Evans v. Murphy

• Decision Date: 01 April 1898
• Citation: Evans v. Murphy, 87 Md. 498, 40 A. 109 (Md. 1898)
• Parties: EVANS v. MURPHY.
• Court: Maryland Court of Appeals

40 A. 109

87 Md. 498

EVANS v. MURPHY.

Court of Appeals of Maryland

April 1, 1898

Appeal from circuit court. Allegany county.

Action by Michael Murphy against David M. Evans. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, BRISCOE, PEARCE, FOWLER ROBERTS, PAGE, and BOYD, JJ.

Ferd. Williams and Geo. A. Pearre, for appellant. Benj. A. Richmond and Daniel J. Lewis, for appellee.

PAGE J.

This suit was instituted by the appellee to recover damages for injury to his property and business occasioned, it is alleged, by the careless conduct of the appellant. The appellant was the owner of a building, situate in the town of Lonaconing, two stories in height, and divided on the first floor into several rooms, with a large hall covering the entire upper floor. The appellee was the tenant of one of the lower rooms, which was used by him as a storeroom,--for the storage and sale of merchandise such as is usually kept in a country store. His tenancy was from year to year, beginning from the 1st day of May; so that he was entitled to the possession and use of the premises until the 1st day of May 1897. The flat tin roof that covered the building was supported in part by a line of posts running lengthwise the building, through the center of the hall. In December the appellant, with the view of making alterations in the building, removed these posts, and undertook to support the roof by means of iron bars running across the building. These bars were fastened on the outside of the building, and were in three pieces, joined, not by being welded, but hooked to each other by bent ends. On the 6th day of February, snow having fallen and accumulated to the depth of several inches on the roof, the ends of the rods pulled apart, under the pressure, and precipitated large quantities of snow and water down upon the floor of the hall in the second floor, from whence water ran through into the room of the appellee rendering it untenantable, and greatly damaging his property. It is alleged that all this damage was done to the appellee and his property by the careless and negligent weakening of the supports under the roof by the appellant.

The first exception presents a question of evidence. The appellee, having presented himself as a witness, testified that immediately after the accident he and his neighbors went to work as fast as they could, carrying out the goods, and placing them in a storeroom near by, and left them piled up, wet, on the floor, where they remained for three days, during which time he was occupied in attending the funeral of his mother, in an adjoining state; that on Tuesday (the accident having occurred the preceding Saturday) he examined the goods carefully, and made a memorandum of each article, and the extent to which it had been damaged. He produced the memorandum, and was about to read from it; but the counsel for the appellant objected to the use of the paper, and also to the witness stating what the condition of the goods was when the examination of them was made. The court overruled these objections, and permitted the witness to testify as to the condition of the goods on Tuesday, and further ruled that the witness "could not read the paper to the jury, and that it could not be used by the witness except for the purpose of refreshing his recollection, but that the witness might take the paper, and refresh his recollection thereupon." Having already testified that the entries upon the paper were made by himself contemporaneously with the examination of the goods, it was proper for the witness to use the memorandum for the purpose of refreshing himself. And even if he was unable to recall each article, independently of the paper, yet, if he made it himself, and knew it was correct when so made, he could so testify. Martin v. Good, 14 Md. 411; Green v. Caulk, 16 Md. 572.

The objection of the appellant, however, goes to the general admissibility of the evidence, upon the ground that the goods having remained piled up, in a wet condition, from Saturday until Tuesday, a statement of the extent of the injury on the latter day would include, not only the damage resulting from the accident, but also such as might be attributable to the negligence of the appellee in failing to take reasonable care of the goods. It was undoubtedly the duty of the appellee after the accident, to avoid the consequences of the wrong of the appellant, as far as he reasonably could; and the court very properly so instructed the jury, by the plaintiff's second prayer, as well as by the defendant's second prayer. But whether the appellee exercised such reasonable care after the accident, in averting the consequences of the accident, was a question for the jury, when they came to the assessment of the damages. Now, evidence as to the happening of the accident, and as to the appellee's dealing with the injured property thereafter, allowing the wet goods to remain piled up on the floor since Saturday, had already gone to the jury. Under these...