Page images
PDF
EPUB

sioners. The occupier of the abutting property in our case, Mr. Smith, ought to be made to respond in damages because "he omits to do something which he ought to do by law," and as a consequence of such omission Mr. Brown has been caused "some substantial loss of money, health or material comfort, beyond that suffered by the rest of the public."

But the attorney, on examining the Maryland reports, finds the following cases:

As early as 1870 the Court of Appeals of Maryland decided that the Board of Police Commissioners are not made authorities of the City of Baltimore by any provision of law. Although they exercise authority within the city, for public purposes and objects, and to aid in maintaining good order therein, they have not derived their power from the corporation, nor have they been made amenable to the city for the faithful discharge of their duties. This was decided in the case of Altvater v. The Mayor and City Council of Baltimore;4 it was also decided in that case, that since the city had no control over the Police Commissioners (the board having exclusive charge of the removal of the nuisance complained of), the city was not responsible for damages due to any nuisances.

This doctrine has been affirmed in numerous cases, and as late as 1912 in the case of Taxicab Co. v. The Mayor and City Council of Baltimore.5 In this case a contractor engaged in the repairing and altering of a building left some building materials in the street of the city at night, without a right light, in violation of an ordinance of the Mayor and City Council of Baltimore, in consequence of which a taxicab of the plaintiff was greatly damaged, and it was held that the city was not liable, affirming the law as laid down in the Altvater case.

If the city is not liable, then, as there is a duty imposed by law on the Board of Police Commissioners to see that

4 31 Md. 462. s 118 Md. 359.

the streets are kept clear and free of nuisances (in our case, ice), the board ought to be made liable for any injury due to their neglect of duty in not having such nuisances removed. This was tried in 1878, in the case of Brotherton v. The Board of Police Commissioners of the City of Baltimore.0 Brotherton sued the board to recover damages for injuries sustained by him from falling on ice and snow which had been allowed to accumulate on one of the public streets in the city, and which the plaintiff alleged it was the duty of the commissioners to have removed. The Court in that case said that the Board of Police Commissioners of Baltimore City was an official body created by the State for the purpose of administering police duty in the city only, but had no existence as a body corporate, and consequently could not be sued in that capacity.

We have already seen that the Board of Police Commissioners of Baltimore City cannot be held liable because they cannot be sued as a corporation; and also that the city is not amenable to suit in such a case, because it has no control over the board, which is a State agency.

Someone certainly ought to be made liable for this injury? Why not sue the occupier of the abutting property? Is not a duty imposed upon him by law to remove the snow? Is he not subject to a fine if he fails to remove the snow? An action to recover damages for injury due to his neglect of duty ought certainly to lie against the occupier of the abutting property.

In 1874 the Court of Appeals of Maryland had before it the following facts in the case of Flynn v. The Canton Company of Baltimore.7 Evelyn Flynn, while walking with ordinary care, slipped and fell upon some ice covering the pavement of a public street in the City of Baltimore, in front of the premises occupied by The Canton Company,

e 49 Md. 495. case of McCarthy v. Clark, 115 Md.

- 40 Md. 312 (this decision was fol- 454). lowed and upheld in 1911, in the

which resulted in a broken arm. Snow having been allowed to accumulate on the pavement, was melted by the sun, and the water thus formed was frozen the night before the accident. Miss Flynn could not see the ice, because of the slight covering of snow which had fallen during the night before the accident. Suit was brought to recover damages for the injuries sustained in consequence of the fall.

The action was grounded on the neglect of The Canton Company to comply with an ordinance of the Mayor and City Council of Baltimore, which made it the duty of owners of property to clear away snow and ice from the pavements and sidewalks contiguous to their premises under penalty of two dollars for every neglect, beside the expense of clearing the same away; and it was alleged that it was the duty of the police commissioners to have the snow and ice removed from the pavements fronting the houses of those persons who should neglect to remove the same, at the expense of the city in the first place, to be afterwards recovered from the person or persons so neglecting to remove the snow and ice.

Judge Miller, in rendering the decision of the Court of Appeals, said:

"Here the nuisance, If such it be, 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 the 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 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."

"But the question here is what is its scope and effect? (of the act). 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 property 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 traveled. It is not like the case where an individual is bound by a private act under which he 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 the opinion that 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 cost of removal in every instance of his refusal or neglect . By enforcing these, every object the ordinance was intended to accomplish will be attained. The liability of the parties upon whom it operates extends no further, and against them an action like this cannot be maintained."

I know of no one else who could possibly be held responsible for this injury except those already mentioned, viz.: the occupier of the abutting property; the Board of Police Commissioners, and the City of Baltimore. Our Court of Appeals has determined, it seems to me, to free everyone from responsibility who might by any possibility be held liable for this injury.

Perhaps Maryland jurisprudence is not the only system lacking in a method to fix the penalty of such an injury beyond that of the payment of a small fine, and which does not allow a recovery for the actual injury sustained against the occupier of the abutting property. This condition of the law has existed and was known to the Legislatures since 1840, and no act has been passed which in any way seeks to remedy this loophole in the law.

I. Wm, Schimmel.

Baltimore. Mn.

THE LAWYER ON THE FRONTIER.

The frontier is no more. Retreating timidly before the vanguard of civilization, shrinking each year to narrower and narrower confines, the frontier finally disappeared, absorbed as it was from all sides at once. Today—yes, in fact, for thirty years—the frontier has ceased to exist. All of which makes just so much more interesting the institutions of the frontier, and none more interesting than "The Lawyer on the Frontier."

The title, "The Lawyer on the Frontier," has been objected to as a misnomer, because the lawyer appears only after the frontier stage has been passed through and the more intensive civilization has rooted itself into a region. Seeing that the lawyer does not enter the frontier with the surveyor, the hunter, the trapper, or the half-hunter halffarmer type, but only after all of these have been pushed out by the fixed and stationary agricultural settlers, it would be more proper to call this discussion "The Lawyer on His Frontier," for it is the lawyer's frontier that is to be treated. Beginning with the missionary and the trapper, and ending with the farmer and the manufacturer, one type more complex than the last pushed out the other. With the coming of the farmer, hunting became unprofitable; so the hunter pushed out still farther on the frontier. This movement has been going on from the settlement of this country in 1607 until in the eighties of the past century, when the frontier areas advancing from the Pacific and Atlantic Coasts met in the Rocky Mountains. Today, the frontier, as far as the United States is concerned, is a thing of the past, though there are a few isolated spots which to all purposes are still in the frontier stage.

It is elemental that wherever people come in contact with one another, there is need of law and order, the number of

« PreviousContinue »