Mayor of Baltimore v. Pendleton

delivered the opinion of this court.

The question involved in this case is res adjudicata in this 'State. The action was brought to recover damages for an injury done to a horse, occasioned by the digging of atrench, or hole, in Garden street-, ih'th'e city of Baltimore, into which 'the horse of the 'plaintiffs fell, and Was thereby so crippled as to 'become Worthless-. There is no dispute as to the facts. The trench was dug opposite to a house on the street by the owner thereof, for the purpose of inserting his private pipe into the main pipe belonging to the city and running along the centre of the street, with the view of drawing water from thence and conducting it to his own premises. The trench in question w-as filled up -with earth, and the paving stones placed upon it, but in such manner that by reason of the snow and wet, the ground was so soft that the "horse, while in a cart hauling a load of cüal-, sanie .into it and there sustained the injury. There was no evidence going to show, or from which the jury oould infer; any want of caution or care on the part of .the driver -at the time of the accident, but, on the contrary., the evidence went to prove that the appearance of the place, where -the trehch had been, was such, as to conceal the danger of any attempt to pass across it.

By the agréenient of the parties; the Acts of Assembly applicable -to the city of Baltimore; and the -ordnances of the latter, are to be taken as part of the record in this case. Under' these, the city has full authority to remove nuisances from its streets. The arrangement by Which lateral pipes are inserted into the main pipe in the centre of the street, is as follows: the officers of the corporation, for an established charge paid -to it; bore a hole in the main pipe and the rest of the work is done by the person into whose premises the water is to be conducted; .the necessary excavation, filling up -and paving being also done by the oWner of the property. ■But these responsibilities imposed upon the property owner *17do not relieve the corporation from the obligation, under its charter, to keep the public highways within its limits free from nuisance and in a condition to be safely travelled. In the present case the performance of their duty was wholly neglected for nearly a month, and, as a consequence of such neglect, the accident happened, and the liability of the city, in the absence of fault .on the part of the plaintiffs, all ached and became complete. In the case of The Mayor & C. C. of Balto. vs. Marriott, 9 Md. Rep., 174, in commenting on the clause in the charter of the city of Baltimore, which provides that the corporation “shall have full power and authority to enact and pass all laws and ordinances necessary to preserve {he health of the-city, and to prevent nuisances,” the court declare it to be -“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, may be construed duty and obliga:tion. ’ ’ And in accordance with this doctrine, which was sustained both by reason and authority in that case, the corporation was held liable for an injury occasioned by a person falling on the ice which was allowed to accumulate on the pavement. The same principle applies to the case ndwbeforeus, and we think the court, in the instruction which it gave to the jury, correctly-stated the law, and required of them to find every fact essential to the'plaintiffs’ right of recovery. The law having been. properly laid before the jury, the appellants cannot successfully complain of the action of the court in regard to any of the other propositions submitted to it. The Mutual Safety Insurance Co. vs. Cohen, 3 Gill, 459.

Judgment affirmed.