Mayor of Baltimore v. Brannan

14 Md. 227 | Md. | 1859

Tuck, 3.,

delivered the opinion of this court.

The case before us is, substantially, as follows: Ordinances were passed by the defendants for rebuilding the Bel-Air market house, and for the erection of a temporary one for the accommodation of the public, until the new one should bo completed. After the building had been taken down, and the temporary one put up, and in use as a market, a hole was dug within the limits of the old house by persons who had no business there, into which the plaintiff fell, during market hours, on the night of October 8th, 1853. How this happened does not appear: the witnesses speak of him as in the hole when they first saw him. That he was seriously injured is shown by the proof. The hole was about twenty feet from a flat outside the old market house, but within the space taken for the new one, where country people were accustomed to sell vegetables, and were selling at that time, against the orders of the market-master, who had warned them off. At the time of the accident the contractors had taken down the old house, and by means of a plow, had indicated the outlines of the new one, wr ich included the flat, and placed along the furrow granite stones for the work, which, with lumber placed at the end next Gay street, about thirty feet from the hole, were intended to serve as obstructions to keep the people off. The temporary market had been put up and in use since the 12th of September.

We have no idea that this suit can be maintained, on the ground of negligence on the part of the defendants’ agents in removing the old house. If that were the only proposition, it might be answered, that the owner or person in charge of property undergoing repairs, or being rebuilt, is not responsible for damage to one who voluntarily goes amidst the ruins, having no business there. He cannot ascribe to the supposed negligence of others, that which results from his own imprudence.

But it is contended that, by force of the charter—1796, ch. 68, sec. 9—it was the duty of the city'' authorities to prevent, and remove nuisances of this kind. It is true that, in the ease of The Mayor, &c., vs. Marriott, 9 Md. Rep., 160, it was decided, that the charter placed the Corporation of Baltimore, in this regard, upon the same footing which is held by individuals and private corporations; and as the defendants had authority “to erect and regulate markets,” as well as to “prevent and remove nuisances,” it would follow that they had assumed the duty, and the consequences of negligence in its performance, of keeping the established markets free from nuisances. This liability, however, could not be enforced where the party injured had not observed ordinary care and diligence; nor where he met his accident at a place, which, at the time, was not an authorized market place, or where buying and selling were carried on against public authority. When the old house was taken down the ground ceased to be a market place, and the fact of its removal, and the erection of a temporary house, indicated to the public that they could not go upon the old site to sell and buy, with the same privileges and indemnity, in respect thereto, as before the established market had been discontinued. The fact, that hucksters were selling on the flat, as formerly, cannot affect the question, because that would be allowing the plaintiff to protect himself against the consequences of his own act, under cover of the unauthorized acts of others.

But then it is claimed that the plaintiff was injured whilst passing over the old ground, towards the temporary market house. We do not perceive the right of the party to pass that way, except upon the hypothesis assumed in his prayer, “that he had no other way by which to proceed to the temporary market in safetyIf this was the only way, or had been set apart by the city authorities as a passage way to the market, we think it should have been kept free from nuisances and obstructions, from which damage might result to persons whilst passing and repassing during market hours. But the circumstance that others were passing that way, does not render the city liable to the plaintiff; they were all there at their own peril, if there was no permission to use it for access to the temporary market, and none of them could set up any demand against the city, as for negligence, in respect to its condition as a public way.

According to these views, it follows, that the plaintiff’s prayer was erroneously granted. It assumes the duty of the city to keep the hole filled up during market hours, when, as we have said, the ground had ceased to be a market place. It was also erroneous in this, that there was no evidence on the subject of care and diligence on the part of the plaintiff, or that he had no other way by which to proceed to the temporary market in safety, or that he pursued the same path usually taken by others. If the city authorities, or those having the market in charge, had indicated this as a way to the temporary market, the city would be chargable for negligence, if any, in permitting the way to be obstructed by nuisances of this kind, but there is no such evidence. The fact that others used the same route, did not make it a way in the sense that would impose on the city the duty of keeping it clear.

Upon the case, as presented by the evidence, we do not perceive that there is any cause of action against the city authorities. Municipal corporations are responsible, in many cases, for the manner in which the duties of their subordinates may be performed; but it would be extending the doctrine beyond the limits of reason and public policy , to enforce responsibility under the circumstances disclosed by this record. To say the least, it was imprudent in the plaintiff to have ventured at night, over the site of a recently demolished market house, where he might reasonably have expected to find obstacles and hindrances, from which injury might result to others as well as himself; and where, he must be considered as having known that, the corporation had been doing nothing more than the charter and ordinances authorized, in reference to the erection and regulation of markets.

(Decided. July 15th, 1859.)

Having disposed of the case on the appeal of the defendants, it is unnecessary to consider the prayers granted at their instance, from which the plaintiff appealed.

Judgment reversed.