53 A. 976 | Md. | 1903
The plaintiff, who is a married woman, brought a suit, on the 20th day of August, 1900, in the Superior Court of Baltimore City against the Mayor and City Council of Baltimore, for personal injuries received by her while driving along one of the public avenues of Baltimore City, known as Fulton avenue. The case was tried before a jury in the Baltimore City Court and the plaintiff recovered a judgment for $1,000.
The cause of action is thus stated and set out in the plaintiff's declaration; that Messrs. Thomas and Morgan of the City of Baltimore and each of them placed and allowed to remain for a long time a large quantity of bricks and other building materials in the public highway of Baltimore known as Fulton avenue, at or near its intersection with Walbrook avenue; that these bricks and materials were placed so as unnecessarily to obstruct the highway, in an improper and negligent manner, and during the night-time were left without a light or signal to indicate danger, as required by the city ordinance; that on the night of June 26th, 1900, the defendant negligently permitted the obstructions to remain on and upon Fulton avenue, at or near its intersection and negligently permitted the avenue to be and remain in bad repair and condition; omitted to have it properly lighted in the night-time and permitted *189 it to remain in an unsafe condition for ordinary travel, in consequence whereof a carriage with the plaintiff, passing through the avenue, collided with the obstruction, and was thereby overturned, the plaintiff thrown out, and in consequence thereof was severely and permanently injured; that the injuries to the plaintiff were directly caused by the negligence and want of care of the defendant and without fault, or want of care on the part of the plaintiff, directly thereto contributing.
The questions presented for our consideration arise upon exceptions to the granting of the plaintiff's prayers and to the rejected prayers of the defendant. At the close of the plaintiff's case, the defendant offered three prayers, to the effect that the plaintiff had offered no evidence of negligence on the part of the city and that the case be withdrawn from the jury. We find no error in the ruling of the Court upon the rejection of the prayers in this exception and as they were subsequently offered at the close of the case, we will consider them on the defendant's second exception.
It appears from the evidence that the plaintiff was in a carriage with her husband and child, on the night of the accident and was driving along Fulton avenue, Baltimore, and drove into a pile of bricks lying in the street and was injured. The bricks had been placed in the street by certain builders and contractors, who were building houses at or near the place of the accident. The evidence further shows that there was no light burning at the time or at the place of the accident, either on the pile of bricks or in the street; that the city electriclight was out and had not been burning at Fulton and Walbrookavenues for several nights before and after the accident, and there was no light burning to point out the obstruction in the street.
There was also testimony that it was a dark night and the entire avenne was dark; that the bricks were scattered from the curb-stone to the car track, so as to obstruct the free passage of vehicles except down the car track.
It is contended upon the part of the appellant that if any liability exists at all in this case it rests upon Messrs. Thomas Morgan, the contractors and builders, and not upon the defendant, *190 the Mayor and City Council of Baltimore, because by ordinance (sec. 87 of Art. 48 of the City Code), it is provided that "whenever any piles of bricks, stones, lumber or other building material shall be left in any of the streets, lanes, or alleys of the city, during the night, they shall be designated by displaying a lighted lamp or lantern at such part of the same, as to be easily observed by persons passing along the street;" and that the injuries to the plaintiff were caused by the failure of the contractors to keep a light burning on the obstruction placed by them in the avenue where the accident happened.
The question, then, comes to this, what was the duty of the defendant under the evidence in the case in respect to the plaintiff at the time of the accident and was the injury caused by the failure of the defendant to perform that duty?
By sec. 6, ch. 123, of the Acts of 1898 (city charter), the Mayor and City Council of Baltimore shall have full power and authority, to regulate the use of the streets, highways, roads, public places and sidewalks by foot passengers, vehicles, c., and prevent encroachments thereon and obstructions of the same. To erect lamps in any of the streets, lanes or alleys of the city, and cause the same to be lighted, at the expense of the city, and to provide for and regulate the construction, inspection and repairs of all private and public buildings within the city.
There can be no question, then, that as the municipal authorities of Baltimore, had the power and authority to regulate and to remove obstructions from its streets, and to cause the streets to be lighted at the expense of the city, it was its plain duty to have kept the avenue lighted and in a safe condition for public travel, on the night of the accident, in question.
The law is well settled that if it negligently fails so to do, and persons acting without negligence on their part are injured while passing along its highways, the city is liable in damages for the injuries caused by the neglect, and the person so injured can recover against the municipality therefor. Mayor and CityCouncil of Baltimore v. Marriott,
The Court below, we think properly stated the law of the case in the plaintiff's second prayer, which was to the effect that if the jury believed that the defendant in the night-time of June 26th, 1900, negligently failed to properly light Fulton avenue at or about Walbrook avenue, and that it was a public highway in the city, and that in consequence of the failure so to light this highway the plaintiff was injured while traveling in the night-time in a carriage over the highway, and using such care as persons of ordinary prudence would use under like circumstances, then their verdict must be for the plaintiff.
We find no error in the rejection of the prayers submitted on the part of the defendants. The first prayer was properly rejected, under the doctrine laid down by this Court in Rowe v.B. O.R.R. Co.,
The municipality could not escape liability, for its neglect of duty in not having its streets and avenues lighted at night, because of the failure of an electric light company who had contracted to light the streets, had neglected its duty. The neglect of the company would be the neglect of the city. Hayes
v. West Bay City,
The defendant's second and fourth prayers asserted propositions of law not applicable to the case and are controlled by the decisions of this Court in Conowingo Bridge Co. v. JacobHedrick,
The vice of these prayers consisted also in the omission to state, that the injury was caused solely by the failure of the contractors, Thomas and Morgan, to have a light burning on the obstruction placed by them in the street, whereas it submitted the proposition that if the injury was caused by the negligence of the contractors, c., the city was not responsible for such failure. The evidence shows, however, that if the city had performed its duty in having the street lighted on the night of the accident it would have been a sufficient warning of the place of danger and the accident would not have occurred, *192 notwithstanding the failure and neglect of the contractors to have a light burning on the obstruction, as required by the ordinance.
The case of Sinclair v. The Mayor, c.,
The facts disclosed by the proof here if found by the jury to be true, were legally sufficient to justify the verdict found for the plaintiff and there being no error in the rulings of the Court of which the defendants can complain, the judgment will be affirmed.
Judgment affirmed with costs.
(Decided January 14th, 1903.)