State v. Flanigan
| Decision Date | 09 December 1909 |
| Citation | 74 A. 818,111 Md. 481 |
| Parties | STATE, to Use of JOYCE et al., v. FLANIGAN et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore Court of Common Pleas.
Action by the State, for the use of Kate T. Joyce and others against Patrick Flanigan and another, trading as P. Flanigan & Sons. From a judgment for defendants, plaintiffs appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.
John G Schilpp and R. E. Lee Marshall, for appellants.
William P. Lyons and William L. Marbury, for appellees.
This is an action brought by the state for the use of the widow and infant children of Peter Joyce, deceased, to recover damages for his death caused by the alleged negligence of the defendants, copartners, trading as P. Flanigan & Sons. The defendants are contractors engaged in laying drain pipes and building sewers, the senior member of the firm having been in that line of work in Baltimore city for 23 years, and the deceased was a laborer in their employment, and at the time of his death was assisting in excavating a trench for a sewer near the corner of Maryland avenue and Twenty-Eighth street in said city. The declaration alleges that, "while engaged in the conduct of his said employment, the said Joyce on or about the 19th day of September, 1907, in obedience to the directions and orders of the defendants, descended into said pit and was thereupon overcome by certain noxious or poisonous gases accumulated in the bottom of said pit, in consequence of which he died on the day aforesaid." It further alleges that "the defendants knew, or by the exercise of ordinary care ought to have known, of the presence of said poisonous gases in said pit, and of the risks and dangers attendant thereon, but the said Joyce had no knowledge or means of knowledge of the same; that the defendants negligently and wrongfully failed to ascertain the presence of said gases, or to take any steps to remove the same before sending said Joyce into said pit, and negligently failed to give any notice or warning to said Joyce of the presence and danger of encountering said gases; and that said Joyce used all due care and prudence on his part, and that his death was wholly due to the negligence of the defendants, without any want of care on his part." There were 14 exceptions during the course of the trial to the rulings of the court upon questions of evidence, and at the close of the testimony on both sides the court instructed the jury that under the pleadings in the case there was no evidence legally sufficient to entitle the plaintiff to recover, and that their verdict must be for the defendants upon the issues joined. The fifteenth exception was taken to this ruling, and the appeal is from the judgment entered on the verdict for the defendants.
George Zimmerman, inspector of drains in the engineer's department of Baltimore city, testified: That the appellees applied for and received a permit to lay a 20-inch drain pipe from St. Josephs House of Industry to the conduit of Sumwalts lane and Twenty-Ninth street. That they started on September 13, 1907, to dig through the bed of Twenty-Ninth street to tap the sewer under this street, and that on the morning of September 19th the work had so far progressed that the opening in the street was 23 feet 6 inches deep, 8 feet 6 inches long, and 4 feet 6 inches wide. That it was his duty to inspect such work, and that he did so for that purpose twice each day. That he was there on the morning of September 19th about 9:30, and that the inspection disclosed the same condition as the day before, except that the opening was a little deeper, and that it was 25 feet from the surface of the street to the arch of the sewer to be tapped. That there was nothing but rainwater in the opening, and no connection had then been made with St. Josephs House of Industry. The accident occurred about 8 a. m. September 19th. There were three platforms in the excavation constructed to pass the earth from one to another in removing it from the excavation, and these platforms were also used to get into and out of the pit. Two of these platforms were on one side and one on the other--one near the top on the west side, the second lower down on the east side, and the third still lower on the west side.
Charles Jordan, foreman of the gang, testified that about 7:30 on the morning of the accident the planks with which the hole was covered for safety during the night were removed, and the men prepared to go down to work; that he had other men at work nearby, and he himself was with them about 200 feet from this hole; that in a few minutes after the removal of the planks covering the hole some one called out that something was wrong with Joyce in the hole; that he immediately ran and jumped from one platform to another to the bottom of the opening where Joyce was lying on the earth, with Glick and Smith, two of the gang, trying to get Joyce out, and he endeavored to help them; that in half a minute Smith dropped also and Glick let go, and came out of the pit; that he held on longer, but was also forced to let go and come out, and that Joyce and Smith were both dead when taken out a little later; that he neither smelled nor tasted anything while in the pit, but that his legs became weak and gave way, and everything turned black, but he did not know what caused this. Joseph Semone and Thomas Burns, bystanders, bravely volunteered to attempt the rescue of Joyce and Smith, and Semone was first lowered by a rope, and was brought up with the body of Joyce, and Burns in like manner was lowered and brought up with the body of Smith.
Semone testified that while in the pit that the thing which had affected him he would call foul air accumulated from garbage that was dumped there; that he had known the locality for five years, and that the soil through which this hole was dug was garbage and collection of the street ashes and such stuff as that on the bottom, and that he had seen it filled in.
Burns testified that he felt "the same sensation as any one had who caught hold of electricity and had it go through you; that he did not smell anything because he had a handkerchief tied over his nose, and that he had no taste in his mouth from the substance, whatever it was."
Charles Jones, who was working nearby for the People's Sewer Contracting Company, heard the cry that there was something wrong in this pit, and he tried to go down to the rescue, but, when he got to the second platform, "everything turned blue and he crawled out; that he smelled nothing, but had a taste in his mouth, and felt himself becoming weak; *** that he knew the locality all his life; that the soil is just a bed of garbage, ashes, and street dirt."
Sergt. Boone of the police force, knew the locality for 35 years. He said: "The character of the soil is ashes, rubbish, paper," etc. He said he was present when the bodies were drawn out, and he smelled a foul odor, part like garbage, but not like dead animals or rotten eggs, or anything of that sort. Officer Warner of the police force, who was also present when the bodies were removed, said that he smelled a bad odor, but did not know what it was; that it smelled like a dump, just the same as a dump smells when there is something burning on it.
Amos Albaugh testified that he had known the locality for 35 years and that it was a dumping ground; that "the soil was principally ashes, a fill of ashes."
Mr. Theobald, inspector of the storm water division of the sewerage commission, who constructed a trap manhole right beside this opening in July, 1908, said "the soil was almost entirely ashes," and when asked if there was any garbage or ordinary dumping, said "it looked like ordinary dumpage." He also testified that he had been engaged in work of that character for 15 years previous, and that during that period he had only twice worked in soil of the character under consideration--once in the construction of the manhole just mentioned, and again at the Mt. Royal Pumping Station, where the soil was composed of "ashes, old shoes, tin cans, and glass." He did not state when this last work was done, but presumably after this accident, since that occurred Sept. 19, 1907, and he stated that he was not with the sewerage commission until about Sept. 1, 1907, and that work was done for the commission.
Dr Penniman, an analytical chemist, and Mr. Ezra B. Whitman, a specialist in chemistry and biological analysis of water and fluids, testified that the decomposition of garbage, containing vegetable matter, when in contact with air, produces carbon dioxide, commonly known as "carbonic acid gas," which will not support combustion, is much heavier than air, and sinks to the lowest accessible level, and, when present in quantities ranging from 3 per cent. to 10 per cent. of the atmosphere, is fatal or dangerous to human life. Dr. Penniman testified that he had no personal experience whatever as to earth gases in made ground, and that his experience was from reading upon the composition of air; that he was familiar with the gases given out by the decomposition of vegetable matter ordinarily found in garbage, but that if he were told "a large amount of garbage, including vegetable matter, ashes, and cinders, had been dumped in a certain place for six or seven years," he could not say positively what gases would be formed, and Mr. Whitman said he had occasion to study the effect of decomposed garbage and the chemical changes that took place for the city of...
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