DENCE.

OF

thority to abate such nuisances, the rule would was not guilty of contributory negligence as a not apply where the obstruction was placed in matter of law because she did not see the the street by the city's contractors over which frame in the darkness, though she testified that it had control.

she could see it after she rose from the ground, (Ed. Note.-For other cases, see Municipal and also as she sat on a doorstep in front of Corporations, Cent. Dig. § 1579; Dec. Dig. & which it was. 750.*]

[Ed. Note.-For other cases, see Municipal 2. MUNICIPAL CORPORATIONS ($ 751*)—INJU- Corporations, Cent. Dig. $8 1754-1756; Dec. RIES TO THIRD PERSONS-INDEPENDENT CON- Dig. $ 821.*] TRACTORS-RELATIONSHIP. Where the agreement between a city and 8. MUNICIPAL CORPORATIONS (8 818*)

STREETS — INJURIES ADMISSION OF EVIcontractors putting in a sewer required the work to be done under the supervision of the city engineer, with whose directions the con

In an action against a city and sewer contractors were required to comply, the contrac-tractors for personal injuries by falling over a tors were not independent contractors, so as to manhole frame temporarily placed on a side

walk, an relieve the city from liability for injuries to a

ordinance applicable to municipal pedestrian by falling over a manhole frame agents requiring building material left in streets temporarily placed by the contractors on the at night to be shown by a lighted lamp was ad

missible to show defendant's duty to light the sidewalk.

obstruction. (Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $$ 1580–1582; Dec. Corporations, Cent. Dig. § 1736; Dec. Dig. $

[Ed. Note.-For other cases, see Municipal Dig. $ 751.*]

818.*] 3. TRIAL ( 253*) - INSTRUCTIONS-APPLICABILITY TO ISSUES.

9. MUNICIPAL CORPORATIONS ($ 818*) Where, in an action against a city and STREETS — INJURIES ADMISSION ÉVIsewer contractors for injuries by falling over a DENCE-CONTRIBUTORY NEGLIGENCE, manhole frame temporarily placed on a sidewalk The ordinance was also admissible to show by the contractors, the pleadings and evidence plaintiff's right, with her presumptive knowlraised the question of negligence in placing the edge thereof, to assume that the sidewalk was frame on the sidewalk as well as in not having safe, in absence of the danger signal required it lighted, a reguested prayer was properly re- by the ordinance. fused that, if the contractors had a light placed [Ed. Note.-For other cases, see Municipal on the manhole frame which was removed with Corporations, Cent. Dig. $ 1736; Dec. Dig. $ out their knowledge, they were not negligent; 818.*] such prayer ignoring the other questions of negligence.

10. DAMAGES ($ 158*) — PLEADING PROOF -(Ed. Note.-For other cases, see Trial, Cent.

SPECIFIC INJURIES. Dig. $$ 613-623; Dec, Dig. $ 253.*]

Where the declaration in an action for neg.

ligent injuries alleged that plaintiff's right leg 4. MUNICIPAL CORPORATIONS (8 809*) – STREETS-OBSTRUCTIONS.

was injured, and that her head was badly

bruised, and her system generally shocked, and It was the duty of sewer contractors to

that she sustained other permanent injuries, deposit material to be used in a reasonable place plaintiff could show injury to her hearing as on the street, and to place guards or give rea

an element of damages. sonable warning to the public of its location. [Ed. Note. For other cases, see Municipal Cent. Dig. $8 441-446; Dec. Dig. $ 158.*]

(Ed. Note.-For other cases, see Damages, Corporations, Cent. Dig. 88 1688–1694; Dec. Dig. & 809.*]

11. APPEAL AND ERROR (8 1058*)-HARMLESS 5. MUNICIPAL CORPORATIONS ($ 821*)

ERROR-EXCLUSION OF EVIDENCE. STREETS – INJURIES — NEGLIGENCE-JURY

Any error in excluding a question to plainQUESTION.

tiff on cross-examination was harmless, where In an action against a city and sewer con

the same question was repeated in another form tractors for injuries by falling over a manhole and answered without objection. frame temporarily placed by the contractors on

[Ed. Note. For other cases, see Appeal and å sidewalk, where there was evidence that the Error, Cent. Dig. $$ 4200 4206; Dec. Dig. ☆ frame was left there without reasonable neces- 1058.*] sity, it did not show, as a matter of law, that 12. MUNICIPAL CORPORATIONS ($ 818*)-DEdefendants were not negligent in placing the

FECTIVE STREETS-INJURIES-ADMISSION OF frame on the sidewalk.

EVIDENCE. (Ed. Note.-For other cases, see Municipal In an action against a city and sewer conCorporations, Cent. Dig. $8 1745–1757; Dec. tractors for personal injuries by falling over a Dig: § $21.*)

manhole frame temporarily placed on a side6. NEGLIGENCE ($ 136*)-CONTRIBUTORY NEG

walk, in which the negligence charged was in LIGENCE-JURY QUESTIONS.

placing the frame there, and the evidence showTo make plaintiff guilty of contributory ed the location of street lamps in that neighbor. negligence as a matter of law, his conduct must hood, and that they were lighted at the time of have been so reckless as to preclude a difference the accident, evidence as to whether the block of opinion as to its character in the minds of in which the accident occurred was well lightordinarily prudent men.

ed, as compared with other parts of the city, (Ed. Note.--For other cases, see Negligence,

was properly excluded as irrelevant. Cent. Dig. & 296; Dec. Dig. § 136.*]

[Ed. Note.-For other cases, see Municipal 7. MUNICIPAL CORPORATIONS ($ 821*) - IN- 818.*]

Corporations, Cent. Dig. § 1734; Dec. Dig. $ JURIES ON STREETS–CONTRIBUTORY NEGLI

13. MUNICIPAL CORPORATIONS ($ 818*)-DESince a pedestrian may assume that a

FECTIVE STREETS-INJURIES-ADMISSION OF sidewalk is safe to walk upon, plaintiff, who was EVIDENCE-NEGLIGENCE. injured by falling over an iron manhole frame In an action against a city and sewer conthree feet two inches in diameter at the bottom, tractors for personal injuries by falling over two feet at the top and nine inches high, tem- a manhole frame temporarily placed on a sideporarily placed on a sidewalk, while walking in walk by the contractors, they could show that an ordinary manner with a child in her arm, their employé had placed a lighted lamp upon

GENCE.

IDENCE.

the obstruction each night until it was removed,,thority for such purposes is vested in a poas bearing on the question of negligence.

lice department over which the municipality [Ed. Note.-For other cases, see Municipal has no control, and its own duty has been Corporations, Cent. Dig. § 1732; Dec. Dig. § 818.*]

performed and its power exhausted by the 14. TRIAL (8 62*)—EVIDENCE-REBUTTAL Ev- passage of prohibitive and punitive ordi

nances on the subject. In support of the Evidence is admissible for plaintiff to con. proposition last stated, the cases of Altvater tradict relevant evidence introduced by defend- v. Baltimore, 31 Md. 462, and Sinclair v. ant. [Fd. Note.-For other cases, see Trial, Cent. held in these cases that the city of Baltimore

Baltimore, 59 Md. 592, were cited. It was Dig. $8 148–150; Dec. Dig. 8 62.*]

was not liable to persons injured by nuiAppeal from Baltimore Court of Common

sances on the public streets caused by agenPleas; Chas. W. Heuisler, Judge.

cies other than those of the municipality, for Action by Olivia F. Clarke against Wil- the reason that under the laws then in force liam M. McCarthy and another, trading as the sole power of abating such nuisances McCarthy & Co., and others. From a judg was conferred by the law upon the board ment for plaintiff, defendants appeal. Af- of police commissioners of the city. Whether firmed.

this principle would be applicable under the Argued before BOYD, C. J., and BRISCOE, existing provisions of the city charter and PEARCE, THOMAS, PATTISON, and UR- the decisions of this court in Baltimore City NER, JJ.

v. Beck, 96 Md. 191, 53 Atl. 976, and BaltiW. H. De C. Wright, for appellants Mayor more City v. Walker, 98 Md. 637, 57 Atl. and City Council of Baltimore. Vernon Cook, 4, it is not necessary for us to determine, for appellants McCarthy & Co. J. Cookman because it is obvious that such a doctrine Boyd, for appellee.

could not be applied to a case in which the

municipality was itself instrumental in creatURNER, J. The appellee was seriously ing the occasion for the obstruction, and be. injured by stumbling and falling at night cause upon the facts now before us we are over an iron manhole frame temporarily de- of the opinion that the city must be held to posited on a sidewalk in Baltimore city, sustain such a relation to the cause of the and intended for use in connection with a accident. system of sewers then in course of construc- [2] It is not entitled to be exonerated on tion. The suit was against the municipality the ground that the particular acts alleged and McCarthy & Co., the contractors engag- to constitute negligence were done by indeed in the work under employment by the pendent contractors beyond the scope and city, and the declaration alleges negligence intent of the work committed to their charge. on the part of the defendants in placing the The plans for the work in connection with frame upon the pavement, and in permitting which the manhole frame was to be used it to remain there for a long space of time indicated a line of sewer along the east side without light or signal of any kind to warn of Broadway, a wide avenue with a central the plaintiff of its location. A judgment parkway. The point at which the frame upon verdict was recovered by the plaintiff, was deposited and the accident occurred was and the defendants have appealed. The on the west side of the avenue, and about record contains 15 bills of exception, of 75 feet south of Preston street. The sewer which 14 relate to rulings of the court below was not actually constructed through this on the admissibility of evidence, and one to block according to the location contemplated its action on the prayers. There are certain by the original plan; another course paralgeneral questions of liability involved in the lel to Broadway in this locality having been exceptions, and these will be first considered. subsequently adopted. It was testified by

Independently of the theories common to the employé who delivered the frame that it both defendants, the city claims exemption was placed on the west side of the avenue from responsibility for the accident upon because this was a more convenient point the ground that the sewer construction was on account of the pavement on the east side in charge of independent contractors, and being to some extent blocked with pipes. that the frame which injured the plaintiff The agreement between the city and the was deposited by them, without the knowl- contractors provided that the work should edge of the city officials, at a point remote be done under the general supervision of the from the line of the work, and where the city engineer, who was authorized to direct representatives of the municipality could not the order in which and the points at which have anticipated that it would be placed, it should be prosecuted. It was stipulated and that, therefore, the rule of respondeat that the contractors should immediately comsuperior does not apply.

ply with all the instructions given by the en[1] It is further insisted that the city is gineer. not liable merely on account of its omis- It appears, therefore, that the placing of sion to remove or guard the obstruction, be the frame at the point of the accident was cause, as it is asserted, the exclusive au- in connection with construction work in which the city was interested, and over was asked to instruct the jury that if they which it reserved control. In view of such found from the evidence that these defendconditions, we are unable to hold the city ants caused a light to be placed on the manerempt from liability as a matter of law hole frame in question on the evening of the upon the grounds suggested. The principles accident and prior to its occurrence, and that which govern the case before us are set- subsequently the light was stolen or removed tled by the decisions of this court in Thill- by some person unknown, and that the deman v. Baltimore City, 111 Md. 131, 73 Atl. fendants did not know of its removal, and 722, and Baltimore City V. O'Donnell, 53 that they made reasonable efforts to mainMd. 110, 36 Am. Rep. 395. In the former case tain a light on the frame on the evening of an independent contracting company, em- the accident, then they were not legally guilployed by the city to grade, pave, and curb ty of any negligence, and the verdict must a street, changed the condition of an alley be in their favor. There was evidence tendopening into the street, as a result of which ing to show that the contractors bad caused surplus water flowing in the alley, instead a lamp to be placed on the frame about half of passing off into a sewer as it had pre- past 5 o'clock on the evening of the accident. riously done, flooded the cellar of plaintiff's Their employé passed that way about a quarhouse. It was provided in the contract beter of 7 and found the lamp still lighted and tween the contractors and the municipality in position. His next visit to this point was that the work should be done under the in- at a quarter past 8, and the lamp was then spection of the city engineer. The evidence gone. The accident occurred about 7 o'clock. was held legally sufficient to show that the It was contended that this evidence was lechange in the alley was made by the con- gally sufficient to support the theory of the tracting company in connection with the prayer, and that its rejection by the court performance of its contract to pave the below constituted reversible error. If the street, and it was decided that the city, as only negligence charged in this case related well as the company, was liable for the re- to the maintenance of a light on the mansulting injury. In O'Donnell's Case an agent hole frame during the hours of darkness, we of a contractor employed by the city to re- might accept as sound and just the principle pare a street caused a rope to be suspended which the prayer under consideration invokto prevent travel on it while the work was ed. The difficulty, however, in the way of in progress. A lamp was attached to the granting such an instruction under the pleadrope as a warning, but it was immediately ings and evidence in the present record, is broken and extinguished by stones thrown by that there is a distinct issue as to whether boys. The employé in charge took the lamp in placing and keeping the frame on the to his home to repair it, but did not replace sidewalk at the point and in the position init the same night. While he was absent, the dicated by some of the witnesses the defendplaintiff, in attempting to drive his back ants were guilty of negligence. The prayer up the street, was injured by coming in con- proposed to instruct the jury that, if the tact with the rope. None of the city officials defendants were not negligent in their efforts knew that the rope had been stretched across to keep the lamp in place and lighted, they the street. The city nevertheless was held could not be found to have been negligent in to be liable. In each of the cases cited it any respect. Such an instruction could not was decided to be the duty of the city to have been granted without disregarding the have its work done in such manner as to preliminary question of negligence to which avoid injuries to the public, and that it we have referred. If the defendants did not could not be relieved of this obligation by observe due and reasonable care in the seleccommitting the work to an independent con- tion of the place and position for the deposit tractor. In the Thillman Case, as in the of the frame during the prosecution of the present, there was the additional considera- work, if, in fact, it was so located as to be tion that the city had stipulated for the needlessly dangerous to pedestrians, then the supervision and control of the work by its liability of the defendants could not justly own engineer, and it was stated as a general be said to be commensurate merely with an rule, which we find clearly applicable here, obligation to make diligent efforts to avoid that, where an employer retains control of the consequences naturally to be anticipated the work, he is not relieved of liability by from such negligence. Their responsibility reason of the fact that he is operating could not be discharged simply by the use of through the agency of a contractor. In this due care to maintain the light, if there was case the city sought to have the jury in- no reasonable necessity to have the obstrucstructed to find a verdict in its favor upon tion at all in the position in which it was the theory of nonliability which we have placed. discussed, but its prayer to that effect was [4] Their duty was to “deposit the materejected by the court below, and for the rial in a reasonable place," as well as to reasons stated we must concur in the ruling. “place guards or give reasonable precaution

[3] The proposition upon which the con- ary signals to warn the public.” Sinclair v. tractor defendants placed most reliance was Baltimore City, supra. presented in the third prayer, offered sep- The record here shows, as already stated,

arms.

pellee fell was deposited on the west side of, rejected. In the cases cited to support the the street, opposite the intended course of the theory of this prayer, the impediments to sewer. It was testified by the contractors' travel against which the public was to be materialman that the frame was delivered guarded were necessary incidents of the work at the point of the accident about October in connection with which they existed. They 18th by the supply company from which the consisted of excavations or structures imcontractors were obtaining this class of ma-mediately involved in the prosecution of the terial for the work. He stated that the work. The question of negligence in the deframe belonged on the east side of the street, posit in an unsuitable place and in an imand that nobody told the supply company to proper position on a public thoroughfare of put it on the west side. He learned on the materials designed for subsequent use at anfollowing day of the location of the frame other point was not involved. The second and placed a light on it every night from Oc- prayer of the same defendants sought to have tober 24th to the last week in November. the case withdrawn from the jury on the The manager of the sales department of the ground of contributory negligence. It was supply company testified that the frame was urged that the obstruction in question was of supposed to go on the east side of Broadway such size that the plaintiff would have noand might possibly have been placed there, ticed it if she had paid due attention to the but, as the pavement there was partially condition of the pavement on which she was blocked with sections of terra cotta pipe, it walking; and it was argued that, while she was more convenient to place it on the other had the right to assume that the sidewalk side. He described the frame as being three was safe in a general way, yet she was bound feet two inches in diameter over all at the to exercise some precaution to avoid obbottom, two feet at the top, and nine inches stacles. The testimony of the plaintiff upon high. It had a flange around the bottom this point was to the effect that, when the about six inches wide and three-eighths of an accident occurred, she was on her way home inch thick. The flange represented practi- from a walk with her two little grandchilcally the difference between the upper and dren, one of whom she was carrying in her lower diameters just mentioned. There was

She was going straight along the a cover adjustable to the top of the frame, pavement in her usual way, looking ahead and both parts were painted black. The to- and downward, but did not see the manhole tal weight was 425 pounds. There was evi- frame until she had stumbled and fallen dence adduced by the plaintiff tending to over the flange. She testified that she did show that the frame lay on the pavement not know that there was such an obstrucabout a foot inside of the curb with the tion on the pavement, that there was no flange uppermost. It was with the flange light on it, and that, while there were some that the plaintiff testified she came in con- street lamps in the square at a distance, it tact as she was passing along the sidewalk. was dark at the place she was injured. As On behalf of the defendants, there was testi- she rose from the ground after her fall, she mony to the effect that the frame was in could see the frame, and it was also visible proper position with the flange down, and as she afterwards sat on the doorstep in that it extended over the curb. It is obvious front of which it lay. She stated that, after that the two positions thus indicated repre-falling over it and having "a forcible feeling sented a material difference in the extent of of it,” she could see it from the positions just the interference liable to be caused by the mentioned, but that she did not notice it in frame to public travel on the pavement. In the first instance on account of the darkness, the latter position the flange would form no and because she had no reason to suppose part of the obstruction, and, with the frame there was any obstruction on the sidewalk. extending over the curb, there would be very in the face of this testimony the court below slight probability of its constituting any im- was clearly right in refusing to rule that the pediment whatever to the free use of the conduct of the plaintiff amounted in law to sidewalk. In the former position, however, contributory negligence. it would form an obstruction three feet wide [6] To warrant such a ruling, there would extending to a point on the pavement four have to be "some such feature of recklessfeet from the curb, and would be a serious ness as would leave no opportunity for difmenace to the safety of pedestrians.

ference of opinion as to its imprudence in [5] As there was evidence from which the the minds of ordinarily prudent men" (B. & jury might find that the defendants without 0. R. R. Co. v. State, Use of Wiley, 72 Md. reasonable necessity kept this large and 40, 18 Atl. 1108, 6 L. R. A. 706, 20 Am. St. heavy frame on a public pavement and in Rep. 454), or "some prominent and decisive the position last indicated, the court would act in regard to the effect and character of not be justified in ruling as a matter of law which no room is left for ordinary minds that such a course of conduct involved no to differ" (Baker v. Maryland Coal Co., 84 element of negligence. It is because the Md. 27, 35 Atl. 10). In Mayor, etc., of Baltithird prayer offered on behalf of the con. more v. Holmes, 39 Md. 249, where the injury tractors would have excluded this issue en- sued for resulted from the attempt of the tirely from the consideration of the jury plaintiff to lead his horses over a ridge of

no

ligence is the want of such care as men of she failed while walking at night with a ordinary prudence would use under similar child in her arms to see a dark obstruction circumstances; and the question as to wheth- nine inches high lying on the sidewalk at a er the act of the plaintiff amounted in law place where its presence was not to be susto negligence depended upon the danger (pected. A finding of contributory negligence which might reasonably be expected to re- under such circumstances could only be the sult therefrom. If the danger was so great result of conjecture. The rejection of the that no sensible man would have incurred it, prayer was proper. the plaintiff was not entitled to recover, but The city and the contractors offered praythis, of course, raised a question of fact, ers for the withdrawal of the case from the which we think was properly submitted to jury upon the theory that there was the jury."

legally sufficient evidence of negligence on [7] In the present case there is absolutely the part of the respective defendants. These nothing to indicate a want of due care upon prayers were rejected by the court below. the part of the plaintiff. She had the right The testimony was in conflict as to whether to assume that the sidewalk was safe for there was a light on the obstruction at any pedestrians, and we would not be justified in time prior to the accident and also, as aldeclaring her guilty of contributory negli- ready stated, as to whether the frame was gence merely because she did not observe in negligently placed and kept on the sidewalk; the obscurity to which she testified the low and the refusal of the proposed instructions dark object over which she stumbled.

was clearly correct. There were other prayThe only Maryland case cited by the deers offered by the defendants which the court fendants in this connection is Knight v. below declined to grant, but no reference Baltimore City, 97 Md. 654, 55 Atl. 388. In was made to them in the argument on bethat case the accident occurred in daylight, half of the defendants, and we will not disand contributory negligence was imputed to cuss them separately, but will simply state the plaintiff because by his own admission that they were all at variance with the the hole into which the wheel of his wagon principles we have discussed and applied to rad was visible at a distance of half a square, the case, and that we find no error in their and he did not see it because he was talking rejection. to a companion, and was not looking. It was The two prayers submitted by the plainstated in the opinion by Judge Pearce that tiff correctly presented the issues of fact to "greater watchfulness is required of the driv. the jury and defined the measure of damer of a team upon a city street than of a ages, and the special exception to them on pedestrian upon the sidewalk, and what the ground that they were not supported by would be negligence in law in the former legally sufficient evidence of the delivery of case might not be in the latter." The cases the frame to the defendants prior to the acfrom other jurisdictions to which our atten-cident, or of the plaintiff's due care, or of tion has been called upon the question of con- the defendants' negligence, was properly tributory degligence involved causes of injury overruled. which the evidence conclusively showed might In the first bill of exceptions the defendhave been avoided by the exercise of due ants noted their objection to the admission care. In the present case such a condition in evidence of an ordinance of the city of of proof does not exist.

Baltimore applicable by its terms to municiBy the fourth prayer offered on behalf of pal agents and employés as well as to all the contractors, the proposition was submit other persons, providing that building mated, in substance, that, if both the defendants terial left in any of the streets, lanes, or and the plaintiff were negligent and the neg- alleys of the city should during the night ligence of each contributed to the accident, “be designated by displaying a lighted lamp then the verdict must be for the defendants, or lantern at such part of the same as to even though the jury should find the negli- be easily observed by persons passing along gence of the defendants to have been greater the streets.” than that of the plaintiff. It is not neces- [8, 9] This evidence was competent, not sary to discuss this prayer further than to only as reflecting upon the duty of the desay that we do not find its theory supported fendants in the premises, but also as emby any legally sufficient evidence of the phasizing the right of the plaintiff, with plaintiff's negligence. There was evidence her presumptive knowledge of the ordinance, offered by the defendants as to the location to assume that, in the absence of such a of street lamps in the parkway of the avenue signal of danger, the street was safe for her in which the accident occurred, and as to passage. In the case of Flynn v. Canton their being lighted at the time, but there was Co., 40 Md. 312, 17 Am. Rep. 603, cited in nothing affirmative to show that there was support of this exception, there was no quessufficient light at the place at which the tion as to the admissibility of evidence, and frame was located to reveal it to a person the point of the decision was that the failexercising ordinary care. In order to grant ure of an abutting owner to comply with this instruction, it would be necessary to hold an ordinance requiring under a prescribed that the jury might infer negligence on the penalty the removal of snow from the sidepart of the plaintiff from the mere fact that walks in Baltimore city did not make him