Gans Salvage Co. v. Byrnes
| Decision Date | 23 November 1905 |
| Citation | 62 A. 155,102 Md. 230 |
| Parties | GANS SALVAGE CO. v. BYRNES. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas; George M. Sharp, Judge.
Action by Robert Byrnes, to the use of James Higgins, against the Gans Salvage Company. From a judgment for plaintiff defendant appeals. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, JONES, and BURKE, JJ.
Carroll T. Bond and George Weems Williams, for appellant.
James Fluegal, for appellee.
The appellant is a body corporate engaged in the prosecution of a general salvage business. After the great tire, which caused a vast destruction of property in Baltimore City, on February 7 and 8, 1904, the appellant contracted to remove a quantity of canned goods from the cellar of a building which, before the fire had consumed it, had stood on South street. The plaintiff, who is the appellee on this record, was one of a number of men employed by the appellant to do the work of removal. Several walls or parts of walls of the building were standing after the fire was extinguished and at the time the salvage work was commenced. In the declaration it is alleged that "the building was dangerous and unsafe to work in," and that the "dangerous condition of said building was known to the defendant, but unknown to the plaintiff; that the plaintiff while using due care and caution in the said building was, by the negligence of the defendant in thus having him work in the said dangerous and unsafe premises, *** seriously and permanently injured *** by the collapsing of a wall and other parts of the said building." The case went to trial before a jury upon the issue joined on the plea of not guilty, and resulted in a verdict against the defendant. From the judgment entered on that verdict, the pending appeal was taken. During the progress of the trial five exceptions were reserved. Four of them relate to rulings concerning the admissibility of evidence and the fifth brings up for review the action of the trial court on the prayers submitted for instructions to the jury.
As this is a suit by a servant against the master to recover damages for a personal injury sustained by the former in the course of his employment, negligence is the gravamen of the action. The negligence averred in the declaration consisted, if it existed at all, not merely in a failure of the appellant to exercise ordinary care to provide its servant, the appellee with a reasonably safe place in which to perform the labor he had been employed to do, but in deliberately putting him to work in the ruins of a building known by the appellant, but unknown by the appellee, to be in a dangerous condition. The alleged negligence relied on to sustain a recovery was therefore not simply an omission to discharge some duty which the master owed to the servant, but involved an affirmative act of commission in the assignment of the servant to a situation which the master knew and the servant did not know to be perilous and insecure. Under the declaration it was incumbent on the appellee to prove by legally sufficient evidence, first, not only that some of the walls of the building in question, which were left standing after the fire, were in a dangerous condition and liable to fall, but that the identical wall, which by falling caused the injury complained of, was also in that same condition when the appellee was placed or retained at work in close proximity to it; secondly, that the appellant had knowledge of the dangerous condition of the wall which by collapsing injured the appellee, and that it, the appellant, possessed that knowledge prior to the occurrence of the accident; and, thirdly, that the appellee was ignorant of the danger, and by the exercise of proper prudence and care could not have discovered it before the wall fell upon him.
A brief outline of the facts appearing in the bills of exception must be given before turning to a consideration of the legal principles which underlie and will control the final decision of the several questions presented to this court by the record. The building, in the cellar of which the appellee and others were working when the accident happened, had been completely destroyed by the fire. Some partition walls and a brick vault, which extended from the cellar to the top story were left standing. All of the wood material had been consumed by the flames. The fragments of the walls still standing and the brick vault were not supported by any of the timbers which had formerly tied the outer and the inner walls together. The ruins showed merely a heap of débris, a few fragments of walls, and the remnant of the brick vault. This vault was built of brick, and was about four or five feet square, with openings into it on each floor. These openings in the face of the vault had iron doors attached. Thus the tenants of each floor were provided with a vault for the protection of their books and papers. After the fire this vault stood for a height of 30 or 35 feet, and presented the appearance of a square stack or chimney with iron doors opening into it at each floor. The cellar of the house was divided up into arched compartments, and in these the cases of canned goods were closely packed. In order to get them out after the fire, it was necessary to dig through the arched tops of the compartments, and this was done by the appellee and the other laborers engaged in the work of removing the goods. The work of removing the cases had progressed for several days under these conditions. There was a foreman who had charge of the hands, and both the foreman and the hands worked under a man named Ratinger, who had full charge of and supervision over the salvage work for the appellant company. Several days before the accident happened James W. McCuen, an inspector of furnaces, who was a subordinate of Building Inspector Preston, went to the premises where the appellee and the other employés of the salvage company were working, and told the foreman "to take care of the walls as they were coming down, as it was dangerous for the men to go further down without taking care of them, and he said he would." This message was delivered to the foreman, because Building Inspector Preston, who had not seen the condition of the walls and who had no personal knowledge concerning them, had been informed "that there were some men working in a cellar on South street, where it was dangerous." The building inspector directed McCuen "to go down there and notify them to take care of the walls if they continued working there," and McCuen without making any minute or even casual inspection of the walls, because, as he says, he did not have time to do so, merely communicated to the foreman the warning sent by Mr. Preston. The foreman thereafter repeated to Ratinger the message delivered to McCuen. After McCuen had left, and after Ratinger had learned from the foreman what the building inspector had directed to be done, one of the walls was thrown down under the supervision of Ratinger, but the vault stack was allowed to remain. There is not a particle of evidence in the record to show that the vault walls, the four walls forming the four or five feet sqaure vault stack, were unsafe or dangerous or even impaired. On the contrary, three witnesses examined on behalf of the appellee, they being the foreman and two of the 18 men employed by the appellant, distinctly and emphatically say they thought the vault walls perfectly safe because they were solid. McCuen did not tell the foreman that the vault walls were unsafe. He did not go into the cellar; he made no special inspection of the vault walls; he is not a builder, but a furnace inspector; and he testified that he thought in his judgment "if they would attempt to clear that débris out without protecting the walls, before they could get away from them, they would weaken and would fall down." He further testified: On March 7, 1904, it rained and no work was done by the men on the premises in question, though they had worked there several days the previous week. On the following day, March 8th, work was resumed, and whilst the appellee and other laborers were in the cellar, and whilst Ratinger was standing within a few feet of the vault, the vault walls fell and injured the appellee and...
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