Mayor v. Marriott, 9 Md. 160 (Md.)

Mason, J.,

delivered the opinion of this court.

This action was brought to recover 'damages for an injury sustained by the plaintiff, in consequence of the alleged negligence of the defendants, in not preventing or removing an accumulation of ice on the footway on Fayette street, Baltimore, upon which the plaintiff slipped and fell, and broke his kneecap, whereby he became lame and crippled for life.

There is no dispute about the facts. That the ice had accumulated and been suffered to remain on the side walk for a long time, to the great inconvenience and even danger of persons passing, and that the plaintiff actually fell and seriously

injured himself, there is no doubt. But the questions presented upon this record are, first, is a municipal corporation like the city of Baltimore, responsible at common law, as individuals are, for the consequences of causing or not removing nuisances ? secondly, if not, has this corporation been made so responsible by any act of our Assembly ? and thirdly, if responsible in either aspect of the case, does the evidence disclose that the plaintiff has received such special or particular damage from this nuisance which is not common to all the community, and which will entitle him to maintain the present action?

We will first proceed to consider the second general proposition, viz., the liability of the city under the statutes.

The act of 1796, chap. 68, incorporating the city of Baltimore, among other things, provides, that the corporation “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. ’ ’ It is a well settled principle that when a statute confers a power upon a corporation to be exercised for the public good, the exercise of the power is not merely discretionary but imperative, and the words “power and authority,” in such case, maybe construed duty and obligation.

Whether the obligations and liabilities which attach to the individual, in regard to nuisances, apply or not equally to corporations, at common law, it is not now necessaiy for us to determine. We are of opinion, that the effect of the provision in the statute just cited, was to place the corporation of Baltimore, in regard to their obligations to prevent and remove nuisances, upon the same footing which is held by individuals and private corporations. The people of Baltimore in accepting the privileges and advantages conferred by their charter, took them subject to the burthens and restrictions which were made to accompany them under the same charter. One of those burthens was, the obligation to keep the city free from nuisances. A disregard of the obligation thus imposed would be attended with the same consequences which would result to the individual at common law, were he to disregard his obligations to the community in this particular. As the duty is

the same in the corporation and the individual, so are the consequences the same for its disregard. The only difference is, that the common law imposes the duty upon the individual, while a statute of our State imposes it upon the corporation. To say that, under the statute, the city of Baltimore is bound to prevent nuisances, and yet to add that none of the common law consequences attach for not doing so, is to assert what would amount to a contradiction of the first proposition, and virtually affirms that the city is not bound to remove or prevent nuisances. The counsel for the defendants seems father to admit this position, that the city would be responsible if this obligation was not discharged, but seeks to establish the proposition, that the passage of the ordinances given in evidence, providing for the removal of ice and snow from the streets, operated as a full discharge of the city’s obligations, and will constitute a complete defence to all actions like the present. In order that the city should relieve itself from this obligation, it was not only necessary that it should pass ordinances sufficient to meet the exigencies of the case, but it was also bound to see that those ordinances were enforced. To pass an ordinance, and not enforce it, would be the same as if none had been passed, so far as the public interests were concerned. There is no evidence in this record of any effort on the part of the city to enforce their ordinances on this subject, but, on the contrary, it appears they were suffered to sleep as dead letters on its statute books. To have enforced them was necessary to bring the city within the saving, of having used reasonable care and diligence in removing the nuisance complained of. In the case of Pittsburgh City vs. Grier, 22 Penn. State Rep., 65, the court very justly remark, upon a case very similar to the present, that “it is no matter whether that duty (removing a nuisance) remains unperformed because she has no ordinances on the subject, or because, having ordinances, she neglects to enforce them. The responsibilities of the corporation are the same in either case.” In the same case, (page 67,) the court further say, “they ought to have performed that duty with vigilant fidelity.”

We are not prepared to say that had thé city, after it had

passed its ordinances upon this subject, and endeavored to enforce them with vigilance and energy, would not thereby have so far used ordinary care and diligence, as to have exempted them from responsibility upon an action like the present. But this does not appear to have been done, at least there was no proof of it, although the nuisance complained of had existed for a long time before the accident to the plaintiff occurred. And besides, the defendant by modifying its second prayer, which was granted by the court, could have secured all the advantage to which it was entitled upon this point. That prayer was as foEows:

Under it, evidence showing due care and diligence, might have been offered, and the court might, in addition, properly have told the jury, that a vigorous effort to enforce their ordinances on this subject, on the part of the city, would have amounted to such care and diligence, and thus have relieved them from responsibüity. Were this not so, there would be no telling how far the city might be made hable for failure to remove nuisances. Great public immorality might be regarded as a nuisance, and every wrong or injury, resulting from such a source, might be laid to the city’s account, notwithstanding every effort, through its police, had been made to suppress such immorality and vice. The same might be said of causes producing epidemics and the like.

It was also necessary that the plaintiff should, on his part, show “reasonable and ordinary care and diligence, whereby he might have avoided the injury sustained by him.” But the defendants had the full benefit of this legal principle, by having their third prayer (which embraced the proposition) granted.

The only proposition, then, advanced by the defendants, Which was denied, was that which affirmed that the mere passage of the ordinances for removing the snow and ice, <fcc., operated as a discharge of the city from responsibility; For the reasons already assigned, we think the court was right in not adopting this proposition as law*

We think, also, that the plaintiff’s prayer Was properly granted, as containing the whole law of the case upon the proof legitimately offered. That prayer was as follows:

The only questions remaining, are, was the condition of the street which led to the accident, such as to amount to a nuisance, and if so, has the plaintiff sustained such an injury, special and peculiar, as will entitle him to recover. There can be no doubt from the evidence in the case, and it seems not to be controverted by the defendants, that the condition of the street was a nuisance. It is equally clear too, that the plaintiff has sustained such an injury as will entitle him to maintain this action. Where a party sustains an inconvenience or injury which is experienced in common with all the citizens, then the source of complaint becomes a common nuisance, and the rule of law is clear, that the remedy must be by indictment. But, on the contrary, notwithstanding the party producing the nuisance may be indicted, yet if its existence has produced special and particular damages to an individual, the latter may maintain a special action against the wrongdoer. The law upon this particular point is correctly and fully stated in the case of Stetson vs. Faxon, 19 Pick. 147; and by Judge Archer, in an opinion delivered in the Baltimore county court, in the case of Barron & Craig vs. City of Baltimore, reported in the 2 American Jurist, 201, in the year 1828.

The view we have taken of this case does not conflict, in our judgment, with the decision of the Supreme court in the case of The City of Providence vs. Clapp, 17 Howard 161.

In that case the court say, “it is admitted that the defendants are not liable for the injury complained of at common law, but that the plaintiff must bring the case within the above statute to sustain the action.” We have said in this case, that the liability of the defendants is fixed by the statutes of our State, and nothing more.

The general liability of a municipal corporation, like the present, in actions of this kind, has been recognised by a number of well adjudged cases, many of which resemble the case at bar. City of Erie vs. Schwingle, 22 Penn. State Rep., 384. Pittsburgh City vs. Grier, Ibid., 54. Delmonico vs. New York City, 1 Sandf., 222. 19 Pick., 511. Henly vs. Mayor of Lyme, 5 Bing., 91, and others.