ed in 1906, and the absence of a guard roll as the plaintiff was, to consider the situaat the back of the machine.

Sargent, Remick & Niles and Edmund S. Cook, for plaintiff. Doyle & Lucier, for de

fendants.

YOUNG, J. 1. The plaintiff says that the condition of the floor behind the sizing machine and the want of a guard roll was the cause of his injury. The test to determine whether it can be held that the defendants were in fault for this condition of their premises is to inquire whether it was a normal one, and if it was not, and they did and he did not appreciate the danger incident to going behind the machine because of it, whether they did what the ordinary man would have done to notify him of the danger. They concede it can be found that the condition of their premises was abnormal, and that they did and he did not appreciate the risk incident thereto; but they deny that they can be found to be in fault in respect to notifying him of the danger. All they did for that purpose was to tell him, when they set him at work on the machine, not to go behind it when it was running; so the real question on this branch of the case is whether it can be said from the fact that they told him not to go behind the machine that he ought to have known the floor was wet and uneven, and that there was no guard roll at the back of the machine. If it can be said that he ought to have known from that fact that if his hand got caught in the machine it would be crushed, it cannot be said that he ought to have known the floor was in such condition that he would probably get

his hand between the rolls if he went behind the machine. In short, although the plaintiff knew what would happen if his hand was caught between the rolls, it cannot be said that he knew of the condition of the floor which made it probable that his hand would be caught. Consequently it can be found that the defendants were in fault; for it is the master's duty to notify his servants of all the dangers of the service peculiar to the way he maintains so much of his premises as are intended for their use of which he does, and they do not, know.

tion, as it existed just before the accident, from the plaintiff's point of view. He knew that if he was caught between the rolls he

would be crushed, and that he had been told not to go behind the machine when it was running. It must be held, therefore, that be knew there was danger of his being crushed if he went there. But he did not know why it was dangerous to go there. For all he knew, the only risk in going behind the machine was that incident to his accidentally doing something which would bring him in contact with the rolls. He did not know that the floor back of the machine was in such a condition that he would be likely to come in contact with the rolls if he did not use great care. He may well have thought the risk was very slight, since he had frequently seen the man who worked with him go behind the machine to smooth out cloth they were sizing. It cannot be said, therefore, that the plaintiff was guilty of contributory negligence; for the test to determine that question is to inquire whether the risk he supposed he was running was so great that all fair-minded men will agree that the ordinary man would not have encountered it.

Goodale v. York, 74 N. H. 454, 69 Atl. 525; 29 Cyc. 518, 519; 7 Am. & Eng. Enc. Law, 392, 393; 37 Cent. Dig. tit. "Negligence," §

86.

3. The plaintiff was not permitted to use the evidence in respect to the removal of the floor in 1906 to prove the defendants' fault. All the use he was allowed to make of it was to show that the witnesses who testified

as to the condition of the floor at that time had an opportunity to know about the matter as to which they testified. It is conceded that the condition of the floor at that time is relevant to the issue of its condition at the time the plaintiff was injured. Since this is so, the exception to its admission raises no question of law. Curtice v. Dixon, 74 N. H. 386, 68 Atl. 587.

4. One of the issues was whether the condition of the defendants' premises of which the plaintiff complained was normal. It is obvious that evidence that the guard roll on the back of the machine was not in use at the time of the accident was relevant to that 2. Was the plaintiff guilty of contributory issue. Therefore, if it is true, as the defendnegligence? Whether or not the ordinary ants contend, that this evidence produced man will pursue a particular course of ac- the verdict, that fact alone does not furnish tion depends to a great extent on his knowl-cause for a reversal. Lambert v. Hamlin, 73 edge of the situation and of the risks he will run if he pursues it. If he thinks the danger is slight, he may pursue a given course, although he would not think of so doing if he appreciated the risk incident thereto. It is necessary, therefore, in order to determine what the ordinary man would have done if he had been sent behind the machine

N. H. 138, 59 Atl. 941. To justify such a proceeding, it should appear that the plaintiff made an improper use of the evidence, and that the verdict resulted therefrom. Exceptions overruled.

PEASLEE, J., did not sit. The others concurred.

GOTTLIEB-KNABE & CO. OF BALTI- of Baltimore own a lot of ground on Fayette MORE CITY et al. v. MACKLIN et al. (Court of Appeals of Maryland. Jan. 13, 1909.) 1. MUNICIPAL CORPORATIONS (§ 722*)-LEASE

Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, WORTHING-acter are being sought by other organizations, TON, and HENRY, JJ.

ner and for the purposes which they have been, and are, doing?

1. By section 1, art. 4, Pub. Loc. Laws (City Code) the mayor and city council are expressly authorized to purchase and hold real, personal, and mixed property, and “dispose of same for the benefit of the city as hereinafter provided." By section 13 of the same article it is declared: "Nothing contained in this article shall prevent the may. or and city council of Baltimore from disposing of any building or parcel of land no longer needed for public use; provided that such disposition shall be approved of by the finance commissioners by their uniting in the conveyance thereof, and shall be made at public sale and be provided for by ordinance; nor from the renting for fixed and limited terms of any of its property not needed for public purposes, on approval of the commissioners of finance." Under this section absolute disposal must be provided for by ordinance, and must be at public sale, and the finance commissioners must unite in the conveyance as the evidence of their approval. There is no limitation upon the power of renting for fixed and limited terms, except the approval of the finance commissioners, the mode of approval not being specified. The lease to the field officers in this case, however, recites the fact that it was

vote said armory, when so rented to them, exclusively to concerts, entertainments, etc., for the private profit of said organizations. The bill further charges that such use of said armory is an unauthorized and unlawful use of the property of the taxpayers, and endangers the said property, and the equipment and personal property of the state, for which said building is provided, as a storehouse; that such rentals for such private purposes deprive the plaintiffs and others owning like property of opportunity to rent their buildings for similar purposes, and of deriving from them income which would otherwise be assured, and if allowed will deprive the plaintiffs of profitable customers of long standing -one of which, the Harmonie Singing Society, is now advertising numerous entertainments to be held in said armory; that it is impossible for plaintiffs, and others in like situation, to enter into competition with said defendants, they being exempt from all taxes and cost of maintenance, while plaintiffs are not only subjected to these charges upon their properties, but are compelled, as taxpayers, to bear their proportion of what is devoted to the maintenance of said armory; that protest against this alleged injustice has been made to the Governor of the state by whom said protest was referred to the adjutant general of the state, who has replied that he is without power to act in the premises. The prayer | madę in pursuance of Ordinance No. 155 of of the bill is for an injunction restraining the defendants, their agents, and officers, and their successors in office, from letting or renting the said armory, or any part thereof, for the use of meetings, concerts, exhibitions, or entertainments to any person or persons, or ganization or organizations, other than the officers or organizations of the Militia of the State of Maryland, and for such other and further relief as their case may require. A preliminary injunction was issued, and both defendants demurred to the bill on the ground that no case was stated therein entitling efther plaintiff to relief in equity, and on the hearing, the demurrer was sustained, the injunction was dissolved, and the bill of complaint dismissed. This case has been argued by all the counsel with much ability, and by the distinguished counsel for the appellants with unusual fullness and earnestness. If the matter could be reduced to a question of public policy properly determinable by this court, our conclusion might perhaps be different, though we are not to be understood as so stating. The inquiry, however, is one of power, and it is not claimed that the renting | complained of can be restrained unless the act is ultra vires.

After a careful examination and consideration of the briefs in the case, we think the questions necessary for determination may be reduced to two: (1) Had the city the right to rent this building as it did? (2) If it had such right, what is there, if anything, in the character of the field officers, as lessees, to

the mayor and city council, approved May 12, 1893, so that it appears to have been made in accord with the strictest construction of section 13 of article 4.

In Davidson v. Mayor and City Council, 96 Md. 509, 53 Atl. 1121, under an ordinance of the mayor and city council of Baltimore, a lot was acquired and a building erected thereon for the use of English-German School No. 1, and it was so used for a number of years, when the board of school commissioners of the city determined to use it for a colored high school, which change of use certain taxpayers of the city sought to restrain by injunction. In refusing the injunction on appeal this court, referring to section 1 of the city charter, supra, said: “By the first and second sections of that instrument all the property of the city is vested in them, with full power of disposition of it in the manner and terms therein provided. Under the lease the mayor and city council became the owner of the premises, and by reason thereof had full power to designate from time to time the uses to which it could be put. The terms of the charter, and the acts of assembly, if there were any, determine what should be the measure of their power and duty. * It could not have been intended that for all time the premises could be used only for the uses of that school. If it could be available for no other use than that specifically mentioned, it could well happen that after the location had ceased to be available for the specified

# *

tion to designate any other employment of; we have said are abundant to sustain this the premises, the property would remain idle | lease, we cite the following: In French v. and worthless, and become a mere incum- Quincy, 3 Allen (Mass.) 9, the town erected brance on the city." This case is cited to show the broad and emphatic language used in considering the power of the city to determine the uses to which its property of that description can be put, though the case did not involve the precise question here presented of property no longer needed for public uses. But, as we shall see later, there are abundant authorities from other courts of high repute sustaining the lease to the field officers in this case.

We have not overlooked, though we cannot agree with, the ingenious argument of the appellants by which they seek to take this case out of the operation of section 13 of the charter. They contend that "letting" for entertainments for one or more evenings, however definitely ascertained, is not a "renting for a fixed and limited term." We think that it is apparent that the meaning and purpose of the requirement that the renting allowed should be for a fixed and limited term-and with the approval of the finance commissioners-was that no such indefinite or renewable contracts should be made as would interfere with the probability of an early absolute disposal of unused property of the city, no argument being required to show that when real property or buildings belonging to the city are no longer available for its public uses, the financial interests of the city demand that the cost of maintenance be gotten rid of as promptly as possible by absolute sale; and we are of opinion that the term "renting" as here used embraces the power to let or hire the use for a single evening, or any number of evenings, whether consecutive or not. A liberal construction of such a charter power is required to enable the city, in the interest of its general taxpayers, to minimize the loss of revenue upon its unused property.

a town hall on a lot held under a deed conveying the title for that specific use, with condition for reverter to the grantor or his heirs on breach of condition as to use. The building was so constructed as to contain in the first story a bank, a clothing store, and a lockup, and in the second story a hall for town meetings, also used as a theater and for entertainments and dances. Upon a writ of re-entry it was held that the town, having authority to construct the building, and not having occasion to use parts of it for the time being, is not obliged to keep them unoccupied, but may derive a revenue from them by renting them, notwithstanding this interfered with the business of the plaintiff's tavern. In Bates v. Bassett, 60 Vt. 531, 15 Atl. 200, 1 L. R. A. 166, the town owned an old hall, not needed or used for any town purposes. Being dilapidated, it was repaired at a cost of $2,500, and the apartments rented for various purposes. The court said: "The town had no right, as a primary purpose, to erect a building to rent, but if, in the erection of a hall for its proper municipal purposes, it conceives that it will lighten its burdens to rent part of its building, whereby an income is gained, no sound reason is suggested why it may not do so." In Stone v. Oconomowoc, 71 Wis. 155, 36 N. W. 829, plaintiff, who was a large taxpayer, and owned a hall in the city used for lectures, theatrical performances, dances, etc., sought to restrain the city from leasing its auditorium for the same purposes. The charter gave the city power to purchase and hold for use of the city any estate, real or personal, and to sell, lease, and convey the same, and to control and manage any other property of the city. The relief was refused, the court holding the injury to the plaintiff to be too remote and consequential to be Again the appellants contend that this the basis of an action, and hence damnum building is not "property not needed for absque injuria. In Bell v. Platteville, 71 public use," as those words are used in sec- Wis. 139, 36 N. W. 831, where a similar tion 13, because it is, as they say, "In the question was decided in the same way, the custody and regular use of a branch of the court quoted with approval the language of government as its only habitation." But Lord Chancellor Selborne in Attorney Genwhy is it in such use and custody? Clearly eral v. Great East. R. W. Co. L. R., 5 App. only because the city, its owner, does not Cas. 473, in which he said: "The doctrine of need it for any of its own public uses. Can ultra vires ought to be reasonably, and not it be supposed that if the city could adopt unreasonably, understood and applied, and it to any substantial and valuable public uses that whatever may be fairly regarded as of the municipality, it would so recklessly incidental to, or consequential upon, those neglect its duty to the taxpayers as to rent it things which the Legislature has authorizto the field officers, as they did, for $1 a ed ought not, unless expressly prohibited, to year and a covenant to maintain an insur- be held by judicial construction to be ultra ance for $10,000? The question answers it- vires"; and in the same case the Wisconsin self, and must satisfy any one who will con- court took occasion to say (referring to the sider it impartially, that it is now, notwith-cases of school districts, so much relied on standing its occupancy under the terms of by the appellants in the case now before this lease, as clearly unused property, so us): "The cases relating to powers of school far as the city is concerned, as it was be- districts cannot be regarded as an authority fore this lease was made. for limiting the powers of cities as claimed,

stricted, being at most quasi corporations, | altered by the Legislature. There was no or corporations sub modo only." The same property unused, or not needed, for the public view has been held in the federal court, in use to which it was dedicated, and conse The Maggie P. (C. C.) 25 Fed. 203. In that quently it was beyond the power of the councase the city of St. Louis through its harbor ty to override the legislative mandate that master pumped out a sunken steamer, under the whole residue be kept for a meeting place a contract with the owner, and filed a libel for the people. In Nerlien v. Village of Broot. for these services. The vessel owner raised en, 94 Minn. 361, 102 N. W. 867, a taxpayer the question whether the making of such a and dealer in flour, feed, and grain sought to contract by the city was not outside the scope restrain the use of the town hall for a simi of municipal power. The court, through Mr. lar business, and was granted the relief Justice Brewer, sustained the libel, after sought. The facts developed were that the careful consideration, saying: "When a city town hall was in use as such; that one Boh. has in its possession instrumentalities, and mer was president of the village council, and hires employés for the purpose of dischar- that the whole of the space in the building was ging some public duty, I see no reason why, not actually necessary for public use; that when the exigencies of public duties do not Bohmer for four years had been engaged in require the use of those instrumentalities retailing flour at the hall in competition with and employés, it may not make a valid con- the plaintiff, but without paying, or agreeing tract to use them in some private service." to pay, anything for the use of the hall, and This is the exact principle announced by there was evidence that the plaintiff's busiJudge Bartol in Rittenhouse v. Baltimore, ness had been damaged by this competition. 25 Md. 336, in which he says: "Where the It was also shown that the village bailiff actcorporation appears in the character of a ed as clerk for Bohmer and conducted the mere property holder, and enters into a con- business. The court found that the members tract with reference to such property, as any of the council knew of, and permitted, the private citizen or other proprietor might do, conduct of the business, and that they were or where it engages in an enterprise not nec- thus derelict in their duty in permitting their essarily connected with, or growing out of president to prostitute his office by diverting its public capacity, as a part of the local the public property from its public use, exgovernment, then all of its rights and lia- clusively to his own private gain. The elebilities are to be measured and determined ment of fraud which permeated the case not by the same rules as govern mere individual only justified, but required, the granting of persons or private corporations." The court, the injunction. In Sugar v. City of Monroe also in the same case, laid down the doctrine and Tom Stewart & Co., 108 La. 677, 32 repeated and emphasized in St. Mary's In- South. 961, 59 L. R. A. 723, the plaintiffs were dus. School v. Brown, 45 Md. 326, and Da- taxpayers and owners and licensees of an vison v. Baltimore City, 96 Md. 513, 53 Atl. opera house in Monroe, and sought an in1121, that the taxpayer cannot invoke the junction to restrain the city from using its restraining power of a court of equity unless municipal school building as a theater. A it be shown that the municipal corporation bond issue had been voted for the erection and its officers are acting ultra vires, and of certain improvements, including $20,000 where such unauthorized acts may affect for a school building. The city added $50,injuriously the rights and property of the 000, raised in some other manner, and built parties complaining. Many other cases to a fire house. Upon its completion, the city, like effect might be cited, but they may be under cover of a pretended lease to the janifound collected in 20 Enc. Law (2d Ed.) 1187, tor of the school, undertook to use the audiand notes. torium as a theater. The court said: "The Before passing from this branch of the case so-called lease is a flimsy contrivance which we will refer briefly to three cases prin- deserves but little notice. The firm of Tom cipally relied on by the appellants in opposi- Stewart & Co. had no existence when the tion to the views we have expressed and the lease was signed, and we think has none now. cases we have cited, but which we regard as Tom Stewart had been plaintiff's property in no way impairing the authority of the lat- manager at their theater, and was later made ter. In Alleghany County v. Parrish, 93 Va. janitor of the school, but the entire manage619, 25 S. E. 882, the Code authorized pur- ment of the auditorium as a theater was in chase of land for the erection of a courthouse, the chairman of the committee of the city clerk's office, and jail, and required the resi- finances." The court also said: "The case due to be planted in trees and kept as a place was not materially different from what it of meeting for the people. The county court would have been if the mayor and city counlet to Parrish a part of the courthouse cil had originally proposed to devote the $20,grounds for the erection of a law office, but 000 voted for a school building to the conafterwards brought suit in ejectment to com- struction of a theater, and had been enjoined pel its removal. Parrish filed a bill in equity from so doing." Referring to Worden v. New to quiet title, and the bill was dismissed on Bedford, 131 Mass. 23, 41 Am. Rep. 185, in demurrer. It is obvious that here the use of which it was held "that while a city could the property, outside of the prescribed build- not erect a building for business purposes,