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exceeding five years, or by a fine not exceeding five thousand dollars, or by both.” 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 repugnancy between the two provisions of the law relating to the penalty to be imposed. The punishment provided by article 27, § 194, for the offense here alleged, in the case of an individual, is a fine of not less than $100 nor more than $5,000 and imprisonment in the penitentiary for a period of not less than one year, nor more than three years in the discretion of the court. By Section 52 Of the act of 1910, above quoted, the penalty provided for each offense is imprisonment not exceeding five years or by a fine not exceeding $5,000, or by both. The correct rule of construction in such cases is well settled by tlle decisions of this court, and by the Supreme Courts of other jurisdictions. The general rule of implied repeal, where there is no express repeal in terms, IS Stated in State V. Yewell, 63 Md. 121, to be When there are tWO acts on the Same Subject the rule is to 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? Davis 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 inmposing 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

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. [3] We hold, then, that there is a manifest inconsistency and a plain repugnancy between section 52 of the act of 1910, and section 194 of article 27 of the Code, and that the two sections cannot stand together and be executed at One and the Same time; that article 14, § 10, of the Code, has been expressly repealed, and that article 27, § 194, has been repealed by implication, leaving in force the Subject-matter and penalties fixed by the acts of 1910, for the violation of those respective statutes. Dundalk Ry. Co. v. Smith, 97 Md. 181, 54 Atl. 628. It will be borne in mind We are here dealing With a penal statute, and, as was said by the Supreme Court of Massachusetts, in Ellis V. IPaige, 1 Pick. 45, “to hold otherwise Would be to impute to the Legislature gross carelessness or ignorance, which is altogether inadmissible.” State V. Long, 94 Md. 637, 51 Atl. 827. 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. Reller V. State, 12 Md. 322, 71 Am. Dec. 596; Beard V. State, 74 Md. 134, 21 Atl. 700. Judgment affirmed.

(115 Md. 454) McCARTHY et al. V. CLARKE.

(Court of Appeals of Maryland. April 5, 1911.) 1. MUNICIPAL CoRPoRATIONs ($ 750*)—ToRTs – DEFECTIVE SIDEWALKS - LIABILITY OF

CITY. - - Though a city might not be liable for in: juries, by obstructions on a sidewalk, placed there by other than the city's agencies because the board of police commissioners had sole auMd.). MCCARTHY

thority to abate such nuisances, the rule would not apply where the obstruction was placed in the street by the city’s contractors over which it had control. [Ed. Note.—For other cases, see Municipal #" Cent. Dig. § 1579; Dec. Dig. §

2. MUNICIPAL CORPORATIONS (§ 751*)—INJURIES TO THIRD PERSONS—INDEPENDENT CONTRACTORS–RELATIONSHIP. Where the agreement between a city and contractors putting in a sewer required the work to be done under the supervision of the city engineer, with whose directions the contractors were required to comply, the contractors were not independent contractors, so as to relieve the city from liability for injuries to a pedestrian by falling over a manhole frame temporarily placed by the contractors on the sidewalk. [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1580–1582; Dec. Dig. § 751.*] 3. TRIAL (§ 253*) – INSTRUCTIONS-APPLICABILITY TO ISSUES. Where, in an action against a city and sewer contractors for injuries by falling over a "manhole frame temporarily placed on a sidewalk by the contractors, the pleadings, and evidence raised the question of negligence in placing the frame on the sidewalk as well as in not having it lighted, a requested prayer was properly refused that, if the contractors had a light placed On the manhole frame which was removed without their knowledge, they were not negligent; Such prayer ignoring the other questions of negligence. [Ed. Note-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]

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

the obstruction each night until it was removed,

as bearing on the question of negligence. [Ed. Note.—For other cases., see Municipal

#". Cent. Dig. $ 1732; Dec. Dig. §

14. TRIAL ($ 62*)—EVIDENCE—REBUTTAL EVIDENCE. Evidence is admissible for plaintiff to contradict relevant evidence introduced by defendant. [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 148–150; Dec. Dig. § 62.*] Appeal from Baltimore Court of Common Pleas; Chas. W. Heuisler, Judge. Action - by Olivia F. Clarke against William M. McCarthy and another, trading as McCarthy & Co., and others. From a judgment for plaintiff, defendants appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, J.J.

W. H. De C. Wright, for appellants Mayor and City Council of Baltimore. Vernon Cook, for appellants McCarthy & Co. J. Cookman Boyd, for appellee.

URNER, J. The appellee was seriously injured by stumbling and falling at night over an iron manhole frame temporarily deposited on a Sidewalk in Baltimore city, and intended for use in connection With a system of sewers then in course of construction. The suit was against the municipality and McCarthy & Co., the contractors engaged in the work under employment by the city, and the declaration alleges negligence On the part of the defendants in placing the frame upon the pavement, and in permitting it to remain there for a long space of time without light or signal of any kind to Warn the plaintiff of its location. A judgment upon verdict was recovered by the plaintiff, and the defendants have appealed. The record Contains 15 bills of exception, of Which 14 relate to rulings of the Court below on the admissibility of evidence, and one to its action on the prayers. There are Certain general questions of liability involved in the exceptions, and these will be first considered.

Independently of the theories common to both defendants, the city claims exemption from responsibility for the accident upon the ground that the sewer construction was in-charge of independent contractors, and that the frame which injured the plaintiff was deposited by them, without the knowledge of the city officials, at a point remote from the line of the work, and where the representatives of the municipality could not have anticipated that it would be placed, and that, therefore, the rule of respondeat Superior does not apply.

[1] It is further insisted that the city is not liable merely on account of its omission to remove or guard the obstruction, because, as it is asserted, the exclusive au

thority for such purposes is vested in a police department over which the municipality has no control, and its OWn duty has been performed and its power exhausted by the passage of prohibitive and punitive Ordinances on the Subject. In support of the proposition last stated, the cases of Altvater v. Baltimore, 31 Md. 462, and Sinclair v. Baltimore, 59 Md. 592, were cited. It was held in these cases that the city of Baltimore was not liable to persons injured by nuisances on the public streets caused by agencies other than those of the municipality, for the reason that under the laws then in force the sole power of abating such nuisances was conferred by the law upon the board of police commissioners of the city. Whether this principle would be applicable under the existing provisions of the city charter and the decisions of this court in Baltimore City v. Beck, 96 Md. 191, 53 Atl. 976, and Baltimore City v. Walker, 98 Md. 637, 57 Atl. 4, it is not necessary for us to determine, because it is obvious that such a doctrine could not be applied to a case in which the municipality was itself instrumental in creating the Occasion for the obstruction, and beCauSe upon the facts now before us we are of the opinion that the city must be held to Sustain Such a relation to the CauSe Of the accident. [2] It is not entitled to be exonerated on the ground that the particular acts alleged to constitute negligence were done by independent contractors beyond the scope and intent of the work committed to their charge. The plans for the work in connection with Which the manhole frame was to be used indicated a line of sewer along the east side of Broadway, a wifle avenue with a central parkway. The point at which the frame was deposited and the accident occurred was On the West Side of the avenue, and about 75 feet South of Preston street. The sewer was not actually constructed through this block according to the location contemplated by the original plan; another course parallel to Broadway in this locality having been subsequently adopted. It was testified by the employé Who delivered the frame that it WaS placed on the West side of the avenue because this was a more convenient point On account Of the pavement On the east Side being to some extent blocked with pipes. The agreement between the city and the contractors provided that the work should be done under the general Supervision of the city engineer, who was authorized to direct the order in which and the points at which it should be prosecuted. It was stipulated that the contractors should immediately comply with all the instructions given by the engineer. It appears, therefore, that the placing of the frame at the point of the accident was in connection With COnStruction WOrk in

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which the city was interested, and over which it reserved control. In View Of Such conditions, we are unable to hold the city exempt from liability as a matter of law upon the grounds suggested. The principles which govern the case before us are settled by the decisions of this court in Thillman v. Baltimore City, 111 Md. 131, 73 Atl. 722, and Baltimore City v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395. In the former case an independent COntracting COmpany, employed by the city to grade, pave, and curb a street, changed the condition of an alley Opening into the Street, as a result of Which surplus water flowing in the alley, instead of passing off into a sewer as it had previously done, flooded the cellar of plaintiff's house. It Was provided in the COntract between the contractors and the municipality that the Work should be done under the inspection of the city engineer. The evidence was held legally sufficient to show that the change in the alley was made by the Contracting company in connection with the performance of its contract to pave the street, and it was decided that the city, as well as the company, was liable for the re. Sulting injury. In O’Donnell’S CaSe an agent of a contractor employed by the city to repave a street caused a rope to be suspended to prevent travel On it While the Work WaS in progress. A lamp was attached to the rope as a Warning, but it was immediately broken and extinguished by stones thrown by boys. The employé in charge took the lamp to his home to repair it, but did not replace it the same night. While he was absent, the plaintiff, in attempting to drive his hack up the street, was injured by coming in Contact with the rope. None of the city officials knew that the rope had been Stretched acroSS the street. The city nevertheless was held to be liable. In each of the cases cited it was decided to be the duty of the city to have itS WOrk done in Such manner as to avoid injuries to the public, and that it could not be relieved of this obligation by COmmitting the WOrk to an independent Contractor. In the Thillman Case, as in the

present, there was the additional considera

tion that the City had Stipulated for the supervision and control of the work by its own engineer, and it was stated as a general rule, which We find clearly applicable here, that, Where an employer retainS COntrol Of the work, he is not relieved of liability by reason of the fact that he is operating through the agency of a Contractor. In this case the city sought to have the jury instructed to find a verdict in its favor upon the theory of nonliability which we have 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

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Was asked to instruct the jury that if they found from the evidence that these defendants caused a light to be placed on the manhole frame in question on the evening of the accident and prior to its occurrence, and that subsequently the light was stolen or removed by some person unknown, and that the defendants did not know of its removal, and that they made reasonable efforts to maintain a light on the frame on the evening of the accident, then they were not legally guilty of any negligence, and the Verdict must be in their favor. There was evidence tending to show that the contractors had caused a lamp to be placed on the frame about half past 5 o'clock on the evening of the accident. Their employé passed that way about a quarter of 7 and found the lamp Still lighted and in position. His next visit to this point was at a quarter past 8, and the lamp was then gone. The accident occurred about 7 o'clock. It was contended that this evidence Was le: gally sufficient to support the theory of the prayer, and that its rejection by the Court below constituted reversible error. If the only negligence charged in this case related to the maintenance of a light on the manhole frame during the hours of darkneSS, We might accept as sound and just the principle which the prayer under consideration invoked. The difficulty, however, in the way of granting such an instruction under the pleadings and evidence in the present record, is that there is a distinct issue aS to Whether in placing and keeping the frame On the sidewalk at the point and in the position indicated by Some of the witnesses the defendants were guilty of negligence. The prayer proposed to instruct the jury that, if the defendants were not negligent in their efforts to keep the lamp in place and lighted, they could not be found to have been negligent in any respect. Such an instruction could not have been granted without disregarding the preliminary question of negligence to Which we have referred. If the defendants did not observe due and reasonable care in the Selection of the place and position for the deposit of the frame during the prosecution of the work, if, in fact, it was so located as to be needlessly dangerous to pedestrians, then the liability of the defendants could not justly be said to be COmmenSurate merely With an Obligation to make diligent efforts to avoid the Consequences naturally to be anticipated from such negligence. . Their responsibility could not be discharged simply by the use of due care to maintain the light, if there was no reasonable necessity to have the obstruction at all in the position in which it was placed. [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 appellee fell was deposited on the west side of the street, opposite the intended course of the sewer. 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 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 eWidence 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 extending to a point on the pavement four feet from the curb, and would be a serious 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

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 down Ward, 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. [6] To warrant such a ruling, there would have to be “Some such feature of recklessness as would leave no opportunity for difference 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

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