Taxicab Company of Baltimore City v. City of Baltimore

• Decision Date: 13 June 1912
• Citation: 84 A. 548,118 Md. 359
• Parties: TAXICAB CO. OF BALTIMORE CITY v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

84 A. 548

118 Md. 359

TAXICAB CO. OF BALTIMORE CITY v. MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 13, 1912

Appeal from Superior Court of Baltimore City; James M. Ambler Judge.

Action by the Taxicab Company of Baltimore City against the Mayor and City Council of Baltimore. Judgment for defendant, and plaintiff appeals. Affirmed.

Lawrence J. McCormick and Edwin W. Wells, both of Baltimore, for appellant. Alexander Preston, of Baltimore, for appellee.

THOMAS J.

The declaration in this case, which was brought by the Taxicab Company of Baltimore City against L. F. Johnson, L. F Johnson, Inc., Christ Methodist Protestant Church, and the mayor and city council of Baltimore, alleges that the "said L. F. Johnson, L. F. Johnson, Inc., and Christ Methodist Protestant Church, and each of them, placed and allowed to remain for a long time a large quantity of sand and other building material in the public highway of Baltimore city, known as North avenue, at or near its intersection with Retreat street; that said sand and other material were placed so as unnecessarily to obstruct the highway and in an improper and negligent manner, and during the nighttime were left without a light or signal to indicate danger as required by law or city ordinance, and in the nighttime of January 10, 1911, said defendants negligently permitted said obstruction to remain on and upon said North avenue at or near the intersection aforesaid, and at said time said defendants negligently permitted said North avenue at or near said intersection, to be and remain in bad repair and condition by reason of the said obstruction, and said defendants at said time negligently permitted said North avenue at said intersection to remain in an unsafe condition for ordinary travel by reason of said obstruction, in consequence whereof a cab of the plaintiff, being operated by the agents or servants of the plaintiff, at said time passing along North avenue, at or near said intersection, collided with said obstruction, and was thereby violently diverted from its course and thrown with great violence against a telegraph pole, and as a consequence of said accident the plaintiff's cab was greatly damaged, and the plaintiff suffered great loss, and the plaintiff says that the damages as aforesaid were directly caused by the negligence and want of care of the defendants, and without fault or want of care on the part of the plaintiff directly thereto contributing." The mayor and city council of Baltimore pleaded that "it did not commit the wrong alleged," and the evidence shows that on the 10th of January, 1911 between 12 and 1 o'clock at night, one of the taxicabs of the plaintiff, while being operated by its servant or agent along North avenue, one of the streets of Baltimore city, and going west at the rate of between eight and ten miles an hour, struck a pile of sand, which had been placed and left in the street without a lighted lamp or lantern to warn persons using the street by a contractor or workmen engaged in repairing or erecting Christ Methodist Protestant Church, and was suddenly diverted from its course against a telegraph pole and injured. At the close of the plaintiff's testimony, the court below granted a prayer to the effect that there was no evidence in the case legally sufficient to entitle the plaintiff to recover against the mayor and city council of Baltimore under the pleadings.

It appears from the docket entries that the case was dismissed by the plaintiff in open court as to L. F. Johnson, Inc., and Christ Methodist Protestant Church, and that there was a judgment of non pros as to L. F. Johnson, and this appeal is from a judgment for costs on the verdict in favor of the city. Even when viewed in the light most favorable to the plaintiff, the only charge in the declaration against the mayor and city council of Baltimore is that it permitted the sand to remain in North avenue at night without a light to warn persons using the street of danger, and the evidence fails to show that it was placed there by any one employed by or engaged in work for the city. The primary question, therefore, is: Can the city be held liable for injuries alleged and shown to be due to the fact that the obstruction was left in the street without a light or signal of danger? In the case of Baltimore v. Marriott, 9 Md. 160, 66 Am. Dec. 326,

decided in 1856, where an action was brought to recover damages for an injury sustained by the plaintiff in consequence of the alleged negligence of the mayor and city council of Baltimore in not preventing or removing an accumulation of ice "on the footway on Fayette street," on which the plaintiff slipped and fell and broke his kneecap, the court said: "The act of 1796, c. 68, incorporating the city of Baltimore, among other things, 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 and remove nuisances.' It is 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. *** We are of opinion that the effect of the provision in the statute just cited was to place the corporation of Baltimore in regard to their obligations to prevent and remove nuisances upon the same footing which is held by individuals and private corporations. *** One of these burthens was the obligation to keep the city free from nuisances. *** In order that the city should relieve itself from the obligation, it was not only necessary that it should pass ordinances sufficient to meet the exigencies of the case, but it was also bound to see that those ordinances were enforced. 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."

After the passage of Act 1867, c. 367, creating an independent police department for Baltimore city, and imposing upon it the duty of enforcing, within the city limits, all laws and ordinances, the case of Altvater v. Baltimore, 31 Md. 462, was decided upon the following statement of facts "The plaintiff, Elizabeth Altvater, when passing along Saratoga street, in the winter of 1868, was thrown down by being run against by a sled going along that street at a rapid rate of speed. She was seriously injured by the accident. Before the happening of this accident, a large crowd of persons congregated daily on the said street, and they had been in the habit of doing so for weeks previously, and this crowd had rendered travel on the street inconvenient and dangerous from the speed and number of sleds used, thereby becoming a nuisance. A police officer said he had arrested several of these persons, and they had been discharged by the magistrate." The court held that the city was not liable for the injury sustained by the plaintiff, and in the course of the opinion Judge Stewart said: "The Code of Public Local Laws, art. 4, § 808, makes it the duty of the board of police to 'prevent and remove nuisances' in all the streets of the city of Baltimore, and Supplementary Act 1867, c. 367, imposes similar duty upon the board of police commissioners, as they are denominated in the supplement. Whilst it is the duty of the mayor and city council of Baltimore to pass all proper ordinances authorized by their charter in regard 'to the prevention and removal of nuisances,' and which may not conflict with the duties imposed upon the Board of Police Commissioners (Code of Public Local Laws, art. 4, § 32), they are deprived of the power of enforcing them. *** That duty has been imposed upon the board of police commissioners, who have been substituted as the general agency, to enforce the ordinances of the city. *** The board of police commissioners are not made authorities of the city as such by any provision of law; that part of article 4, § 822, of the Public Local Laws, which made them such, having been repealed by Supplementary Act 1867, c. 367. *** Article 4, § 32, of the Public Local Laws, provides that 'no ordinance heretofore passed, or that shall hereafter be passed, by the mayor and city council of Baltimore, shall hereafter conflict or interfere with the powers or the exercise of the powers of the board of police of the city of Baltimore hereinafter created; nor shall the said city,...