Mayor of Baltimore v. O'Donnell , 53 Md. 110 ( 1880 )

Irving, J.,

delivered the opinion of the Court.

This appeal presents the single question, whether, the Mayor and City Council of Baltimore are liable, in damages, to the appellee, for 'injuries received by him, while West street, one of the streets of the corporation, was undergoing repair, by reason of the neglect of the contractor, who was doing the work, to give sufficient warning of the work being in progress. The facts are few. West street, which is admitted to be one of the streets of the City of Baltimore, was, by ordinance, directed to be repaired, re-paved and re-curbed. Joseph O. Manning, a contractor, entered into contract with the Mayor and City Council to do the work. He employed Frederic Crowley to superintend the work. The street being impassable, Crowley caused a rope to be stretched across the street to prevent travel tlieron. He directed a person to suspend a lamp from the rope as a warning. The person whom he left in charge did suspend such lamp, but it- was immediately broken and extinguished by stones thrown by some boys. The person left in charge took the lamp to his home, in the vicinity, to repair or replace it and did not replace it that night. During his absence the appellee, in attempting to pass up that street, driving his hack, came in contact with the rope, of which he had no warning, and received the injuries for which he sued the appellant. No officer of the city had notice of the rope being stretched across the street, and Crowley had no orders from the city authorities or any other person on the subject.

The appellant contends, that inasmuch as the work was being done by an independent contractor, pursuing an employment wholly independent of the city, who was free to exercise his own judgment as to the mode of conducting the work, and the assistants he was to employ, that the rule of respondeat superior does not apply, and that the contractor alone is responsible, if anyone is. In reply the appellee admits, that ordinarily as a condition precedent to holding superior amenable, the relation of master and servant must be shown to exist, and that in the case of a contractor employing others to do the work these sub-employees cannot be strictly regarded as servants of the city; but he insists that another rule applies which fixes the responsibility of the city in this case. That rule he insists is this, that where the person, for whom the work to he 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 he discharged by creating the relation between himself and another of employe and contractor. The learned Judge who decided the case below regarded the appellant as under such preexisting obligation, and so instructed the jury, and it is that ruling we are asked to review.

This is a question upon which there is some conflict of authority, and is therefore not entirely free from difficulty.

The cases of Barry vs. St. Louis, 17 Missouri, 121, and Painter vs. Mayor, 46 Pa. St., 213, cited by the appellant strongly sustain their position, hut the weight of authority is the other way, and upon full examination we think that sound reason and proper public policy do not sustain the decisions in Missouri and Pennsylvania on the subject. The case of Storrs vs. The City of Utica, (17 N. Y., 109,) is precisely analogous to this case and lays down the law, as we think, in accordance with sound principle. In that case there was a sewer to he built, and the city let out the contract of building it. In making the sewer an excavation was made in the street which was left open in the night-time, without guards, lights or warnings of the danger it created. Plaintiff drove into it and was injured. Defence was made that the contractor was liable and not the city; hut this defence was not sustained by the Court and plaintiff recovered against the city. On appeal the Supreme Court affirmed Judge Pratt’s ruling, and on further appeal to the Court of Appeals, that Court affirmed the decision. Judge Comstock, in delivering the opinion of the Court, puts the decision on the express ground that the obligation rested on the municipal corporation to keep the streets in a safe condition for travel. He says “although the work may he let out by contract, the corporation still remains charged with the care and control of the street, in which the improvement is carried on. The performance of the work necessarily renders the street unsafe for night travel. This is a result which does not all depend on the care or negligence of the laborers employed by the contractor. The danger arises from the very nature of the improvement, and if it can he averted only hy special precautions such as placing guards or lighting the street, the corporation, which has authorized the improvement is plainly hound to take those precautions. The contractor may very properly be bound by his agreement not only to construct the sewer, but also to do such other acts as are necessary to protect travel. But a municipal corporation cannot, I think, in this way either avoid indictment on behalf of the public, or its liability to individuals.” The same doctrine is maintained by the Supreme Court of the United States in City of Chicago vs. Robbins, 2 Black, 418, and in Robbins vs. Chicago City, 4 Wallace, 657. The weight, of authority is now so much in favor of this view, that Judge Dillon in his excellent work on Municipal Corporations, sections 791, 792, 793, states this to he the better doctrine. In Josiah Eyler vs. The County Commissioners of Allegany, 49 Md., 257, the Court had occasion to examine the many cases on this subject, and recognized the authorities to which we have adverted as properly defining the law. In that case the Chesapeake and Ohio Canal was shown to be under obligation to keep up a certain bridge over a public road which the canal crossed. Its obligation was undeniable, but this Court held that the County Commissioners were not thereby exempted from liability for injury resulting from the non-repair of the bridge, which formed a part of the public highway, because the primary obligation rested on them to see to it that the public highways were kept in a safe and passable condition. The opinion, in that case, so fully collates and considers -the authorities bearing on this subject, it is wholly unnecessary to extend this opinion by further citations. It is proper to say that Deford’s Case, 30 Md., 179, which has heen cited by appellants’ counsel to sustain his view, does not conflict with the principles herein announced. One of the very grounds of removal in that case was that an instruction granted excluded from the jury the consideration of the question whether or not the work being done by Deford was not in itself a nuis•ance. Besides the case in no way involved this question of primary obligation belonging to a municipal corporation. In the case under consideration the city might have provided by the contract for the exercise of due precaution by the contractor against a accident, so as to make the contractor answerable to the city, in the event of injuries sustained, but could not by the contract relieve itself from liahility. The contract actually provides for the contractor’s keeping the street in repair for two whole years after the work should be completed. If the view of the appellant, that the exclusive control of the street by the contract passed into the hands of the contractor be true, then the city’s liahility would be gone so long as tile contractor’s ■authority existed under the contract. That cannot be.

The Court properly instructed the jury, in the first prayer of the plaintiff, “ that it was the duty of the defendant to take proper precaution, by proper guards, signals, lights or other warnings, to warn persons of the impassable condition of the street, so as to prevent injuries to persons passing along said street, and.if the jury further find that the defendant, and those employed by it in repairing and re-curbing said street, did not use ordinary care in providing such precautions, and that the plaintiff in con-sequence of such neglect to provide such precautions, was thrown from his hack, while driving Avith ordinary care along said street, then the plaintiff is entitled to recover.” Eo defect in the plaintiff’s second prayer respecting the measure of damages has been pointed out, and the Court ■sees none. The defendant’s first prayer was properly rejected, because of the reasons already given to justify the-plaintiff’s first prayer. We find no error and the judgment will be affirmed.

(Decided 9th February, 1880.)

Judgment affirmed with costs.