Mayor of Baltimore v. Locke
Mayor of Baltimore v. Locke
Opinion of the Court
delivered the opinion of the Court.
The plaintiff below, appellee here, recovered judgments of $39,000 against the City and one Matthews for personal injuries sustained in an automobile collision. The City appeals, challenging the sufficiency of the evidence of its primary negligence, the refusal of its prayer on the point of contributory negligence, and the admission of certain evidence as to its actions subsequent to the accident.
Locke testified that he had his headlights on. He saw the barricade, which was illuminated by the headlights of Matthews’ car. In fact, he testified that he knew it was there and had himself pulled around it when returning from work the day before, although there was other testimony that the barricade had not been in place at that time. When he was 80 feet from the barricade,' he saw Matthews’ car pull out around it. He kept straight ahead, but applied his brakes, leaving skid marks 28 feet in length. After the collision, both cars were in about the center of the eastbound lanes, the rear wheels of Locke’s car being in the lane nearest to the center line. It appears from a photograph in evidence that after the
It was shown that the Bureau of Water Supply of Baltimore City had made an opening in the bed of Holabird Avenue on November 3, 1955, to repair a leak in the water main located about 15 feet below the surface. It was about 6 feet in length across the center of the westbound lanes and about 9 feet wide. On November 5, the repair was completed and the hole “backfilled”. On November 7, the cut was “cold patched” in accordance with standard practice, and the lanes opened to traffic. Permanent repairing cannot be done until the soil has been compacted by use, but inspections of the patch were made three times a day on November 8, 9 and 10, and the patch showed no signs of depression or wear. It was 5 inches thick and laid over crushed stone.
Officer Heidel, of the Baltimore Police Department, testified that he went on night duty at 12:01 A. M. in a police car. His post included the area in question, and it was part of his duty to look out for road conditions that might be hazardous. At 12:30 A. M. he observed that the cold patch in the bed of Holabird Avenue had settled to a depth of about 8 inches, making a hole about a foot square in the center of the westbound lanes, tapering off toward the north curb, and creating what he thought was a traffic hazard. (The witness, Kecken, testified the hole was 2 feet deep when he saw it after the accident.) Officer Heidel went to a point nearby, where a new street was being laid, and obtained a stringer 10 feet long and a cross-buck painted yellow, with danger signals on it, and a lighted red lantern. With this material, he erected a barricade on the east side of the hole, placing the cross-buck about 5 feet north of the center lines, fitting the stringer into it extending to the north, and hang
The case against the City rests upon its alleged negligence in failing to keep its streets in a reasonably safe condition for public travel. That such a duty exists is well settled, although the City is not an insurer. See E. Coast Lines v. M. & C. C. of Balto., 190 Md. 256, where many cases are analyzed, and State, Use Parr v. Prince George’s County, 207 Md. 91. Where traffic hazards exist, particularly where they are of the City’s own creation, there is a further duty to take reasonable steps to provide warning of the hazardous condition. E. Coast Lines v. M. & C. C. of Balto., supra (unlighted raised grass plot); Baltimore v. Thompson, 171 Md. 460 (unlighted girder on bridge); Baltimore v. State, Use Cirtout, 146 Md. 440 (no light or other warning at end of paved portion of street) ; Baltimore v. O’Donnell, 53 Md. 110 (no light or other warning except a rope). See also Rea Construction Co. v. Robey, 204 Md. 94 (no flares or other warning to mark end of paving on highway under construction), and Biggs v. M. & C. C. of Balto., 129 Md. 686 (no light or other warning at dock end of street). In all of the cases cited, however, there was a complete absence of any warning. In Baltimore v. O’Donnell, supra, a lantern had been hung on a rope to give warning, but it had heen broken by boys. The person in charge discovered this on the afternoon before the accident, and took the lantern home instead of replacing it with another.
If we assume, without deciding, that the City might be held liable if the police officer had acted negligently in providing inadequate warnings, on the theory that it approved and adopted the precautions he took, we cannot find that the warnings were inadequate. The barricade marked the hole and the lantern illuminated the barrier. , We cannot find that it was inadequate for the purpose intended. The hazard guarded against was the danger that an automobile might suffer damage from striking an unmarked depression in the roadbed, and the means employed was to indicate the presence of the hole so that motorists might avoid the hole. It was certainly adequate for this purpose, and there is no evidence that anyone struck the hole or the barricade. The westbound lane was not entirely closed, for at least 5 feet next to the center line was left open. It was hardly foreseeable that the erection of the barricade would itself create a danger that a collision might occur in the 25 feet of roadway left open. The collision clearly was the result of negligence on the part of a driver pulling around it without slowing down and without regard to oncoming traffic. It might well have been avoided if Matthews had pulled to his right after pass
We think the City cannot be held liable for failure to provide a warning light, if the lantern was extinguished and smashed by a third person after 4 A. M., without notice to it. In 19 McQuillen, Municipal Corporations (3rd Ed.), Sec. 54.100, it is said: “* * * but the municipality is not liable where proper warnings, such as barriers or lights or the like, have been put out but are removed by a third person or by accident before the injury, and the municipality has no actual notice ’of the removal, and such a time has not elapsed thereafter as. to charge the municipality with notice thereof and afford opportunity to replace them. Having performed its duty, in the first instance, the municipality is ordinarily not required to keep a man on guard to see that the barriers or lights are not removed; * * See also Primus v. City of Hot Springs, 256 P. 2d 1065 (N. M.); McFeeters v. City of New York, 92 N. Y. S. 79; Gedroice v. City of New York, 95 N. Y. S. 645; Pyburn v. Kansas City, 148 S. W. 193 (Mo. App.). Cf. Charles v. Baltimore, 138 Md. 523.
We conclude that the precautions taken were reasonably adequate to meet the situation and that the City’s motion for judgment n. o. v. should have been granted. Our conclusion on the point of primary negligence makes it unnecessary to discuss the other points argued.
Judgment reversed, costs to be paid by the appellee.
Reference
- Full Case Name
- MAYOR AND CITY COUNCIL OF BALTIMORE v. LOCKE
- Status
- Published