Flynn v. Canton Co.

40 Md. 312, 1874 Md. LEXIS 64

• Court: Court of Appeals of Maryland
• Decided: June 9, 1874
• Status: Published

Opinion

Miller, J.,

delivered the opinion of the Court.

This is an action on the case by the appellant against the appellees, to recover damages for personal injuries sustained by the plaintiff, in consequence of slipping and falling upon ice covering the pavement of a public street in the city of Baltimore, in front of premises occupied by the defendants.

The proof shows that the plaintiff while on her way to church, on the morning of the 27th of February, 1873, slipped and fell upon a sheet of ice on the pavement or sidewalk of Q’Tlonnell street, and by the fall, her right arm was broken and permanently disabled; that she was walking at the time with ordinary care, and could not see the!i ice because of a slight covering of snow which fell during the preceding^pighP; that the pavement where the accident happened was in front of the Canton Market House, then in the possession and occupation of the defendants, a body corporate, under a lease from the city. It was further in evidence that snow had fallen frequently from time to time during the winter, prior to the accident, and was permitted to remain and accumulate as it fell on this pavement; that the police officer on that beat had notified the defendants several times during January and February before the accident, to remove the ice and snow which had thus accumulated, but it had not been done, and the pavements around the market were never touched; that the snow was melted by the sun, and the water thus formed was frozen the night before the accident; and that the pavement was smooth and the ice formed in a smooth sheet over it.

The action is grounded on the neglect of the defendants to comply with an ordinance of the city, which made it the duty of owners or occupiers of property, to clear away snow and ice from the pavements or sidewalks contiguous to their premises. The argument, very ably presented, is that this was a duty cast by law upon the defendants, and if from their neglect to perform that duty, special injury has resulted to the plaintiff from the nuisance or obstruction thus suffered, or permitted to exist, they are liable in damages therefor. Like ordinances have been in force in Baltimore and other cities of the State for many years, and this is the first instance in which such an action has been brought against the property owner. This however, is no valid reason why the action should not be sustained, if it shall appear to be founded on well established legal principles. But the facts that it is a case of first impression in this State, and that it involves a question of very great interest and importance to the inhabitants and property owners of the cities where such ordinances are in force, have induced the Court to give it a very careful consideration.

There is not in this State, as there is in many others, any statute providing that municipal corporations and comity authorities, having the care and control of public streets, roads, and highways within their limits, shall keep the same in good repair so as to he safe and convenient for the passage of persons and property, and giving in express terms an action on the ease to any person receiving injury in consequence of any obstruction or defect therein. Such actions against these corporate authorities have nevertheless been sustained by tbis Court, and it is important to notice the grounds upon which the liability is placed.

In Marriott’s Case, 9 Md., 160, a case very similar to the present, the action was against the municipal corporation, and the Court held that the provision in the charter of the city, that the Mayor and City Council “ 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” confers a power to he exercised for the public good, the exercise of which is not merely discretionary hut imperative, and the words “power and authority” in such cases mean duty and obligation; that a disregard of the duty thus imposed rendered the corporation liable in damages, and that the city had not brought itself within the saving of having used reasonable diligence in removing the accumulation of ice which constituted the nuisance complained of, by the mere passage of ordinances providing for the removal of snow and ice from the pavements of the streets, hut was hound to make vigorous efforts to enforce such ordinances in order to relieve itself from this obligation and liability.

In Pendleton and Harlan’s Case, 15 Md., 12, the action, also against the city corporation, was to recover damages for injury to the plaintiff’s horse, occasioned hy falling into a trench that had been dug in the street. The trench ■'was dug by the owner of a house for the purpose of introducing water into it from the main water pipe belonging to the city, and running along the centre of the street, and it had been/filled up with earth and paving stones placed upon it, but in such manner that by reason of snow and wet, the ground was so soft that the horse sunk into it and thus sustained the injury. The arrangement, provided for hy ordinances, by which lateral pipes are inserted into the main pipe was this : the officers of the corporation for an established charge paid to it, bore a hole in the main pipe, and the rest of the work is done by the persons into whose premises the water is to be conducted, the necessary excavation, filling up and paving being also done by the owner of the property. The Court held that the fact that these responsibilities were thus imposed on the property owner, did not relieve the corporation from the obligation under its charter, to keep the public highways within, its limits, free from nuisances and in a condition to be safely travelled, and following Marriott’s Case, affirmed the judgment against the city. Whether the plaintiffs could not have maintained their action against the owner of the house for the negligent manner in which he filled up the trench, or whether the city having paid the judgment had not a ■remedy over against him, as was held in Chicago City vs. Robbins, 2 Black, 418 and 4 Wallace, 657, are questions which were not raised or considered in that case.

Next in order is Duckett’s Case, 20 Md., 468. That was a suit against County Commissioners, (the first instance of such an action in this State) for negligently suffering a public county road to be in such bad repair as to be impassable with safety, whereby the plaintiff in travelling thereon with wagon and horses, and using due care, had one of his horses killed. The case was very carefully considered. The previous decisions of this Court bearing on the subject and many authorities elsewhere were reviewed. The Court was there pressed with the decision of Chancellor Kent in Bartlett vs. Crosier, 17 Johns., 439, in the course of which, that distinguished jurist expressed the opinion that commissioners of'highways in Hew York were not liable to private suits for damages, occasioned by had roads or broken bridges, because, among other reasons, the law of that State had not supplied them with the coercive power requisite to meet and sustain, the enormous and1 dangerous responsibility which would he cast upon them if they were held liable to individuals to any extent and for any damage. The Court, whilst admitting the force of this reasoning, held it did not apply to the case before them, inasmuch as the law of this State had not only created the County Commissioners bodies corporate, with capacity to sue and he sued, and charged them with control over the county roads and bridges, but had also invested them with power to levy taxes for their repair and improvement, and to pay all debts expressly or impliedly contracted, thereby supplying them with ample means, and arming them with coercive power sufficient to meet and sustain all their liabilities, placing in fact all the resources of the county at their disposal, to enable them to perform their obligations, express or implied. They then say, “here is a concurrence of all the conditions necessary to constitute legal liability ; a duty imposed by law, means and agents placed at their command to execute it, and capacity to sue and be sued.”

Then follows Allvater’s Case, 31 Md., 462, which was also a suit against the municipal corporation. The plaintiff, whilst passing along Saratoga street, was struck by a sled in rapid motion, thrown down and serioxxsly injured. At the time, and for weeks prior to the accident, a large crowd had daily congregated on this street and rendered travel on if inconvenient axid dangerous from the speed axid ixuniber of sleds used by them, thereby creating a nuisance. The Court decided the corporation was not responsible, because by legislation subsequent to Marriott’s Gase, the Board of Police had been created, deriving their existence from and strictly within the jurisdiction of the State authority, and invested with the exclusive control of the entire police force of the city, whereby the city corporation was deprived of the power to enforce their ordinances respecting nuisances. Whilst the provision of the city charter on that subject still remained in force, it was made also the duty of this Police Board to prevent and remove nuisances, and they were armed with the power to perform that duty. The Court therefore held that under these circumstances the duties and obligations of the Mayor and City Council were qualified and limited by the provisions of the law creating the Police Board, and they say, “where the power and authority are conferred by the statute, .the party possessing them becomes necessarily responsible in actions like this for their proper exercise; but it is equally true that in the absence of such power and authority there can be no such consequent obligation,” and “it is but just that responsibility for the proper discharge of duty should result from the power to perform the duty.”

From this review of our Maryland decisions on this subject, it is manifest the liability of these corporate authorities in actions like the present rests not simply upon the ground that a statute has imposed upon them a duty, but upon the further fact also that it has provided them with the means and clothed them with the power to enforce or discharge that duty. Is then liability to such an action cast upon the property owner by reason of neglect to perform the duty or service required of him by the ordinance in question ? What is that ordinance ? It provides that “it shall be the duty of each and every person, incorporated society, or public institution using or occupying in any manner, or for any purpose whatever, any house, store, shop, stable or tenement of any kind, and of persons having charge of churches and public buildings of every description, and of owners of unoccupied houses and of unimproved lots, situate on any paved street, lane or alley in the city,” within a certain prescribed time after the fall of any snow or formation of any ice, “to remove and clear away, or cause to be removed and cleared away, the same from the foot pavements fronting the respective” premises, “ so used, occupied or owned by them, or under their charge, in such manner as not to obstruct the passage of the water in the gutters, under a penalty of two dollars for every neglect beside the expense of clearing the same away under the direction of the police officers, in the mode provided in the succeeding section,” and that section provides that “it shall be the duty of the police officers to cause the snow and ice to be removed by the persons employed for the purpose of cleaning the streets, from the footways of the bridges within the city, and from the flag-stones placed at the several intersections of the streets, as also to remove the ice and other obstructions to the free passage of the water at the intersections of the several streets of the city, and to cause the snow and ice to be removed from the foot pavements fronting the houses, stores, stables, churches, public buildings, lots, or tenements of such persons as shall neglect or refuse to remove the same, at the expense of the~cRyflSThe first instance, to be afterwards recovered from the person or persons so neglecting or refusing.” Unquestionably this ordinance is a valid exercise of the power conferred upon the city by its charter, and is operative to the extent and for the purpose contemplated by those who enacted it. It may even be further conceded, as the appellant’s counsel insists, that it has the same effect within its limits and with respect to the persons upon whom it lawfully operates, that an Act of the Legislature has upon the citizens at large. But the question here is what is its scope and effect ? Does liability to a private action follow from neglect to perform the duty or service thus prescribed? In our judgment it does not. The whole design and effect of this ordinance, was to secure the proper application of whatever labor and means were necessary to discharge the obligation then resting upon the city to keep its streets in a condition to be safely travelled. The work enforced under it, and the expense of doing it when performed by the employees of the city, together with the fines or penalties for neglect which may be imposed and collected, relieves the city to that extent from charges to which it would be otherwise subjected. Stated in a different form, our view of the effect of this ordinance is this: at the time of its passage it was the duty of the city to remove snow and ice from the sidewalks of its streets, so as to render them safely passable. The city was then provided with the means and power to discharge that duty. In the exercise of that power, it saw fit to provide by ordinance that the owners and occupants of premises abutting the sidewalks, should either remove the snow and ice therefrom, or be charged with the cost of such removal if done by its own officers or employees, besides being subjected to a jrenalty for each neglect. The property owners were thereby made the agents of the city for that purpose, just as the police force was. The two are placed on the same footing with respect to the liability we are now considering. It is made the duty of the former to do it in the first instance, and the duty of the latter to cause it to be done in case of neglect or refusal by the former. If a private action for damages lies against the former by reason of neglect to discharge the duty imposed by this ordinance, it lies equally against the latter. If it lies, against the latter, then every ordinance defining in similar terms the duties of police officers, street commissioners, and other officials, agents or employees of the city, subjects them to a like responsibility. We cannot think such a result was ever contemplated by the framers of ordinances of this character. We find it supported by no adjudged case, and in our opinion it is not sustained by any sound legal principle. Again the persons upon whom this ordinance operates are provided with no means, and armed with no power adequate to meet the responsibility that would he thus imposed on them. They are required to perform this service for the benefit of the public, either by their own labor, or through their own private and unaided resources. The proposition contended for by the appellant would subject to the same liability not only resident owners and occupants of property, but nonresident owners- of vacant lots and houses, and persons having charge of the courthouse, churches and all other public buildings in the city. The duty or service here required is for the benefit of the public, and in considertion of no private pecuniary gain to those upon whom it is imposed. It is not like the case where an individual is hound by a private statute under which lie derives a benefit, or by a certain tenure to keep a road or bridge in repair, nor like the case of turnpike companies or other private corporations charged with the performance of certain duties by the Acts under which they are incorporated. In such cases the duty is perfect and binding at all times, and its neglect is followed by this'responsibility, because it is founded on a valuable consideration or made the condition of the grant. Such being the nature of the duty required, and such being the character of the ordinance in question, we are of opinion the only liability resting upon the property owner is that which the ordinance itself imposes, viz: the prescribed fine or penalty for each neglect, and the cosjiof removal in ejerqq instance of his refusal jor_ neglect. JBy enforcing these, every"ohject the ordinance was intended to accomplish will he attained. The liability of the parties upon whom it operates extends no further, and against them an action like this cannot he maintained.

In so determining we recognize-the well settled principle that whenever a party causes, constructs or creates a nuisance or obstruction in a public street or highway, he is responsible in damages to any one who has received special injury in consequence thereof. Nor do we controvert the doctrine of the case of Robbins vs. Chicago City, that if, in such case, the municipal corporation is made responsible for the injury, it has, unless it concurred in the wrong, a remedy over against the party immediately in default. We likewise accept the law so forcibly stated by our predecessors, in Owings vs. Jones, 9 Md., 108. In that case the defendant, without complying with the requirements of the city ordinances on that subject, opened a hole in a street leading to a vault or sink, and kept such a weak and insufficient covering upon it that the plaintiff slipped and fell into the vault and sustained injury. For this wrongful and unlawful act the defendant was held responsible in the action, and in reply to the argument in his behalf, that the fact that he had not complied with the ordinances could in no wise affect him in the case, the Court said: “We think otherwise. The doing of an unlawful act subjects the doer to every consequence which flows from it. This is a principle of universal operation, and founded in good sense and public justice. He stands in a different light from one who does a legal act, hut does it so imperfectly that it may occasion injury. In the one case there is a positive and reckless contempt and defiance of the commands of the law, and in the other; a mere carelessness, which, however culpable, is free from the charge of wilfulness.” There is, however, as we think, a plain distinction between such cases and the one before us. Here the nuisanee, if such it he, was not caused or created by the act of the party sued. The ice, the occasion of the injury, was not on the property of the defendants, nor was it placed on the pavement through the slightest instrumentality or agency on their part. It was not even formed from water discharged or flowing from their premises. If from carelessness or negligence in the use or management of water, or water-pipes in their buildings or on their premises, the water from which the ice was formed, was suffered to escape or flow from their premises into the street and over the pavement, they would stand in a different position, because they would then have participated in causing the nuisance,, or obstruction. But there is no such feature in this case. Upon the facts in the record before us, the ice on which the plaintiff fell was formed solely and exclusively by the action of the elements.

Reference has also been made, in support of the appellant’s position, to several recent English decisions, only two of which need be noticed.

The first is the case of Crouch vs. Steel, 3 Ellis & Blackburn, 402. There, by an Act of Parliament, it was made the duty of ship-owners to keep on hoard their ships a sufficient supply of medicines suitable to accidents and diseases arising on sea-voyages. A seaman who had suffered special injury from, neglect of this duty, brought an action on the case for damages against the ship-owner, and the Court of Queen’s Bench held he was entitled to maintain it, notwithstanding the Act had provided a penalty for such default, recoverable against the ship-owner at the suit of any person. In the course of his judgment in that case Lord Campbell, C. J., said: “The Statute of Westm. 2, (1 Slat., 13 Ed., I.) c. 50, gives a remedy by action on the case to all who are aggrieved by the neglect of any duty created by statute.” That statute is not in force in this State. Kilty’s Report of Statutes, 23. But besides this, the Act relied on in that case provided a benefit for seamen as a class. It required ship-owners who derived gain and profit in the prosecution of their private business from the labor and services of seamen, to discharge a certain reasonable duty for the preservation of the health and comfort of those in their employment, and upon this view of the statute, we think the decision in that case is rested.

This appears from the citation by his Lordship of the just and reasonable doctrine laid down in Com. Dig. (Action upon Statutes, F.,) viz: “In every case where a statute enacts or prohibits a thing for the benefit of a person, he fhall have a remedy upon the same statute for the thing enacted for his advantage, and for the recompense of a wrong done to him contrary to said law.” The distinction between that Act and this ordinance is broad and obvious. The latter was not enacted for the benefit of the plaintiff, as an individual, or as one of a particular class, but for the public at large. She was not in the employment of the defendants, and they were deriving no advantages from her services or labor. It belongs to an entirely different class of legislation.

The other is the case of Atkinson vs. Newcastle & Gateshead Water Works Company, Law Rep., 6 Exchq., 404, decided in 1871. There the company, by a special Act of Parliament, acquired the right of taking lands, appropriating streams, &c., and were required to lay pipes, and supply all the inhabitants of the district within the limits of the Act, with water, at a rate which they were authorized to charge. By another section of the same Act it was made their duty to keep their pipes in which fire-plugs were fixed, charged with water at a certain pressure, and to allow all persons at all times to take and use such water for extinguishing fires without making compensation for the same. A penalty was also imposed for the non-performance of this duty. The plaintiff’s house, situated within the limits, took fire, and, in consequence of an insufficient supply of water in these pipes, the fire could not be extinguished, and his house and other buildings were consumed. He then brought his action for damages against the company. The question whether he could maintain the suit was raised by demurrer to the declaration, and the Court of Exchequer gave judgment in his favor. Kelly, 0. B., rests his judgment on the case of Couch vs. Steel, and quotes that portion of the opinion of Lord Campbell in which the Statute of Wesim. 2 and the citations from Comyn are relied on. Martin, B., did not dissent, hut said: “It appears extraordinary that this company should, without express words he made an insurance office for all Newcastle and Gateshead.” Bramwell, B., said the case was decided hy the authority of Couch vs. Steel, hut he would have come to the same conclusion without it. “The statute,” he says, “lias imposed on the defendants this duty. They have undertaken this duty and have consented it should he put on them, in consideration, I suppose, of the benefits they derive from the powers conferred on them by the statute. Now when a duty is imposed on a person, it always supposes a correlative right in some one, either in the public or the individual. When it is in the public, the remedy is usually hy indictment; hut when the duty is imposed for the benefit of the individual, then, unless some peculiar and specific remedy is given to him hy the same statute which creates the right, it seems to follow that he has the ordinary remedy hy action. Is then this duty created in such a way as to confer the correlative right upon the public or on the individual? It is manifest that it is created in such a way as to confer the right, not upon any section of the public, hut upon the individual. The public at large are not interested in extinguishing fires in the houses of individuals, hut the individual is. Therefore, it seems to me to follow, that unless some compensation is given to him for the violation of his right, he is entitled to maintain an action at common law.” And Cleasby, B., says: 1 £ Under this Act of Parliament the defendants obtain gieat powers of taking lands, appropriating streams, &c., and are also entitled to charge certain rates for the water supplied. This is the consideration for which they are satisfied to enter into the corresponding obligation imposed on them.” These citations very clearly show the grounds of that decision and the class of cases to which the doctrine of Oouch vs. Steel applies. It is hardly necessary to observe that this case is wholly outside of the reasoning of the learned Judges in that.

(Decided 9th June, 1874.)

^ On the other hand, the only case discoverable by the researches of counsel and our own, in which the very question now before us has arisen and been adjudicated, is that of Kirby vs. Boylston Market Association, 14 Gray, 249. There the accident occurred in the city of Boston, in the same way and from the same cause. The suit was against the property owner, and the same ordinance was in force, and there was the same neglect on the part of the defendant. The Court held the action would not lie against the property owner, and that the remedy for all damages sustained in this way, is exclusively against the inhabitants of the city in their corporate capacity. We have therefore the high authority of that case in support of our judgment in this.

Having thus determined the question of liability, it is wholly unnecessary to examine the rulings upon the prayers to ascertain whether there is any error in them which would warrant a reversal if the action could be sustained. No injury has resulted to the appellant from such errors if any exist.

Judgment affirmed.