Frenkil v. Johnson, to Use of National Retailers Mut. Ins. Co.

• Decision Date: 10 January 1939
• Docket Number: 61.
• Parties: FRENKIL et al. v. JOHNSON, to Use of NATIONAL RETAILERS MUT. INS. CO.
• Court: Maryland Court of Appeals

3 A.2d 479

175 Md. 592

FRENKIL et al. v. JOHNSON, to Use of NATIONAL RETAILERS MUT. INS. CO.

No. 61.

Court of Appeals of Maryland

January 10, 1939

Appeal from Baltimore City Court; Edwin T. Dickerson, Judge.

Action by J. Alexander Johnson, to his own use and to the use of the National Retailers Mutual Insurance Company, against Victor Frenkil, individually and trading as the Central Wrecking Company, and others to recover for injuries sustained while seated in his automobile in street when explosion occurred in building which defendants were razing. Judgment for plaintiff, and defendants appeal.

Affirmed.

Walter L. Clark and Roszel C. Thomsen, both of Baltimore (Clater W Smith and Morris Rosenberg, both of Baltimore, on the brief) for appellants.

Palmer R. Nickerson, of Baltimore (Due & Nickerson, of Baltimore, on the brief), for appellee.

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

PARKE Judge.

The plaintiff was driving an automobile southward on St. Paul Street, in Baltimore, at about a quarter to nine o'clock on the morning of September 22, 1937. He was the first of a line of automobiles in the same lane of travel which were stopped by a traffic signal light at the intersection of St. Paul Street with Lexington Street. The defendant was engaged at the time in the demolition and removal of an old building which was built to the inner street paving lines at the northwest intersection of the streets. Almost as quickly as the plaintiff's sedan stopped, an explosion took place within the remaining walls of the building. There was first a terrific noise and crash, and then a precipitation of debris which was hurled into St. Paul Street and beyond its eastern boundary line. Some of the flying glass and material was driven by the force of the explosion against and into the sedan and inflicted slight cuts upon the plaintiff and damaged the automobile. For these injuries the plaintiff brought suit against the defendant, and recovered a judgment from which this appeal is taken.

The defendant and his servants were in possession of the premises where the explosion occurred. The front part faced on Lexington Street and was a three-story brick building with cellar, and a one-story brick building in the rear on St. Paul Street. The defendant had begun the work on September 13th when the interior partitions and doors were removed as were the windows of the second and third stories. The actual wrecking operations continued from the fourth day. The rear one-story portion of the building on St. Paul Street had been taken down to the level of the ground and the roof of the main building, which fronted on Lexington Street had been removed at the time of the explosion on the ninth day of their labor. No scaffolding had been built. Five men and a foreman were the workers. The method employed was to work down from the top of the outer walls by prizing loose the bricks with an iron pinch-bar and placing them on the floor where they were at work so that later they could be shot down to the ground in a chute which had been built back of the building. As the mortar was broken and the bricks were prized, masses of bricks, about a foot square, to the number of from 18 to 20 would occasionally fall outside and drop a distance of some 40 feet to the cement pavement on St. Paul Street within the section of the sidewalk which had been roped off to prevent its use by pedestrians. Some 28 inches below the surface of the pavement where these blocks of bricks, after dropping, struck the sidewalk, two service pipes of 1 1/2 inches in diameter and about 15 feet apart led from a 6 or 8 inch main, which ran north and south, under the St. Paul Street pavement, at the same depth as the service pipes and 15 feet distant from the eastern wall of the building. From this main and through the service pipes illuminating gas was delivered, through meters, to the occupants of the building.

The men employed in razing the building would work at the top of the building and throughout the premises wherever and whenever there was occasion for them to go in tearing down the walls, cleaning and piling on the ground the bricks and other material, and doing whatever else was necessary in the performance of their jobs. There is testimony tending to show that servants of the defendant detected the escape of illuminating gas on the premises when the work of razing was begun, and reported the condition to their employer several times before the Gas Company sent a man to investigate. He removed the gas meters, and plugged the service pipes at their openings in the cellar and left. Nothing else was done by the Gas Company, but gas continued to enter the building in the cellar, and to spread throughout the structure, and its presence in the building was made known to the defendant by its odor which was smelled by his servants while they were engaged in the gradual demolition of the building. The explosive quality of illuminating gas and its effect upon consciousness and life are generally known. The windows and doors of the celler and first floor of the building had not been removed. All that was necessary for an explosion was a lighted match, cigarette or cigar carelessly dropped or thrown where gas was confined. Even a spark from a casually struck piece of brick, stone or metal, or from an electric wire would have been sufficient. These perils are familiar, but there is testimony tending to show that the defendant ignored them and neither investigated the cause nor made any effort to abate the constant danger which was present until it culminated in the explosion.

At the time of the accident, five of the workmen were on the third floor and the sixth was on the first floor, but it does not appear what he was doing there. He was knocked down, his clothing set on fire and he was burned. The glass of the windows on the first floor was shattered and scattered, and this workman went out through one of the windows on St. Paul Street. The testimony was to the effect that the gas did not escape by any defect in the closing of the ends of the two service pipes, but entered the cellar through the stone foundation wall along St. Paul Street on either side of a service pipe. After the explosion the gas was escaping from a large leak in one of the old, corroded service pipes, near its connection with the gas main, and, also, from an apparently new, longitudinal break in the main. The points of escape were about 15 feet distant from the cellar wall.

The Gas Company was not shown to be negligent in its removal of the meters, but its alleged default was in the care and maintenance of its gas pipes and main under the public way some 15 feet outside the building line. See Brady v. Consolidated Gas Co., 85 Md. 637, 642, 37 A. 263. If there be neglect of the Gas Company in the escape of the gas, which found its way into the cellar of the building, the conduct of the defendant, after the gas was discovered to be flowing into the building, if negligent, and such negligence should be, either independently or jointly in union with that of the Gas Company, the proximate cause of an injury to a third person, in the exercise of due care, the defendant would be liable to the third party in an action of tort.

Within certain limitations the general principle of law is that one must use his own rights and property so as to do no injury to those of others. ^[1] Thus the occupier of premises is under the duty not to injure the travelers upon the public streets adjacent to the premises, and if during such occupancy and because of the negligence of the occupier an explosion occurs on the premises and thereby debris of the building occupied is driven into the public street and, in the use of the highway, a person and the automobile in which he is traveling thereon in the exercise of reasonable care and diligence, and struck and injured by such debris, the occupier is liable for such injuries. ^[2] Should, however, the explosion be of illuminating artificial gas which had invaded the premises through the neglect or unauthorized interference of a third person so that what was otherwise safe became dangerous, the occupier is not liable until he knew or, in the exercise of reasonable prudence and diligence, should have known, of the altered and dangerous condition, and continues it after such knowledge is so acquired or imputed. Halsbury's Laws of England (2d Ed.) vol. 23, pp. 621, 622; Restatement of the Law of Torts, vol. 2, sec. 364(c), p. 987, sec. 368, p. 996; Cooley on Torts (3d Ed.), pp. 123, 124; Hunt v. Lowell Gas Light Co., 1 Allen, Mass., 343; Bartlett v. Boston Gas Light Co., 117 Mass. 533, 538, 19 Am.Rep. 421; Pollack on Torts (8th Ed.) 437-439; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N.E. 84, 4 Am.St.Rep. 279; and see generally for valuable annotations, 25 A.L.R. 262-304; 47 A.L.R. 488-494; 90 A.L.R. 1082-1108.

Hence after the occupier or possessor knows or should know of the danger of the artificial condition of the premises to others outside the land, and fails to exercise reasonable care and diligence to make the condition reasonably safe either by removing the danger or by giving adequate warning or by using other effective safeguards, the occupant or possessor becomes liable to persons outside the land for injuries which are the proximate result of such artificial conditions. Supra; and see Consolidated Gas Co. v. Crocker, 82 Md. 113, 122, 123-125, 33 A. 423, 31 L.R.A. 785; Brady v. Consolidated Gas Co., 85 Md. 637, 642-644, 37 A. 263; Consolidated Gas Co. v. Connor, 114 Md. 140, 151, 152, 78 A. 725, 32 L.R.A.,N.S., 809; Chesapeake & Pot. Tel. Co. v. Miller, 144 Md. 645, 652, 125 A. 436; Tri-State Engineering Co. v. Graham, 158 Md. 328,...