Taylor v. Mayor of Cumberland

Bryan, J.,

delivered the opinion of the Court.

The Act of 1878, chapter 484, amended the charter of the City of Cumberland. By the fortieth section of this statute it is provided that the City Council “may pass ordinances to remove all nuisances and obstructions from the streets, lanes and alleys within the limits of the city; ” and “for the preservation of peace and good order, securing persons and property from violence, danger, or destruction.” It is shown by the record that the City Council by ordinance, section 5, of chapter 13, of theCity Code, prohibited, under the penalty of a fine, “any sport, play or exercise that might produce bodily injury, or endanger property on any street, square, or alley within the city limits.”

*72 The appellant (who was plaintiff below) was knocked down and injured while crossing a sidewalk on one of the streets of the city. The injury was inflicted by a sled, on which, a number of boys were coasting on the snow, which, at the time covered the street and the sidewalks. It was stated in the evidence that for several days previously to the occurrence the street in question and the sidewalks had been covered with snow and ice, and that crowds of men, boys and girls sometimes with sleds, to the number of fifty or sixty, congregated on the street and coasted thereon, and that many of the sleds were composed of two ordinary sleds joined together with a plank and were from fifteen to twenty feet long, and were occupied by six or eight persons and that the sleds were run down the street at a rapid and dangerous rate of speed. This sport as thus described, was a nuisance of a very serious character. It is well settled that the corporation was under an obligation to exercise for the public good the powers conferred on it by its charter to prevent nuisances, and to protect persons and property ; and that this duty is not discharged by merely passing ordinances. It is not relieved from responsibility unless there has been a vigorous effort to enforce them. Mayor, &c., of Baltimore vs. Marriott, 9 Md., 160 . It was held in this case that a municipal corporation having power by its charter to prevent and remove nuisances would be discharged from responsibity for them, if they could not be prevented or removed by ordinary and reasonable care and diligence ; and it was also held that where ordinances sufficient to meet the exigencies of the case had been passed, a vigorous effort to enforce them would amount to the requisite care and diligence. There was evidence in the present case that the acting Mayor of the city had, previously to the accident, instructed the Captain of Police to break up coasting on the streets, and that the police did make and were making vigorous efforts to bring about that result. It *73 was also in proof that at the time the appellant was injured, the sled which caused the injury was the only one then on the street.

(Decided 24th June, 1885.)

We are of opinion that the principle decided in Mayor, &c. vs. Marriott should control this case. The defendant was bound to prevent the nuisance if it could do so by ordinary and reasonable care and diligence ; but if it did use this degree of care and diligence, it discharged its duty and was relieved from responsibility ; and a vigorous effort to enforce its ordinance on the subject would fulfil its duty in this respect. The Court below- withdrew the question entirely from the jury and instructed them that there was no evidence upon which the plaintiff could recover. Assuming the plaintiff’s evidence to be true, he while using reasonable care on his part, sustained an injury from a nuisance, which the defendant was bound to prevent, if it could do so by the reasonable exercise of its corporate powers. If these facts were established to the satisfaction of the jury, the defendant was put on its defence, which, of course, it was bound to maintain by evidence. The plaintiff’s first prayer, though correct in other respects, erroneously maintained that the defendant was liable, even if the corporate authorities could not prevent the nuisance by reasonable and proper efforts. It was properly rejected, and as it was erroneous, it would have misled the jury to grant his second and third prayers. fot tike-reasons stated were improperly granted. It would have been competent to instruct the jury that the defendant was not liable for the injury to the plaintiff, if it had made a vigorous effort to enforce the ordinance, and notwithstanding such effort was unable to prevent the nuisance in question. But as this question was not submitted to the jury, the judgment must be reversed.

Judgment reversed, and neiv trial ordered.