Steinwedel v. Hilbert

• Decision Date: 06 November 1925
• Docket Number: 17.
• Citation: 131 A. 44,149 Md. 121
• Parties: STEINWEDEL v. HILBERT ET AL.
• Court: Maryland Court of Appeals

131 A. 44

149 Md. 121

STEINWEDEL v. HILBERT ET AL.

No. 17.

Court of Appeals of Maryland

November 6, 1925

Appeal from Superior Court of Baltimore City; Eli Frank, Judge.

"To be officially reported."

Action by Frederick C. Steinwedel against William F. Hilbert individually and trading as the Baltimore Wire Works, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

George S. Yost and Irving H. Mezger, both of Baltimore, for appellant.

Henry H. Dinneen and Walter C. Mylander, both of Baltimore (Harry M. Benzinger and Charles M. Armstrong, both of Baltimore, on the brief), for appellees.

BOND C.J.

This is an appeal by the plaintiff in the court below from a judgment entered against him on a demurrer to his second amended declaration. The plaintiff is a member, or employee, of the Fire Insurance Salvage Corps of Baltimore, charged with the duty of saving property endangered by fire, and he alleges that in the course of his duty he went upon premises occupied by the defendant Hilbert as tenant, and owned by the remaining defendants, where a fire had originated, and that while there he was injured by falling into an elevator shaft negligently left open and unguarded. The declaration charges negligence: (1) In failing to exercise ordinary care according to general common-law principles; (2) in failing to comply with the requirement of elevator inclosures or guards contained in an ordinance of Baltimore City known as the "Elevator Code," made part of the declaration; and also (3) in failing to comply with specific orders by the inspector of buildings, acting under that Code. The defendants, now the appellees, contend that none of them were under any duty at common law to exercise the care demanded for the benefit of one who comes on the property in case of fire to put the fire out or to save goods, and that whatever the correct principle may be in case of injury to a fireman employed by the public fire department, a distinction must be drawn between that case and one of injury to an employee of the salvage corps, which is a private organization. In any event, it is urged, the salvage corps man is not in a position to demand such care from the owners or occupants of buildings. In reply to the contentions based on the provisions of the Elevator Code, it is argued that at the time of the accident the requirement of guards or inclosures about such shafts as this one had not yet become effective, and that orders of the inspector of buildings could, meanwhile, require only repairs to the elevator itself. A question whether the provisions of the Elevator Code could be construed as imposing duties toward firemen (see authorities collected in 13 A. L. R. 637, 641, and 647, Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317), and also a question of possible distinction between the liability of landlords and that of tenants for injuries from an unguarded shaft, have both been ably argued by counsel for the parties on each side, but these questions we find it unnecessary to take up. We have come to the same conclusions as those announced by the judge of the trial court; that the defendants were not under any common-law duty to the plaintiff to guard the elevator shaft, that the requirement of guards or inclosures in the Elevator Code did not at the time of the accident apply to such shafts as this one, and that, meanwhile, orders of the building inspector could require only repairs to the elevator; and these conclusions dispose of the claim of a right of recovery. They also render it unnecessary for us to discuss the distinction suggested between firemen and salvage corps men. See Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376; Cooley, Torts, 348; Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500.

Both parties agree that according to the great weight of authorities the general rule of common law is that a fireman entering premises to put out fire is a licensee only, and not an invitee, and that the owner or occupant of the premises is not under any duty of care to keep his premises prepared and safe for a fireman. Authorities collected in 30 L. R. A. (N S.) 60, 13 A. L. R. 637, and Ann. Cas. 1914B, 518. "He must take the property as he finds it, and is entitled only not to be led into danger, 'something like fraud.' " Pollock, Torts (11th Ed.) 528. And the parties agree, also, that a salvage corps man is, at most, in no more favorable a position, under common-law principles, than a fireman. But it is contended, for the appellant, that this formula, based on the simple distinction between licensees and invitees, has proved inadequate, and has been enlarged so as to allow rights of action for negligent injury to some persons who might be classed as no more than licensees, and that a re-examination of principles leads to the conclusion that a right of action exists in this case. The argument is supported, principally, by a reference to the case of Meiers v. Koch Brewery Co., 229 N.Y. 10, 127 N.E. 491, 13 A. L. R. 633. A study of that case and of the principles involved, made by Prof. Bohlen, is to be found in 69 Univ. of Pennsylvania Law Rev. 142, etc. There was a paved way on the brewery premises leading from the street to a barn or stable, and the way was designed for use both night and day, and was provided with lights. At a point 150 feet back on the way, the Brewery Company opened up a coal hole, extending across half the pavement. The barn caught fire at night, and, the lights being out, a fireman, responding to the alarm, fell into the hole and was injured. The court held that since the owner of the premises had prepared this way and kept it open for passage by night as well as by day, it was under a duty to keep the way lighted so that any one lawfully using it might discover and avoid the unguarded coal hole. And so the fireman was held to have a right of action. This decision is carefully limited, in the court's opinion, to liability to persons...