length of the western end. These piles had not been cut off on the 5th day of August, 1909, the date of the accident, and on that day all the piles forming the north bulkhead had been driven, for some 175 feet or thereabouts from the shore, they had been cut off, capped, and a platform placed over them; the next 200 feet or thereabouts had been cut off, and not capped on the day of the accident, and were from one foot to fifteen inches below the surface of the water, and from the end of this open space to the outshore end, a distance of about 200 feet, piles were still standing as they had been originally driven, and projected from two to six feet above the water; thus leaving the west end of the lagoon, from about the middle thereof to the northern end, unobstructed, and without any piles, and the northern line of the bulkhead commencing some 200 feet from its outshore end, submerged under the water for a distance of about 200 feet, leaving an open sheet of water, through which the launch, the accident to which is the subject of this litigation, endeavored to navigate, in ignorance of the submerged piles referred to. Nothing lay between this bulkhead construction and the channel of the Patapsco river, except an open expanse of navigable water, over which tugs, drawing from six to nine feet of water, habitually navigated in passing in and out of said lagoon. The premises of Miller had been fitted up as a pleasure park and resort, and were used as picnic grounds by Sunday school parties and others, the place being a short distance from Baltimore, and connected directly with the city street car system. On the day of the accident, a Sunday school picnic of the Waverly Baptist Sunday School, occupied the grounds, and one of the libelant's intestates, J. G. Pryor, came to the picnic grounds in a small gasoline motor boat, having entered the lagoon from its western end, that is, through the opening caused by the lack of completion of the western bulkhead, which was used for the purpose of affording water ingress. The launch was 27 feet long, and 6 feet 6 inches beam, drawing from 18 to 24 inches of water. Pryor observed other launches within the lagoon, and he invited the superintendent of the Sunday school and others to go with him for a short trip on the water. He took his launch through the opening of the west bulkhead, and returned the same way. He subsequently invited others, and, on his second and fatal trip, there were 18 persons, 11 adults and 7 children, the latter ranging from an infant, to boys and girls of about 15 years of age. The launch was not crowded; there was scarcely any wind, and the water was smooth; and upon starting Miller was on his wharf about to get in his own launch, and said nothing to Pryor, or, indeed, to any one, about the submerged piles. The course that Pryor desired to navigate on his second trip took him through the open space in the north bulkhead, wh

His craft, as it seems other shipping without his knowledgeich appeared to be an opening straight out to the channel. had previously done, struck upon the submerged piles, causing the accident complained of; and as a result five persons, two adults and three children (one of whom was the engineer and brother of the owner of the launch), were drowned, and another adult seriously injured.

Original libels and intervening petitions were duly filed against Andrew Miller and his wife, the mayor and city council of Baltimore, a body corporate duly incorporated by the Legislature of Maryland, and the board of county commissioners of Baltimore county, in the state of Maryland, and upon appropriate pleadings and proofs being had and taken, the decree complained of was entered by the lower court. The decision of that court was that the cause of action was one properly cognizable in an admiralty court, that Miller and wife were liable to libelants for the damages sustained, and that the mayor and city council of Baltimore and the board of county commissioners of Baltimore county were not responsible therefor. From this decision, relieving the parties last named, the libelants and intervening petitioners appealed, and Miller and wife likewise appealed from the decree against them.

It is as to the correctness of the decision thus rendered by the lower court that we have to pass. The conclusion reached by us, for the reasons stated in an able and elaborate opinion filed by the learned judge of the lower court (180 F. 796, supra), finding the facts and giving his views on the law applicable thereto, is that the lower court was plainly right in holding that the cause of action was one properly cognizable within the admiralty and maritime jurisdiction of the courts of the United States; that Miller and wife were liable for the losses sustained; and that the county commissioners of Baltimore county were free from fault. We are unable, however, to concur with the lower court as to the nonliability of the mayor and city council of Baltimore. This latter question was fully considered by the lower court, which, after quoting from the case of Mayor & City Council of Baltimore v. Marriott, 9 Md. 174, 66 Am.Dec. 326, commented thereon, and on other cases there referred to, as follows:

'In that case the city was held liable to an individual who had slipped on the ice which had been allowed to accumulate on one of the city's sidewalks. There was a city ordinance which required the removal of snow and ice. The city had made no attempt to enforce it. The principle stated in Marriott's Case is still the recognized law in Maryland.

'A municipality which does not prevent boys from making a practice of coasting on its streets is liable for injuries occasioned by their sleds. Taylor v. Mayor of Cumberland, 64 Md. 68, 20 A. 1027, 54 Am.Rep. 759.

'When it allowed 'cows armed with dangerous horns and equipped with annoying bells' to wander in its streets, it was liable for injuries occasioned to a passer-by who was 'violently horned, tossed, thrown and trampled upon.' Cochrane v. Frostburg, 81 Md. 54, 31 A. 703, 27 L.R.A. 728, 48 Am.St.Rep. 479.

'It is liable to a foot passenger knocked down by a bicycle when it had permitted bicycle riders, in spite of a municipal ordinance to the contrary, to ride on the streets and sidewalks at an immoderate rate of speed. Hagerstown v. Klotz, 93 Md. 437, 49 A. 836, 54 L.R.A. 940, 86 Am.St.Rep. 437.

'The libelants assert that a submerged obstruction in navigable water is in itself a nuisance. They rely on Harmond v. Pearson, 1 Campbell, 515. In that case Lord Ellenborough said: 'It is a peremptory law of navigation that, when any substance is sunk in a navigable river so as to create danger, a buoy should be placed over it for the safety of the public.'

The same rule was laid down in Philadelphia, Wilmington &Baltimore R.R. Co. v. Philadelphia & Havre De Grace Steam Tow Boat Co., 23 How. 217, 16 L.Ed. 433.

'Their contention, therefore, may be briefly summed up as follows The submerged pile was a nuisance. The city was given power to compel its removal. The city did not exercise reasonable diligence...