
    The Mayor and City Council of Baltimore vs. Thomas Holmes.
    
      Negligence — Contributory Negligence in Law — Liability of a Municipal Corporation for injury resulting from obstruction of a Street. , ^ . ,v.
    
    Negligence .¡sthe wanfof such1 care as men of ordinary prudence would use .under .similar circumstances'; and the question as to whether the act of a party amounts in law to negligence, depends- upon the danger which might ! ‘reasonably be expected to result therefrom.
    In-July, 1812, the- Gity of -Baltimore, - through its Water Department, was engaged in laying water mains-along'a portion of the west side of Charles, Street, the whole work,- -including excavating and repaving, .being done in five days. The plaintiff was employed to haiil material from a house on the. west side .of Charles St., above S’aratOga St'., and, coming to the house on the 4th of July for.a load,-found-a ridge of stones, occasioned by the work referred .to, along the west side of the street in front of and beyond the house. ,A-t this time he made no- attempt to cross over' the stones, but, stop-. ping his -horse on- the east 'side of -the Street, carried the materials, with the assistance of persons working in the 'house', to the cart. , On the 8th of July, the street being obstructed as before,- he made his first load in the same manner, but on his return -for a second load, not finding any one to help him, and. the materials being heavy, he attempted to lead his horse over the stones. While so doing, the horse stumbled, and in failing struck the plaintiff on, the,.leg and broke it. The- horse’was sound and steady, and the plaintiff was- leading him 'carefully. The plaintiff having brought suit agajnst the city for damages, the defendant 'offered evidence that the plaintiff had been cautioned by the • owner of the materials to be careful in crossing the ridge, because he-thought it was dangerous; and, that the work which caused the obstruction had been carefully and promptly done by experienced and competent workmen. - At the trial the Court submitted the question of negligence, both on the part of the plaintiff and defendant, to the jury; verdict and judgment being for the plaintiff, on appeal by the defendant, it was Hisld :
    
      That this instruction was proper, the act of the plaintiff not being contributory
    negligence in law.
    Appeal from the Court of Common Pleas.
    The case is stated in the opinion of the Court.
    
      Exception. — The plaintiff offered three prayers, the first of which is stated in the opinion of the Court, the others are as follows:
    2. If the jury further find that the Water Department of the City of Baltimore, by its employes, although often requested to make an opening for the passage of the plaintiff in the ridge of stone, as often persistently refused ; and further find that there was no other or proper way by which the plaintiff could reach the premises for the purposes of his business, then the jury may take into consideration the refusal of said authorities in estimating their quantum of damages.
    8. If the jury find the facts as set forth in the first prayer, and also that the plaintiff was a laboring man, and has been permanently injured for life by the negligence of the employes of the city, under the direction of its Water Board, then they may take that fact into consideration in estimating the damages to the plaintiff.
    The defendant offered five prayers, the second and fourth of which are to be found in the opinion of the Court, the others are as follows :
    1. If the jury find from the evidence, that the injury complained of, happened as testified to, from obstructions placed in the bed of Charles street, which impeded the free use of the street, then the plaintiff is not entitled to recover.
    3. If the jury find from the evidence that no notice was given to defendant (before the injury testified to) of the existence of the alleged obstruction in Charles street, then the plaintiff is not entitled to recover, and a request from the witness Rollinson, (who owned the materials which were being hauled away) to the laborers of the Water Department that they would leave an opening in front of his house, was not notice of the existence of such obstruction to defendant.
    5. That if they find from the evidence that the Water Department of'Baltimore City, on or about July 8th, 1872, found it necessary, in connection with the duty of supplying the citizens with water, to lay a water main at and along the point on Charles street where the alleged injury to plaintiff happened, and that such work was done in a proper manner, with reasonable care and diligence, and that a ridge of stones was necessary to be along the opening that had been made, and that the plaintiff, in hauling to and from the house in question, which was on the west side of said ridge, had several times stopped his wagon on the east side of said ridge, and loaded and unloaded it from that position, because, as stated by him, he was “shy of crossing the stones,” and on the day, at about 11 o’clock, A. M., when the injury happened attempted to lead his horse across the stones, so that he might get his load made quickly, and was warned at. the time by his employer (the owner of the house) to be very careful in crossing the stones, because of the danger, and that in attempting so to cross, the horse stumbled and struck plaintiff, and thus broke his leg, then the plaintiff is not entitled to recover.
    The Court, (G-arey, J.,) granted the first and third prayers of the plaintiff, and rejected his second, and granted the second and fourth of the defendant, and refused the others. The defendant excepted to the action of the Court in granting the first and third prayers of the plaintiff’, and in rejecting its first, third and fifth prayers. The jury rendered a verdict in favor of the plaintiff for $1000, and judgment was,entered accordingly. ' The defendant appealed.
    The caiise. was argued before Bartol, C. J., Stewart, Miller, Alvey and Robinson, J.
    
      Albert Ritchie and f. Nevptt.Steele, for the appellant.
    In support of its first prayer, the appellant, cited Altvater, et ux. vs. Mayor, &c. of Baltimore, 31 Md., 462.
    The .appellant, wag. entitled-to- notice of’the' 'alleged obstructions. , The Court,ought to-have'granted appellant’s fifth prayer, and .taken.the-case from the'jur'y.
    If the verdict .in this case, be right, the 'city caá ¿ever-open its streets for the great purposes of supplying1 wafer or gas, .without liability .-to damages,- no matter vvhat' may be its care and precautions;- . • • ■ .......•' '
    In this case,,the facts from which the appellee's Contributing negligence appears,-are-neither controverted nor numerous, por., complicated, nor. is the1 legal 'rule or standard a,t. al,l uncertain .or varying/ They áre sirnpl'e and undisputed, ,and .the..question-'of negligence ' was' therefore a question,of law. Balt. & Ohio R. R. vs. Shipley, 31 Md., 370; Balt. City Passenger R. W. Co. vs. Wilkinson, 30 Md., 224; Balt. & Ohio R. R. vs. Fitzpatrick, 35 Md., 46; Balt. & Ohio R. R. vs. State; use of Dougherty,. 36 Md., 366; Biles vs. Holmes, 11 Ire., 16; Heathcock vs. Pennington, 11 Ire., 640; Foot vs. Wiswall, 14 John., 303; Dascomb vs. B. & St. L. R. R., 27 Barb., 221; Purvis vs. Coleman, 1 Bosw., 321; Fogg vs. Nahant, 106 Mass., 278, S. C., 98 Mass. 578; Westchester R. R. vs. McElwee, 67 Pa. St., 311.
    
      W. J. Waterman, for ;tl),e appellee..
    The.charter of the city, Act of 1796, ch. 68, grants inter alia the power to remove'and prevent nuisances, and this power imposes-and means an-obligation-sd todo. 
      Mayor, &c. vs. Marriott, 9 Md., 160. An obstruction of a highway is a- public nuisance. 7 Bacon’s Abr., Title “Nuisance,” 226.
    Blacksfone- classes among public 'nuisances, “annoyance,s in ¡highways, &c: rendering' them' dangerous, or, inconvenient to passj” .“either 'positively 'from actual obstruction,. or negatively by'w&nt of repairs.” 4 Bl, Corn.,, 167. , It’ is .therefore1'the duty of the city'to keep its streets úna. goodior; at least passable cohdition, so as to be used .in their’entire .dimensions. ’ And/;though it may bre.ak them ¡up'to lay pipes, it must forthwith replace them úndheir ¡Original condition; Balt. City Code, secs. 17, 18, p. 965.
    In .a great thoroughfare like Charles' street, twenty-four hours .obstruction would’ be’ gfoSs négligénce and a public nuisance., The obstruction ’ beóotries a public nuisapce, a, moment after it c’ould possibly'bé removed^ and tpe longer it .continues, the more'ággra'vát'ed'it' becomes, and .any, private injury, or special ‘daimag'es resulting therefrom, may’ be -the' basis' of Civil shit, unless the. City has, no control over,’. 6i* power to ábhte the nuisance.' Harrison vs. Sterett, 4 H. & McH., 540; M. & C. C. vs.. Marriott, 9 Md., 160; Atvater, &c. vs. M. & C. C., 31 Md., 462; Houck vs. Wachter, 34 Md., 265.
    
    The, city .was. therefore’’ responsible iu'darhages' for its negligence, , unless iplaintiff-contributed ' by his negligence. 4 H. & McH., 540; 9 Md., 160; 34 Md., 265. And even. then,, if, the - negligence or cateless'Uess of the defendant was the proximate'cause of the disaster, which care on its,part would .have’avoided. B. & O. R. R. vs. Dougherty, 36, Md., 366
    In Wilkinson’s Case, 30 Md., 224, plaintiff was in open violation ,of a' wholesome regulation of the company, which -v^as negligence in law.. Holmes was violating'no law The citizens have the right to the use of the'whole of the streets, for the purposes to which they are dedicated, and it was no violation to occupy any part of them for sucli purposes. Holmes being compelled to cross the ridge, used every precaution. There was at least no negligence in law; whether there was any in fact, was properly left to the jury. 36 Md., 366.
   Robinson, J.,

delivered the opinion of the Court.

This suit was brought to recover damages for injuries sustained by the plaintiff in attempting to lead his horse attached to a cart, over a pile or ridge of stones, which the declaration alleged, the defendant had negligently suffered to obstruct one of the public streets in t,he city of Baltimore.

The defendant through its Water Department, was laying water mains along the west side of Charles, between Mulberry and Saratoga streets, the whole work including repaving, being performed within five days.

The plaintiff was hauling materials from the old Albert Mansion” on Charles street, north of Saratoga, and on coming to the house on the 4th of July for a load, he found a pile or ridge of stones, along the west side of the street, extending in front and about fifty yards, beyond the house. No attempt was made by the plaintiff at this time to cross over the stones, but stopping his horse on the east side of the street, he carried with the assistance of persons working in the house, the materials, to the cart. On the 8th of July, finding , the street still obstructed by .the pile of stones, he loaded his cart in the same manner, but when he returned for a second load, not finding any one to help him, and the materials being, heavy, he attempted to lead the horse over the stones and in so d.oing, the horse stumbled, and in falling.struck the plaintiff on the leg and broke it. Th,e horse vsras sound and steady and the plaintiff was carefully leading, himn over. ■

Evidence was offered by the defendant to prove that the whole work in laying the mains occupied about five days and that it was carefully and promptly done, the men employed being experienced and competent workmen. The plaintiff' was cautioned to be careful in crossing the ridge of stones, because the witness thought it was dangerous.

Upon these facts the Court instructed the jury :

1st. That if the defendant “pulled up the pavement and allowed the same negligently to remain for a considerable length of time, by reason of which the plaintiff' in the course of his employment and duty, and without any negligence or fault on his part, had his leg broken, then the plaintiff was entitled to recover.”

2nd. That if' the defendant found it necessary to lay water mains on Charles street, along and at the point where the plaintiff was injured, and the whole work was done by the employes in a proper manner, and with reasonable care and diligence, the plaintiff was not entitled to recover.

3rd. That if the plaintiff did not use reasonable care and diligence, and the injury complained of could have been avoided had he done so, then he was not entitled to recover.

The question of negligence both on the part of' the plaintiff and defendant, was fairly put to the jury. The defendant contends, however, that the attempt on the part of the plaintiff' to lead his horse over the pile or ridge of stones, was, such a glaring act of carelessness as to amount in laxo to contributory negligence, and that the Court erred in refusing so to instruct the jury. Negligence is the want of such care as men of ordinary prudence would use under similar circumstances; and the question as to whether tire act of the plaintiff amounted in law to negligence, depended upon the danger which might reasonably be expected to result therefrom. If the danger was so great that no sensible man would have incurred it, the plaintiff was not entitled to recover, but this' dfcourse ijaise.d a, question of. .fact, which ; we think" was ‘properly, submitted ,to-, the jury.-' This '-case' is 'not unlike Clayards vs. Dethick & Davis, 64 Eng. Com. Law, 439,‘where the 9pmmissiqneys..of Sewers:dug1 a trench in1 the only outlet from a mesys,. leaving a niarrow'-pasdage', on which they heaped gubjñsh,. and 'a <cabman■ in' exercise of his calling, p/ttempted.-tD lead-his -horse ovér the jubbis^anb, the jiqrse f'elLand-was- -kilted.' :It was1 held^that the plaintiff w,as ,not- disentitled - to 'recover,1 because he had at .some hazard, created by the; defendant1, brought h'is ^horse, out qf tpe stable, and-that'it wad pro1perly!'lef't tó thé jury whether ,he' had persisted contrary1 to express'vyarning, as .po yhich, there -was'Contradictory evidence^ in' running Uppn an -obvious-danger. - i • " " "

(Decided 16th January, 1874.)

Patterson^ J., said “ The whole- question-was-whether the danger was so obvipius, that, the plaintiff - could not,1, with common prudence -make' the attempt. That was - ■ i -i i , A , , properly put to thpjuryi ; ■ ; ( - 1 ‘

Lord Denman,. C.,J,

“I .h-ave- no--doubt-that'I left'it to the jury to say. whether .the ¡.plaintiff had- used ord-i-1 nary cárei for I always leave- cases of the kind in that • . ■ manner. . >v . ,-,- . . . 1 ¡ ■ -v -. ■■ ; .- • i - ■

In this case, we.thin^ the. Court ,was -right - in submitting the question ¡of, negligence, both on -the-part of .the-plaintiff and defendant, to fjhe-jury^. and the judgment below will therefore be affirmed. < . ,

Judgment affirmed.  