exceeding five years, or by a fine not exceeding five thousand dollars, or by both."

tended as a substitute for it, although it contains no express words to that effect must on principles of law as well as in reason and common sense, operate to repeal the former." This doctrine and rule of construction is approved and applied by this court in Montell v. Consolidated Coal Co., 39 Md. 164, State v. Falkenham, 73 Md. 463, 21 Atl. 370, Leitch v. Leitch, 114 Md. 336, 79 Atl. 600, and cases there cited, U. S. v. Claflin et al., 97 U. S. 546, 24 L. Ed. 1082; State v. Popp, 45 Md. 437. We rest our conclusion, however, in this case upon the application of the rule of repeal by implication and upon the principles of implied repeal, as that rule is applied and understood, and as herein announced.

While it is conceded that neither of the last-named statutes (1910) contain an express saving clause or an exception of pending or existing offenses from its operation, it is earnestly urged by the state that because there was no reference made in either act to section 194 of article 27, the penal section, there was no intention on the part of the Legislature to repeal it by the substituted legislation, and the previous law must be continued in full force and effect. The manifest effect of this contention, if sustained, would be to continue in force two absolutely different punishments for the same offense, and in this regard it will be seen there is a palpable conflict, and an irreconcilable re- [3] We hold, then, that there is a manifest pugnancy between the two provisions of the inconsistency and a plain repugnancy belaw relating to the penalty to be imposed. tween section 52 of the act of 1910, and secThe punishment provided by article 27, § 194, tion 194 of article 27 of the Code, and that for the offense here alleged, in the case of an the two sections cannot stand together and individual, is a fine of not less than $100 nor be executed at one and the same time; that more than $5,000 and imprisonment in the article 14, § 10, of the Code, has been expenitentiary for a period of not less than one pressly repealed, and that article 27, § 194, year, nor more than three years in the dis- has been repealed by implication, leaving in cretion of the court. By section 52 of the force the subject-matter and penalties fixed act of 1910, above quoted, the penalty pro- by the acts of 1910, for the violation of those vided for each offense is imprisonment not respective statutes. Dundalk Ry. Co. v. exceeding five years or by a fine not exceed- Smith, 97 Md. 181, 54 Atl. 628. It will be ing $5,000, or by both. The correct rule of borne in mind we are here dealing with a construction in such cases is well settled by penal statute, and, as was said by the Suthe decisions of this court, and by the Su- preme Court of Massachusetts, in Ellis v. preme Courts of other jurisdictions. The Paige, 1 Pick. 45, "to hold otherwise would general rule of implied repeal, where there is be to impute to the Legislature gross careno express repeal in terms, is stated in Statelessness or ignorance, which is altogether inv. Yewell, 63 Md. 121, to be when there are admissible." State v. Long, 94 Md. 637, 51 two acts on the same subject the rule is to Atl. 827. give effect to both, if possible.

[1] But, if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first. The test, whether repugnancy or conflict exists, is, Can the two laws stand together, and

be executed at one and the same time? Da

vis v. State, 7 Md. 151, 61 Am. Dec. 331; United States v. Tynen, 11 Wall. 92, 20 L. Ed. 153. In Gorman v. Hammond, 28 Ga. 85, the Supreme Court of Georgia held, in speaking of laws imposing penalties, when two statutes impose a penalty for the same offense and the punishment imposed by one is not that imposed by the other, the latter statute repeals the earlier, for the intention to inflict two punishments for the same offense is not to be imputed to the Legislature.

[2] There is another rule of statutory construction, supported by authority, which we think could be invoked in aid of this class of legislation, and it is thus stated by the Supreme Court of Massachusetts in Bartlett v. King, 12 Mass. 545, 7 Am. Dec. 99: "A subsequent statute revising the whole subjectmatter of a former one and evidently in

It was also contended that the indictment was defective in substance, and for that reason the demurrer to the indictment was properly sustained. As we have determined that the judgment must be affirmed for the reasons already stated, it becomes unnecessary to pass upon this question.

We think the demurrer in this case was properly sustained, and, as it is well settled that after the repeal of a law no penalty can be enforced nor punishment imposed for its violation when in force, without a saving clause in the repealing statute, the indictment must fall. Keller v. State, 12 Md. 322, 71 Am. Dec. 596; Beard v. State, 74 Md 322, 71 Am. Dec. 596; Beard v. State, 74 Md. 134, 21 Atl. 700.

Judgment affirmed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Action-by Olivia F. Clarke against William M. McCarthy and another, trading as McCarthy & Co., and others. From a judgment for plaintiff, defendants appeal. Af-of police commissioners of the city. Whether firmed.

[1] It is further insisted that the city is not liable merely on account of its omis- It appears, therefore, that the placing of sion to remove or guard the obstruction, be- the frame at the point of the accident was cause, as it is asserted, the exclusive au- in connection with in connection with construction work in

Md.)

MCCARTHY v. CLARKE

15

which the city was interested, and over was asked to instruct the jury that if they which it reserved control. In view of such found from the evidence that these defendconditions, we are unable to hold the city ants caused a light to be placed on the manexempt from liability as a matter of law hole frame in question on the evening of the upon the grounds suggested. The principles accident and prior to its occurrence, and that which govern the case before us are set- subsequently the light was stolen or removed tled by the decisions of this court in Thill- by some person unknown, and that the deman v. Baltimore City, 111 Md. 131, 73 Atl. fendants did not know of its removal, and 722, and Baltimore City v. O'Donnell, 53 that they made reasonable efforts to mainMd. 110, 36 Am. Rep. 395. In the former case tain a light on the frame on the evening of an independent contracting company, em- the accident, then they were not legally guilployed by the city to grade, pave, and curb ty of any negligence, and the verdict must a street, changed the condition of an alley be in their favor. There was evidence tendopening into the street, as a result of which ing to show that the contractors had caused surplus water flowing in the alley, instead a lamp to be placed on the frame about half of passing off into a sewer as it had pre- past 5 o'clock on the evening of the accident. viously done, flooded the cellar of plaintiff's Their employé passed that way about a quarhouse. It was provided in the contract be- ter of 7 and found the lamp still lighted and tween the contractors and the municipality in position. His next visit to this point was that the work should be done under the in- at a quarter past 8, and the lamp was then spection of the city engineer. The evidence gone. The accident occurred about 7 o'clock. was held legally sufficient to show that the It was contended that this evidence was le: change in the alley was made by the con- gally sufficient to support the theory of the tracting company in connection with the prayer, and that its rejection by the court performance of its contract to pave the below constituted reversible error. If the street, and it was decided that the city, as only negligence charged in this case related well as the company, was liable for the re- to the maintenance of a light on the mansulting injury. In O'Donnell's Case an agent hole frame during the hours of darkness, we of a contractor employed by the city to re- might accept as sound and just the principle pave a street caused a rope to be suspended which the prayer under consideration invokto prevent travel on it while the work was ed. The difficulty, however, in the way of in progress. A lamp was attached to the granting such an instruction under the pleadrope as a warning, but it was immediately ings and evidence in the present record, is broken and extinguished by stones thrown by that there is a distinct issue as to whether boys. The employé in charge took the lamp in placing and keeping the frame on the to his home to repair it, but did not replace sidewalk at the point and in the position init the same night. While he was absent, the dicated by some of the witnesses the defendplaintiff, in attempting to drive his hack ants were guilty of negligence. The prayer up the street, was injured by coming in con- proposed to instruct the jury that, if the tact with the rope. None of the city officials defendants were not negligent in their efforts knew that the rope had been stretched across to keep the lamp in place and lighted, they the street. The city nevertheless was held could not be found to have been negligent in to be liable. In each of the cases cited it any respect. Such an instruction could not was decided to be the duty of the city to have been granted without disregarding the have its work done in such manner as to preliminary question of negligence to which avoid injuries to the public, and that it we have referred. If the defendants did not could not be relieved of this obligation by observe due and reasonable care in the seleccommitting the work to an independent con- tion of the place and position for the deposit tractor. In the Thillman Case, as in the of the frame during the prosecution of the present, there was the additional considera- work, if, in fact, it was so located as to be tion that the city had stipulated for the needlessly dangerous to pedestrians, then the supervision and control of the work by its liability of the defendants could not justly own engineer, and it was stated as a general be said to be commensurate merely with an rule, which we find clearly applicable here, obligation to make diligent efforts to avoid that, where an employer retains control of the consequences naturally to be anticipated the work, he is not relieved of liability by from such negligence. Their responsibility reason of the fact that he is operating could not be discharged simply by the use of through the agency of a contractor. In this due care to maintain the light, if there was case the city sought to have the jury in- no reasonable necessity to have the obstrucstructed to find a verdict in its favor upon tion at all in the position in which it was the theory of nonliability which we have placed. discussed, but its prayer to that effect was rejected by the court below, and for the reasons stated we must concur in the ruling. [3] The proposition upon which the contractor defendants placed most reliance was presented in the third prayer, offered separately on their behalf, in which the court

[4] Their duty was to "deposit the material in a reasonable place," as well as to "place guards or give reasonable precautionary signals to warn the public." Sinclair v. Baltimore City, supra.

The record here shows, as already stated, that the manhole frame over which the ap

rejected. In the cases cited to support the theory of this prayer, the impediments to travel against which the public was to be guarded were necessary incidents of the work in connection with which they existed. They consisted of excavations or structures immediately involved in the prosecution of the work. The question of negligence in the deposit in an unsuitable place and in an improper position on a public thoroughfare of materials designed for subsequent use at another point was not involved. The second prayer of the same defendants sought to have the case withdrawn from the jury on the ground of contributory negligence. It was urged that the obstruction in question was of such size that the plaintiff would have noticed it if she had paid due attention to the condition of the pavement on which she was walking; and it was argued that, while she had the right to assume that the sidewalk was safe in a general way, yet she was bound to exercise some precaution to avoid obstacles. The testimony of the plaintiff upon this point was to the effect that, when the accident occurred, she was on her way home from a walk with her two little grandchildren, one of whom she was carrying in her arms. She was going straight along the pavement in her usual way, looking ahead and downward, but did not see the manhole frame until she had stumbled and fallen over the flange. She testified that she did not know that there was such an obstruction on the pavement, that there was no light on it, and that, while there were some street lamps in the square at a distance, it was dark at the place she was injured. As she rose from the ground after her fall, she could see the frame, and it was also visible as she afterwards sat on the doorstep in front of which it lay. She stated that, after falling over it and having "a forcible feeling of it," she could see it from the positions just mentioned, but that she did not notice it in the first instance on account of the darkness, and because she had no reason to suppose there was any obstruction on the sidewalk. In the face of this testimony the court below was clearly right in refusing to rule that the conduct of the plaintiff amounted in law to contributory negligence.

pellee fell was deposited on the west side of the street, opposite the intended course of the It was testified by the contractors' materialman that the frame was delivered at the point of the accident about October 18th by the supply company from which the contractors were obtaining this class of material for the work. He stated that the work. He stated that the frame belonged on the east side of the street, and that nobody told the supply company to put it on the west side. He learned on the following day of the location of the frame and placed a light on it every night from October 24th to the last week in November. The manager of the sales department of the supply company testified that the frame was supposed to go on the east side of Broadway and might possibly have been placed there, but, as the pavement there was partially blocked with sections of terra cotta pipe, it was more convenient to place it on the other side. He described the frame as being three feet two, inches in diameter over all at the bottom, two feet at the top, and nine inches high. It had a flange around the bottom about six inches wide and three-eighths of an inch thick. The flange represented practically the difference between the upper and lower diameters just mentioned. There was a cover adjustable to the top of the frame, and both parts were painted black. The total weight was 425 pounds. There was evidence adduced by the plaintiff tending to show that the frame lay on the pavement about a foot inside of the curb with the flange uppermost. It was with the flange that the plaintiff testified she came in contact as she was passing along the sidewalk. On behalf of the defendants, there was testimony to the effect that the frame was in proper position with the flange down, and that it extended over the curb. It is obvious that the two positions thus indicated represented a material difference in the extent of the interference liable to be caused by the frame to public travel on the pavement. In the latter position the flange would form no part of the obstruction, and, with the frame extending over the curb, there would be very slight probability of its constituting any impediment whatever to the free use of the sidewalk. In the former position, however, it would form an obstruction three feet wide [6] To warrant such a ruling, there would extending to a point on the pavement four have to be "some such feature of recklessfeet from the curb, and would be a seriousness as would leave no opportunity for dif menace to the safety of pedestrians.

[5] As there was evidence from which the jury might find that the defendants without reasonable necessity kept this large and heavy frame on a public pavement and in the position last indicated, the court would not be justified in ruling as a matter of law that such a course of conduct involved no element of negligence. It is because the third prayer offered on behalf of the contractors would have excluded this issue entirely from the consideration of the jury

ference of opinion as to its imprudence in the minds of ordinarily prudent men" (B. & O. R. R. Co. v. State, Use of Wiley, 72 Md. 40, 18 Atl. 1108, 6 L. R. A. 706, 20 Am. St. Rep. 454), or "some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ" (Baker v. Maryland Coal Co., 84 Md. 27, 35 Atl. 10). In Mayor, etc., of Baltimore v. Holmes, 39 Md. 249, where the injury sued for resulted from the attempt of the plaintiff to lead his horses over a ridge of