Deford v. State, to Use of Keyser

Citation30 Md. 179
PartiesBENJAMIN DEFORD v. THE STATE OF MARYLAND, use of JAMES KEYSER, and others, infants, by JAMES A. FOOS, their next friend, and of ELIZABETH C. FINK.
Decision Date19 February 1869
CourtCourt of Appeals of Maryland

Where the plaintiff's right is predicated upon the negligence of the defendant's agents, the facts giving rise to the relation of principal and agent or master and servant, should have been stated, for the finding of the jury; they should not be allowed to speculate as to what state of facts would constitute the parties the agents of the defendant.

APPEAL from the Circuit Court for Baltimore County.

This was an action under Art. 65, entitled "Negligence," of the Code of Public General Laws, brought in the Superior Court of Baltimore City against the appellant and Edwin Robinson, by and in the name of the State, for the use of James, Charles M., Edward C., Richard F. and Martin L Keyser, infant children of Mrs. Ellen Keyser, deceased, who sued by their next friend, and also for the use of her daughter Elizabeth C. Fink, an adult. The declaration alleged that Mrs. Keyser was killed by the wrongful act, neglect and default of the defendants. The case was removed from the Superior Court to the Circuit Court for Baltimore county where it was tried. At the trial, it was admitted that the appellant was the owner of a lot in the city of Baltimore situated on Lexington street near Paca, and that Robinson planned and built a brick house for him on said lot, and that sometime in July, 1864, the cornice which was also of brick and a portion of the front wall of said house which was being erected, fell on Mrs. Ellen Keyser as she was passing along Lexington street in front of the house, and she was so grievously injured that she died two days after the accident. Several witnesses testified that the cornice was too heavy for the wall, and its great weight caused it to fall. Witnesses also testified that the wall was a nine inch wall but they varied in their estimates of the extent of the projection, some fixing it at twelve inches, and some at sixteen inches from the face of the wall; that the usual projection for a cornice for such a wall was from four-and-a-half to seven inches, and that more than seven inches was dangerous, and that hundreds of people in passing by the house left the pavement in front of the house and passed by on the other side as a measure of safety, to avoid the danger which they feared from the building.

It was shewn that Mrs. Fink, one of the equitable plaintiffs, lived with her mother, Mrs. Keyser, who gave her and her minor child board and lodging; that Mrs. Fink assisted her mother about the house; that Mrs. Keyser left other children, who at her death, were over twenty-one years of age, and that Mrs. Keyser was a widow at the time of her death.

The defendants offered evidence tending to prove that the projection of the cornice was eight inches and a quarter; that the plan and mode of construction of the wall and cornice were safe and proper; that there was a severe storm of wind and rain two days before, and the day before the wall fell; that some cavalry, at the time of the accident, were passing down a cross street, from sixty to a hundred feet distant, and that there was a great rush of people from the market to see the cavalry. The defendants also proved that the appellant employed Robinson to draw plans and superintend the construction of the building; that Robinson drew a plan (being the ground plan and front elevation) which the appellant assented to; that he paid Robinson a commission of five per cent. on the value of the buildings, and that Robinson had no other interest in the matter except to make good work for the appellant, who paid for all the materials and also all the bills for all the workmen, upon the orders of Robinson; that Robinson employed one Thomas, as master bricklayer, and also two carpenters; that Thomas employed the journeymen bricklayers and hod carriers. The defendants offered evidence to prove that Robinson and Thomas were skilful men, and that the cornice was constructed in such a manner that it would not have fallen from ordinary causes, but from extraordinary causes only. The plaintiff offered evidence rebutting the defendants' testimony and tending to prove that the cornice was not constructed on the plan testified to by Robinson, and also that the plan was a very unsafe and improper one.

Seven exceptions were taken by the defendants below, which, the seventh excepted, will be found set forth with sufficient fulness in the opinion of the Court.

Seventh Exception: Upon all the evidence in the cause the plaintiff offered the following prayers:

1st. If the jury shall find from the evidence that the defendant, Deford, was the owner of the lot of ground in the city of Baltimore, on Lexington street, near Paca, mentioned in the evidence, and that his agents were constructing thereon for his benefit, the building mentioned in the evidence, and that the cornice of said building fell and caused the death of Mrs. Ellen Keyser, and that said agents of Deford did not use ordinary care, skill and prudence in constructing said building, and in guarding against accidents, while the same was in course of construction, and that the death of Mrs. Keyser was the result of such want of ordinary care, skill and prudence on the part of said agents, and was a natural result thereof; and further, that Mrs. Keyser could not have avoided the casualty which caused her death by the exercise of ordinary care and caution, and that she did on that occasion use such care and caution; their verdict must be for the plaintiff against the defendant, Deford.

2d. If the jury shall find from the evidence, the want of ordinary care, skill and prudence on the part of the agents of Deford, as mentioned in the plaintiff's first prayer, and that the death of Mrs. Keyser took place under the circumstances mentioned in said prayer, and that such want of ordinary care, skill and prudence, directly tended to produce said death, and was adequate to produce such result, and that the effects of such want of ordinary care, skill and prudence, were in operation at the time of the accident, which resulted in her death, and that her death would not have occurred if the agents of Deford had used the ordinary care, skill and prudence, mentioned in the first prayer; then the jury are to consider that Mrs. Keyser's death was caused by the want of ordinary care, prudence and skill on the part of the agents of Deford; even although they may also believe that some other cause contributed to bring about said death.

The defendants then offered prayers, substantially as follows:

1st. If the jury find from the evidence that Ellen Keyser died without a husband or parent surviving her, but left four other children than those named in the declaration and bill of particulars, all of whom were alive at the institution of this suit, and three of whom still survive; and if they further find that Elizabeth C. Fink, one of the cestuis que use named in the pleadings, was, at the death of said Ellen Keyser, over the age of twenty-one years, then the plaintiff cannot recover in this case, because a bill of particulars of the names of all said children of Ellen Keyser, was not furnished to the defendants or their attorney, together with the declaration.

2d. If the jury find that Ellen Keyser left other children surviving at her death, and surviving also at the date of the suit brought, and still surviving, who are not joined or named, either in the declaration or bill of particulars, then the plaintiff cannot recover under said pleadings in this case, because of such non-joinder.

3d. That the plaintiff cannot recover unless it be shown affirmatively by proof, that the death of Mrs. Keyser resulted wholly from the wrongful act of the defendants, or one of them, or his or their servants or agents; and also how the accident occurred.

4th. That the plaintiff is not entitled to recover unless it can be shown by whose fault or neglect the fall of the wall was occasioned.

5th. If reasonable care were taken by the defendants to guard against accidents arising from ordinary causes, in the course of the construction of the wall, the plaintiff is not entitled to recover, if the falling of the wall be attributable to extraordinary causes.

6th. That in the plan and construction of the front wall and cornice, the defendants were only required to exercise reasonable skill and care; and the burden of proof was on the plaintiff to show affirmatively, to entitle him to recover, that the falling of the wall and cornice, and the death of Mrs. Keyser, were occasioned by the want of such reasonable skill and care on the part of the defendants or their servants.

7th. If the defendants and their servants, in and about the plan and construction of the wall and cornice, used ordinary and reasonable skill and prudence; and the said wall and cornice fell from some cause unknown to the jury, and is not to be attributed to the want of skill and care of the defendants, then the plaintiff is not entitled to recover.

8th. If there were no neglect or default in Robinson, he is not responsible for the neglect or default of any one else.

9th. The hypothesis of this prayer is presented with more clearness and fulness in the twelfth.

10th. That the defendants are not, nor is either of them responsible for any negligence of their bricklayer, carpenter or other workman, if such person or persons so employed, were competent, skilful and careful men in their business; and the plaintiff is not entitled to recover, if the falling of the wall were not caused by any act, neglect or default of the defendants, or either of them, but of some other such person as above...

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