This is a suit for personal injuries brought by Dora Miller, an infant, by her father and next friend, against the United Railways and Electric Company of Baltimore. The case was tried in the Court of Common Pleas and resulted in a verdict and judgment for the defendant, and the plaintiff has appealed.
The material facts briefly stated are, that on the 28th day of July, 1906, between the hours of eight and nine o'clock in the evening, Wolf Miller, the father of the plaintiff, was driving east on Baltimore street in company with the plaintiff and her sister. He was driving one horse attached to a buggy. The father sat on the right side of the buggy; Rebecca Miller, another daughter, sat immediately to his left and in the centre of the buggy; and the plaintiff sat on the left side of the buggy. When he approached the intersection of Baltimore and Wolfe streets the horse stopped, and in order to avoid an obstruction of some kind, Miller turned his horse to the left, and in doing so the left front wheel of the buggy dropped into a cable slot between the tracks of the railroad company. In trying to get the wheel out, the other wheel fell into the slot, and the horse fell in the street. Miller testified that the buggy had no top, and the tire of the wheel was about one inch wide; that as the wheel sank into the cable slot the buggy hung *Page 92 down on one side, and that he and Rebecca fell over on the plaintiff; that both wheels on the right side were off the ground, and were revolving in such a manner that he could not get out on that side, and that he was obliged to get out on the left side of the buggy; that the left wheels sank in the slot up to the hubs, and that it took two men about ten minutes to get them out. There was evidence tending to show that the plaintiff was seriously injured as the result of this occurrence.
The plaintiff offered in evidence Section 24 of the Baltimore City Code of 1906, which imposes upon railroad companies using the city streets the duty to keep the streets covered by their tracks, and extending two feet on the outer limits of either side of the tracks, in thorough repair, and the declaration alleges that the injury sued for was caused by the defendant's breach of this duty. There is no evidence in the record showing when, or by whom the cable was constructed, but assuming, as we must, that it was constructed under proper authority and was so constructed as not to endanger the safety of travel upon the streets, it was necessary for the plaintiff to produce evidence tending to prove that the defendant had negligently suffered or permitted it to be and remain in an unsafe condition for travel, and that this negligence caused the injury complained of. It is not pretended that any other portion of the street covered by the tracks was out of repair, or that there was a failure of duty in any other respect on the part of the defendant.
There is not the slightest evidence in the record to show that the cable slot was out of repair at the point where the accident happened, or that it was wider than the authorized width. Negligence cannot be imputed to the defendant from the mere fact that the wheels of the buggy fell into the slot, because that may have been caused by some concealed imperfection, or by some other defect of which the defendant had no actual or implied notice. In the absence of all evidence as to the actual condition of the cable slot at the place of the accident, the case made by the plaintiff is entirely consistent *Page 93 with nonliability on the part of the defendant, and fails to show a case of actionable negligence.
The provision of the City Code does not make the railway company an insurer of the safety of travellers using those portions of the public streets therein referred to. It imposed upon the company, in the respect mentioned, the same measure of duty as that devolved by law upon the municipality in the maintenance and care of the public streets. "Under statutes requiring street railway companies to keep in permanent repair that portion of the street between its tracks, and two feet outside thereof, a street railway company owes the public the duty to keep such portion of the pavement in repair, so that a person injured by its failure to do so may maintain a suit for damages against the company. The company is not, however, liable for defects or imperfections which may be caused by traffic, such for instance as rails becoming loose, or spikes projecting, except upon proof that it failed to repair such defects or imperfections after reasonable opportunity for ascertainment thereof had elapsed. The rules governing its duty toward those using the streets and the evidence necessary to sustain the charge of negligence are not the same as are applicable to it as a common carrier of passengers in relation to its duty to its passengers." Nellis Street Railroad Accident Law, p. 222.
In Sanford v. The Railway Company, 16 Pa. Sup. Court, 393; which was a suit to recover for the death of the plaintiff's horse, it appeared that the plaintiff, about half-past four in the morning, was driving his horse and wagon on a public street in the city of Philadelphia. While his horse was walking between the rails it suddenly walked into a large hole in the street, and sustained injuries which caused its death. It did not appear at the trial what caused the dangerous condition in the street; nor was it clearly shown that the hole was there previous to the accident, or that the horse was not precipitated into the ground by the unexpected cave in of the street at that point; nor whether it was the result of an inevitable accident, or caused by some default of the city, or the railway company. *Page 94 Under an ordinance of the city the defendant was bound to keep and maintain the street "in good order at all times." Upon the facts it was held that the plaintiff could not recover. The Court said "the duty of the municipality is to keep its streets in safe condition at all times, but its liability to keep its streets in safe condition at all times, but its liability to persons injured on account of the neglect or omission of this duty is always conditioned upon, first, a positive misfeasance in doing acts which caused the street to be out of repair, in which case no other notice to the corporation is essential to its liability, because the municipality has all the knowledge of the facts which a notice would give; or second, the neglect of the corporation to put the street in repair, or remove obstructions therefrom, or remedy causes of danger occasioned by wrongful acts of third parties, in which cases notice of the condition of the streets, or what is equivalent to notice, is necessary." 2 Dillon onMunic. Corp., sec. 1020. The municipality cannot by contract impose any higher, or greater liability on its licensee than the law imposes upon the municipality; and the clause in the contract providing, "that the railway company shall keep and maintain its streets in good order at all times" would not make this defendant liable in a case where the city would not be liable provided the duty created by law had been performed by the city in accordance with the requirements of law.
In Brown v. Mt. Holly, 69 Vt. 364, where a horse was injured by stepping into an unsafe place in a culvert, the Court said: "When a defect in a highway is latent, and when a sudden and unforeseen defect occurs without fault on the part of the town, the town is not chargeable for damages resulting from such defect, unless it had been in default in respect to getting seasonable knowledge of the defect, or unless, having such knowledge, it was reasonably practicable to have repaired the defect, or put up a warning, or barrier before the happening of the accident."
The rule stated in these cases has been generally adopted by the Courts in the absence of statute, and is the one which obtains in this State. *Page 95
In Keen v. Havre de Grace, 93 Md. 39, which was a suit to recover damages for an injury alleged to have been caused by defects in a side walk which the defendant was bound to keep in safe condition, we said: "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 of Troy, 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 if 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 streets, 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 Anamosa, 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."
The effect of the ordinance offered in evidence in this case was to impose upon the company that portion of the public duty which relates to keeping the parts of the streets mentioned in safe condition, and the liability of the defendant for injuries caused by its failure to discharge this duty must be determined by the same rules applicable in like cases to suits against the municipality. Tested by these principles, the evidence in this case fails to show any failure of duty by the defendant, and, therefore, the judgment will be affirmed.
Judgment affirmed with costs. *Page 96