Combustion Engineering Co., Inc. v. Hunsberger, to Use of State Acc. Fund

• Decision Date: 11 November 1936
• Docket Number: 6.
• Citation: 187 A. 825,171 Md. 16
• Parties: COMBUSTION ENGINEERING CO., INC., v. HUNSBERGER, TO USE OF STATE ACCIDENT FUND.
• Court: Maryland Court of Appeals

187 A. 825

171 Md. 16

COMBUSTION ENGINEERING CO., INC., v. HUNSBERGER, TO USE OF STATE ACCIDENT FUND.

No. 6.

Court of Appeals of Maryland

November 11, 1936

Appeal from Superior Court of Baltimore City; George A. Solter Judge.

Action by Jacob Hunsberger, individually and to the Use of the State Accident Fund, against the Combustion Engineering Company Incorporated. From a judgment for plaintiff, defendant appeals.

Reversed without a new trial.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

William L. Marbury, Jr., and Jesse Slingluff, Jr., both of Baltimore (L. Wethered Barroll and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellant.

Leonard Weinberg and Zanvyl Krieger, both of Baltimore (Weinberg & Sweeten and Everett L. Buckmaster, all of Baltimore, on the brief), for appellee.

BOND Chief Judge.

An employee of a subcontractor on construction work in a building, after having been awarded compensation for an injury under the Workmen's Compensation Act, has sued over and recovered a judgment against another subcontractor on the ground of negligence of the defendant causing the injury. Code, art. 101, § 58. The defendant on appeal questions the refusal of the trial court to direct a verdict in its favor, and the granting of instructions to the jury on prayers of the plaintiff which are thought to have excluded a defense from consideration.

The work was reconstruction of a boiler room for the United States Industrial Alcohol Company, and it had been going on for three months or more. The Combustion Engineering Company was finishing erecting on each side of the boiler, from the first floor up to a height of 30 to 35 feet, an iron air duct, or preheater of air for the furnace, consisting of a shaft or chamber inclosed on the sides and surmounted by a box cover, also inclosed except for a small door for cleaning out, near the top. Within the preheater there were plates extending throughout the length, 27 in number, spaced about an inch or an inch and a half apart, and supported by angle irons at intervals. Inside the top were shelves for workmen to lie on when cleaning out. The plates, or elements, as they were called, were to be welded at the top, and that was the work being done at the time of the accident. Below the preheaters, in the basement, the plaintiff's employer McNamara & Co., had recently started work of constructing connections of the preheaters with the boiler. The basement was open, no floor boards having been laid above it.

At the beginning of the day's work on the morning of the accident, Walter Durdella, one of the Combustion Company's workmen, climbed the ladder to the top of the particular preheater they had been working on at the close of the last preceding working day, and began work of forcing the tops of the plates, or elements, in position for his brother to weld them together from outside the box. The force was applied by means of a metal wedge, in size about a quarter of an inch by about one inch and a half, and ten or eleven inches long, hammered in between two plates. The restriction on the space required Durdella to do the work lying on his stomach. While he was doing this twenty to thirty minutes after starting work, a wedge fell down through the preheater and struck and injured the plaintiff working underneath it. Durdella's explanation of the occurrence--and he was the only man who had knowledge of what occurred at the top--was that he first drove the wedge in until he was sure it was held fast in place, then, resting his weight on one arm, with the other gave it a hard stroke; and as he did so the wedge jumped out and found its way down through the preheater. At the time Durdella supposed that it must have lodged in the preheater somewhere.

The plaintiff's case was rested on an assumption that the mere fact of the falling of the wedge afforded evidence of negligence, and the trial court, on a prayer of the plaintiff's instructed the jury that this was true. But this court does not agree in that view. There must be evidence from which the jury might reasonably and properly conclude that there was negligence. Annapolis & B. S. L R. Co. v. Pumphrey, 72 Md. 82, 19 A. 8: Gans Salvage Co. v. Byrnes, 102 Md. 230, 245, 62 A. 155, 1 L.R.A. (N.S.) 272; Serio v. Murphy, 99 Md. 545, 556, 58 A. 435, 105 Am.St.Rep. 316; Benedick v. Potts, 88 Md. 52, 40 A. 1067, 41 L.R.A. 478. And apart from any question of the effect on a prima facie presumption, if there should be one, of evidence of the facts produced by a defendant ( Byrne v. Boadle, 2 H.C. 722, Heim v. Roberts, 135 Md. 600, 605, 109 A. 329), the court is of opinion that the mere fall of a tool being used within the building, in work of construction, cannot be presumed to result from negligence, because it cannot be supposed that such a thing is probably the result of negligence every time it occurs. On the contrary, it would seem likely that with workmen handling loose tools continually, the falling of some of them at times must be expected despite all precautions. To presume otherwise would be to presume a perfection in men's work which we know does not exist. Precautions that will ordinarily keep falling objects from an adjacent highway are required, for the work should not invade the highway. And temporary covered walks built below construction work are common sights. When objects have dropped on highways it has been presumed, prima facie, that the dropping resulted from lack of the requisite precautions to keep them off. Decola v. Cowan, 102 Md. 551, 62 A. 1026; Strasburger v. Vogel, 103 Md. 85, 63 A. 202. And there may also be material used in construction work which would not be dropped inside the building if ordinary care were exercised. The case of the fall of scantling, Clough & Molloy v. Shilling, 149 Md. 189, 131 A. 343, is an instance. In a Massachusetts case cited, even the fall of a piece of scantling has been viewed as a normal incident of construction work, not to be presumed negligent. Kimball v. George A. Fuller Co., 258 Mass. 232, 154 N.E. 762. But as stated, it seems to the court plain that there must be some falling of small tools and other objects handled with ordinary care in the course of the work,...