The Court instructed the jury at the close of the plaintiff's testimony that there was no evidence legally sufficient to establish negligence on part of the defendant, and the correctness of this instruction constitutes the only subject of consideration in this case.
The suit was brought to recover damages for injuries alleged to have resulted from the negligence of the defendant. The evidence shows that the plaintiff was walking along the sidewalk of Union avenue in the city of Havre de Grace, an incorporated town, on a dark night, and while so doing fell into a hole and was injured. The immediate cause of his fall, the plaintiff claims, was the hole in the sidewalk into which he stepped, whereby he lost his balance and fell down an embankment. The law applicable to a case of this kind is clear. It *Page 39 is not questioned that the city of Havre de Grace has power to grade and repair its streets and sidewalks (Act 1890, ch. 180); and when such is the case, the municipality is bound to maintain them in safe condition, and if it negligently fail so to do and thereby persons, acting without negligence on their part, are injured, it is liable to respond in damages for all injuries caused by its neglect. M. C.C. of Balt. v. Marriott,9 Md. 160; Pendleton's case, 15 Md. 17. Before, however, the municipality can be made liable in any case, it must be shown that it had actual or constructive notice of the bad condition of the street. As was well said in the case of Todd v. City ofTroy, 61 N.Y. 509: "By constructive notice is meant such notice as the law imputes from the circumstances of the case. It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see they are kept in a reasonably safe condition for public travel. They cannot fold their arms and shut their eyes and say they have no notice. After a street has been out of repair, so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality through its agents charged with that duty, to learn of its existence and repair it, the law imputes to it notice and charges it with negligence." If the defect be of such a character as not to be readily observable, express notice to the municipality must be shown. Burns v.Bradford City, 137 Pa. St. 367; Cook v. The City ofAnamosa, 66 Iowa 430. But if it be one which the proper officers either had knowledge of, or by the exercise of reasonable care and diligence might have had knowledge of, in time to have remedied it, so as to prevent the injury complained of, then the municipality is liable. Stanton v. Salem,145 Mass. 479; Geschwend v. Mellvale Borough, 159 Pa. St. 257;City of Atlanta v. Purdue, 53 Ga. 607.
If therefore the evidence in this case shows that there was a defect in the sidewalk, of which the city had knowledge, or by the exercise of reasonable diligence ought to have known, and the plaintiff, while exercising proper care, stepped into the hole and was thereby injured, the municipality would be liable *Page 40 for such damages as ensued. Further, that if there is any evidence from which the jury can reasonably so find, the prayer we are now considering should not have been granted. The prayer is to the effect that there is no evidence in the case to establish negligence on the part of the defendant. Now negligence is usually a question of fact for the jury; (Lewis v. B. O.R. Co., 38 Md. 588); and it is only where the "facts are undisputed or where only one reasonable inference can be drawn from them," that the question is one of law for the Court. B. O.R.R. Co. v. Good, 75 Md. 537. Moreover a case should not be withdrawn from the jury, if there be some reasonable evidence of the existence of facts requisite to fix liability upon the defendant. B. O.R. Co. v. State, 71 Md. 599.
In view of this statement of the law, it follows that if there had gone to the jury evidence from which the jury could reasonably find that there was a dangerous hole in the sidewalk, of which the defendant had or ought to have had knowledge, and that such hole was the proximate cause of the accident, the prayer should not have been granted. Without discussing the evidence on these points, it is sufficient to state that divers witnesses testify to the existence and character of the hole. Mrs. Suter said she had seen it there for three weeks before the accident; George Carroll that it had been there, "maybe a couple of weeks or so," and John Suter, "two or three weeks." There is further proof that the hole was in the bed of the sidewalk, and not hidden or obscured by anything from the full view of any one who passed along that part of the walk. There was also evidence that the plaintiff passing there on a dark night, without knowledge of the defect, stepped into the hole and "was thrown backward," and fell into the gutter, and thereby was injured. If the jury believed this testimony, they would unquestionably be justified in finding that the municipality was negligent, in not repairing the defect, if it, or its proper officers or agents, knew of its existence; and if they did not have knowledge of its existence then they did not exercise that active vigilance which was incumbent on them, to *Page 41 see that the sidewalk was kept in a reasonably safe condition for public travel.
As this is the only question presented by the record it follows that the judgment must be reversed and the cause remanded.
Judgment reversed with costs to the appellant and new trialordered.
(Decided February 21st, 1901.)