Thillman v. Mayor

• Decision Date: 30 June 1909
• Citation: 73 A. 722,111 Md. 131
• Parties: THILLMAN v. MAYOR, ETC., OF CITY OF BALTIMORE et al.
• Court: Maryland Court of Appeals

73 A. 722

111 Md. 131

THILLMAN

v. MAYOR, ETC., OF CITY OF BALTIMORE et al.

Court of Appeals of Maryland.

June 30, 1909.

Appeal from Court of Common Pleas of Baltimore City; Thos. Ireland Elliott, Judge.

Action by Bernard Thillman against the Mayor and City Council of Baltimore and another. Judgment for defendants, and plaintiff appeals. Reversed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

J. Marsh Matthews and Hyland P. Stewart, for appellant.

W. H. De Wright and Howard Bryant, for appellees.

BOYD, C. J. The appellant sued the appellees and Isaac S. Filbert for injuries alleged to have been sustained to his properties on the southwest corner of Broadway and Hoffman streets in the city of Baltimore, numbered 1328-1336 North Broadway. The case has some peculiar features. Although the Filbert Paving & Construction Company was made a party by amendment, the declaration alleges that the mayor and city council of Baltimore, being the owner of the beds and alleys in the city and particularly of the beds of Broadway and Hoffman streets and the "10-foot" alley in the rear of the plaintiff's premises, undertook, with the assistance of the defendant, Isaac S. Filbert, "to change the grade of Hoffman street at said point, and to repave the street; the said work being done in such a careless and negligent manner as to seriously damage the said properties of the plaintiff, and the water which had hitherto for years been accustomed to pass out of said alley in the rear of said properties, and out Hoffman street, was diverted from its usual course, and dammed up in such a careless and negligent manner by said defendants as to cause the same to overflow and flood the properties above mentioned of the plaintiff, whereby the same were greatly damaged," etc. It will be observed that the Filbert Paving & Construction Company is not alleged to have been connected with the work, and during the trial the case against Isaac S. Filbert was dismissed. There is no reference to the company in the narr. excepting in the beginning, where it is mentioned as one of the defendants. Then in the evidence, as will be seen later, the cause of the injury was claimed to be the alleged negligent filling and repaving of the alley near Hoffman street. At the conclusion of the plaintiff's testimony the mayor and city council of Baltimore and the Filbert Paving & Construction Company each offered a prayer that there was no evidence legally sufficient to entitle the plaintiff to recover against it and the verdict must therefore be for it. Both of the prayers were granted, a verdict was rendered for the defendants, and from the judgment entered on that verdict this appeal was taken. The prayers do not refer to the pleadings, and hence their correctness must be determined entirely by a consideration of the evidence. 2 Poe, § 302; Con. Ry. Co. v. Pierce, 89 Md. 495, 43 Atl. 940; West Va. Cent. Ry. Co. v. Fuller, 96 Md. 652, 64 Atl. 669, 61 L. R. A. 574, and many other cases. So, although nothing was alleged against the Filbert Company, and the evidence does not sustain the allegations in the narr. against the city, we are not permitted to consider the pleadings in passing on the prayers, but must assume that they were granted with reference to the evidence alone.

It is not denied that there was evidence of injury to the plaintiff's property, and hence we need only determine whether there was legally sufficient evidence that such injury was caused by the defendants, or either of them, in a way which made them liable. It is contended on the part of the city that it is relieved from liability because the work was done by an independent contractor. The general principles applicable where work is to be done by a contractor, upon his own responsibility, who is not subject to the control of the employer as to the manner in which it is to be performed, have been well established in this state since they were so clearly announced by Judge Alvey in De Ford v. State, 30 Md. 179. In that case the court quoted at length from the opinions of Pollock, C. B., and Baron Wilde in Hole v. S. & S. Ry. Co., 6 Hurls & Norm. 488. The former said: "I suggested, in the course of the argument, that where a man employs a contractor to build a house, who builds it so as to darken another person's window, the remedy is not against the builder, but the owner of the house. It may be that the same principle applies to cases where a man is employed by another to do an act which it is the duty of the latter to do. In such cases it is the duty of the owner of the soil to inquire what is in the course of being done —to know what is the plan—to see that materials are good, and to take care that no mischief ensues." Baron Wilde thus stated the principle: "The distinction appears to me to be that when work is being done under a contract, if an accident happens, and an injury is caused by negligence in a matter entirely collateral to the contract, the liability turns on the question whether the relation of master and servant exists. But when the thing contracted to be done causes the mischief, and the injury can only be said to arise from the authority of the employer, because the thing contracted to be done is imperfectly performed, there the employer must be taken to have authorized the act, and is responsible for it." That distinction has been consistently recognized in our decisions since De Ford's Case was determined, and may be illustrated by citing some of them.

In Moores' Case, 80 Md. 348, 30 Atl. 643, 45 Am. St. Rep. 345, the company was relieved because the negligence which caused the accident was wholly collateral to the contract. An employe of the contractor was guilty of negligence in not stopping an engine, and in blowing the whistle as Mrs. Moores was driving along the turnpike. The engine was being used by the contractor for hauling ballast to be placed on the tracks of the railway company. But in that case it was said: "Even if the relation of principal and agent, or master and servant, do not, strictly speaking, exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work." So in Symons v. Road Directors, 105 Md. 254, 65 Atl. 1067, the injury was for blasting, done some distance from the public road by the servants of an independent contractor, with which the agents of the defendants were in no wise connected.

In O'Donnell's Case, 53 Md. 110, 36 Am. Rep. 395, the city was held liable for an accident caused by the plaintiff driving at night into a rope, which the agent of the contractor had stretched across a street, but upon which there was at the time no lighted lantern. The rule contended for by Mr. Cowen, counsel for plaintiff, was approved as follows: "Where the person for whom the work to be done is under a pre-existing obligation to have the work done in a particular way, or to have certain precautions against accident observed, he cannot be discharged by creating the relation between himself and another of employer and contractor." And in Moores' Case, supra, it will be seen from the above quotation that the contractor is not relieved "if he owes a duty to third persons or the public in the execution of the work." In Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. R. A. 482, one who contracted with an independent contractor to make an excavation on his own lot was held liable for injury thereby caused to the house of an adjoining owner when such injury might reasonably have been anticipated as the probable consequence of the excavation, and no notice had been given to the adjoining lot owner. In P. B. & W. R. Co. v. Mitchell, 107 Md. 600, 69 Atl. 422, 17 L. R. A. (N. S.) 974, it was held that: "When work is being done by an...