Baltimore Refrigerating & Heating Co. v. Kreiner

• Decision Date: 12 January 1909
• Citation: 71 A. 1066,109 Md. 361
• Parties: BALTIMORE REFRIGERATING & HEATING CO. OF BALTIMORE CITY v. KREINER.
• Court: Maryland Court of Appeals

71 A. 1066

109 Md. 361

BALTIMORE REFRIGERATING & HEATING CO. OF BALTIMORE CITY v. KREINER.

Court of Appeals of Maryland

January 12, 1909

Appeal from Baltimore City Court; Alfred S. Niles, Judge.

Action by Thomas Kreiner against the Baltimore Refrigerating & Heating Company of Baltimore City. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.

An instruction in an action against a cold-storage warehouseman for injuries to goods placed in storage for hire that, if the jury find certain facts therein recited, the law presumes that the damage was caused by the negligence of the warehouseman, is erroneous, because it withdraws from the jury the right to determine whether negligence may be inferred from the facts of the case. The following prayers were asked by plaintiff and given by the court:

"(1) The plaintiff prays the court to instruct the jury that if they find that the squabs, ducks, and chickens mentioned in the evidence were in good and marketable condition and properly prepared and packed for cold storage when they were deposited by the plaintiff and accepted by the defendant for cold storage during the months of July and August, 1904 (if the jury find such deposit and acceptance), and that the same squabs, ducks, and chickens were in a damaged condition when they were delivered by the defendant to the plaintiff during the months of January and February, 1905 (if the jury find they were so delivered) and if they further find that the damaged condition of said poultry was due to the negligence of the defendant--that is, to the failure of the defendant, or its agents or employés, to exercise that degree of care and skill or to employ those means and facilities which ordinarily prudent business men in the same business and under the same circumstances would have exercised and employed in the storage and preservation of like goods so deposited--then their verdict will be for the plaintiff.

"(2) The plaintiff prays the court to instruct the jury that if the jury believe that the poultry mentioned in the evidence was in good and marketable condition and properly prepared and packed for cold storage when it was delivered by the plaintiff to the defendant during the months of July and August, 1904 (if the jury find such delivery), and that the same poultry was in a decayed and damaged condition when it was withdrawn by the plaintiff from the defendant's warehouse during the months of January and February, 1905 (if the jury find it was so withdrawn), and that there is nothing in the nature of poultry such as the plaintiff's to cause it to become decayed and damaged from being left in cold storage for the time the plaintiff's poultry was, and if the jury further find that during the interval between the delivery of said poultry to the defendant's warehouse and its withdrawal therefrom said poultry was in the exclusive possession of the defendant, then the law presumes that the damage to said poultry was caused by the negligence of the defendant, and the verdict of the jury will be for the plaintiff, unless the defendant shows to the satisfaction of the jury that its negligence (if the jury find that it was negligent) did not cause the damage to said poultry.

"(3) The plaintiff prays the court to instruct the jury that, even though they find that the cellar of the cold-storage warehouse of the Baltimore Refrigerating & Heating Company was without any carelessness or negligence on the part of said company flooded on December 28, 1904, by the bursting of a city water main one square and a half away from said cellar, and that the damage to the plaintiff's poultry (if the jury find that it was damaged) was caused by such flooding of the cellar, the plaintiff is still entitled to recover in this case, provided the jury further find that the said cellar was not a reasonably proper and safe place for the cold storage of the plaintiff's poultry; that is to say, that an ordinarily prudent business man in the same business and under the same circumstances would not have stored similar poultry in said cellar.

"(4) The plaintiff prays the court to instruct the jury that although they may find that the cellar of the defendant company's cold-storage warehouse was without any negligence or carelessness on the part of said company flooded on December 28, 1904, by the bursting of a city water main one square and a half away from said cellar, and although they find that the damage to the plaintiff's poultry (if the jury find that it was damaged) was caused by such flooding, still if the jury further find that ordinarily prudent business men in the same business and under the same circumstances, in case they had stored similar goods in said cellar, would have provided and kept in working order some outlet or drainage from said cellar, and that the defendant did not provide or keep in working order such outlet or drainage from said cellar, then the plaintiff is entitled to recover in this case, provided the jury further find that said flood of water would not have gotten into the ice box or freezer where the plaintiff's poultry was (if the jury so find) if the defendant company had provided such outlet or drainage, and kept it in working order.

"(5) The plaintiff prays the court to instruct the jury that even though they find that the cellar of the cold-storage warehouse of the Baltimore Refrigerating & Heating Company was flooded on December 28, 1904, by the bursting of a city water main one square and a half away from said cellar, and that the damage to the plaintiff's poultry (if the jury find it was damaged) was caused by such flooding, the plaintiff is still entitled to recover in this case, provided the jury further find that the water from the city's main would not have gotten into the ice box or freezer built in said cellar where the plaintiff's poultry was (if the jury so find) if the defendant company had exercised reasonable care, as defined in the plaintiff's third prayer, in the construction of said ice box or freezer, or in keeping the doors to said ice box or freezer closed.

"(6) The plaintiff prays the court to instruct the jury that, if they find for the plaintiff, then the measure of damages is the difference between the market value of the squabs and chickens in their damaged condition and the market price of good and marketable squabs, ducks, and chickens of the same kind at the various times when said poultry was delivered by the defendant to the plaintiff, with interest at 6 per cent. from March 1, 1905, in the discretion of the jury."

The following prayers were asked by defendant:

"(1) The jury is instructed that no sufficient evidence has been introduced to show that the damage to the plaintiff's poultry was caused by any negligence on the part of the defendant, the Baltimore Refrigerating & Heating Company, and their verdict must be in favor of said company.

"(2) If the jury believe from the evidence that the plaintiff stored with the Baltimore Refrigerating & Heating Company the poultry mentioned in the evidence, and that the said poultry was damaged while in the warehouses of the refrigerating company by reason of the bursting of the city water main, which caused the water to run into the said warehouse, and if the jury further find that the refrigerating company took such care of said poultry as a prudent man would take under similar circumstances of his own property, then the verdict must be for the defendant, the Baltimore Refrigerating & Heating Company.

"(3) If the jury find from the evidence that the plaintiff stored with the Baltimore Refrigerating & Heating Company the poultry mentioned in the evidence, and that the said poultry was delivered to the plaintiff in a damaged condition, and such condition was caused by the bursting of the city water main, the burden is on the plaintiff to show that there was any negligence on the part of the refrigerating company which caused the damaged condition of the poultry."

The court gave defendant's second prayer, but refused the others.

Argued before BOYD, C.J., and PEARCE, SCHMUCKER, BURKE, and WORTHINGTON, JJ.

Robert H. Smith, for appellant.

Bagby & Bagby, for appellee.

WORTHINGTON J.

This suit was instituted by the appellee against the appellant to recover the amount of loss which the former sustained by reason of the deterioration in quality of a large quantity of dressed ducks, chickens, and squabs which he (the plaintiff) had in cold storage for hire, at the defendant's cold-storage warehouse at 410 South Eutaw street, in Baltimore city. The plaintiff alleges negligence on the part of the defendant in failing to exercise due and proper care in managing and maintaining its cold-storage warehouse wherefore the poultry became decayed, mouldy and practically unmarketable. The remote cause of the injury seems to have been the bursting on December 28, 1904, of one of the city's water mains on Eutaw street about 500 or 600 feet north of the defendant's warehouse. The water from this broken main ran underground along one or more of the several pipe lines in the street, and some of it reached and made its way into defendant's cold-storage cellar, flooding the cellar to the height of four or five feet, and submerging a number of boxes containing the poultry in question. The cellar remained in this flooded condition for 24 hours or more before the leak could be repaired and the water from the cellar removed. The ice box or refrigerator where the poultry was stored was the rear part of the cellar, being separated from the front part by a so-called insulated partition. In this partition was a door opening from the front part of the cellar or vestibule into the ice box. Under this door was a crevice one-sixteenth, of an inch...