Stewart & Co. v. Harman

• Decision Date: 25 June 1908
• Citation: 70 A. 333,108 Md. 446
• Parties: STEWART & CO. v. HARMAN.
• Court: Maryland Court of Appeals

70 A. 333

108 Md. 446

STEWART & CO. v. HARMAN.

Court of Appeals of Maryland

June 25, 1908

Appeal from Baltimore City Court; George M. Sharp, Judge.

Action by John W. Harman against Stewart & Co. Judgment for plaintiff, and defendant appeals. Reversed, without new trial.

Jesse Slingluff and William L. Marbury, for appellant.

Thomas C. Weeks, for appellee.

WORTHINGTON J.

This is a suit by an employé against his employer to recover damages for an injury which the former sustained while engaged in the performance of his duties. The defendant is a mercantile corporation carrying on business in the building at the northwest corner of Howard and Lexington streets, in Baltimore city. Plaintiff was at the time of the accident complained of employed by the defendant to make himself generally useful on the fourth floor of its place of business. Some of his duties were to clean furniture, to help carry out furniture, and, more to the point so far as this suit is concerned, to open in the morning and to close in the evening the windows of that floor. The plaintiff testified that he had performed this duty every day during the five or six months of his employment there. These windows were large their dimensions being six by eight feet, each containing a single pane of heavy plate glass from about three-eighths to one-half an inch in thickness. The windows were opened and closed by means of fixed pivots, one at the top and one at the bottom of the window frame. There was also attached to the bottom of each window frame a device for controlling the window and holding it open or shut, or at any angle desired. It is not deemed necessary for the purposes of this case to minutely describe this device, as there is no contention that it was not in good condition. On the afternoon of June 4, 1906, the plaintiff had just closed one of these windows, when in an instant a great many fragments of broken glass from the pane in that window fell upon the backs of his hands, cutting and injuring him severely. The manner in which the accident happened is briefly described by the plaintiff as follows "Q. Will you describe to the jury how you closed that window? A. It works on a pivot in the middle, and you had to push. The window closed very readily. I had the window closed, and my left hand was resting on the sill, and I was in the act of pulling down the blinds with the right hand and, like a flash, I should judge about 1,000 pieces came out and struck me here [indicating the backs of his hands]. Q. Did the glass fall outward or inward? A. Some fell outward and some fell inward." This was all the evidence offered by the plaintiff as to the manner in which the accident happened, and as he was, at the time of the accident, hidden from view by some furniture in the room, no one but himself saw how it happened, though another employé of the defendant, a Mr. Gregg, a floorwalker, who had charge of the room, testified that he could see the top of the window at the time it was closed; that the window closed rapidly, with a bang, and then he heard a terrible smash of glass. He said he examined the window immediately after the accident, and found the window glass broken out with the exception of some large pieces adhering to the beading around the edge. He also testified that, as far as he could see, the strips or beads which held the glass in the window sash were in perfect condition.

The defendant proved very satisfactorily that the window in question had been properly constructed, and the plaintiff does not on his part seriously contend that the window was not so constructed in the first place, but does contend that it was not maintained in a reasonably safe condition, and that, therefore, for its alleged failure so to maintain this window the defendant is chargeable with negligence. In what respect it was not maintained in a safe condition was not shown, and no evidence, except the fact of the breaking of the window under the circumstances above narrated, was adduced to prove any defect therein, unless the testimony of Mrs. Harman, plaintiff's wife, to the effect that a few days after the accident she was standing on the street and saw Mr. Kaufman, the glazier, putting new strips around the window, and the testimony of two other witnesses to the effect that, when they examined the window some time after the accident, they found the strips had been changed since the original construction, might be so considered. The evidence of Mrs. Harman as to what occurred several days after the accident does not prove or fairly tend to prove any defect in the window at the time the accident happened. These strips or beads to which she referred were used to secure the glass in the sash after it had been set in the rabbit, and were fastened to the sash from the outside. Possibly the old strips were broken or injured in removing the fragments of glass that adhered to the sides of the sash after the accident happened. Possibly they were broken while being removed, preparatory to putting in a new glass. When the question at issue is the liability of defendant for the alleged faulty construction or improper maintenance of an appliance, evidence of events transpiring after the happening of the accident is usually inadmissible. Columbia v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405; Ziehm v. Electric Light, etc., Co., 104 Md. 48, 64 A. 61. We think, therefore, that, as this evidence was objected to, it should have been excluded, but, as the defendant upon cross-examination elicited evidence to the same effect, the ruling of the trial court in this regard furnishes no reversible error. Leffler v. Allard, 18 Md. 545. In the view that we take of the case, however, we do not consider this evidence important.

The defendant showed that the windows in the building had been in the first instance properly constructed by a competent builder; that such construction was a safe one; that the glass was good plate glass of glazing quality; and that the beading used to hold the glass in the sash was of the usual size and sufficient to make a good construction. Mr. Grim, a carpenter employed by the defendant, testified that he boarded up the opening the afternoon after the glass was broken out, and that the beads that held the glass in the window were in proper condition; no part of them being moved out of the way. Mr. Gregg, floorwalker for defendant testified that he went to the window immediately after the accident, and found the window glass broken out, with the exception of some large pieces adhering to the beading around the edge, and that, as far as he could see, the beading seemed to be in perfect condition. He did not see where any of it was gone. Mr. Kaufman, the glazier who put the glass in the sash when the building was originally constructed eight or nine years before, testified that he put a new glass in the window after the accident, and that, when he went there for that purpose, he found the beads and everything all right, except that the glass was gone. This witness also testified that the beading originally put on the window to hold in the glass was five-eighths of an inch, and that when he went there to put in the new glass he found the beading to be seven-eighths of an inch. The witness Morrow also testified that the beading which held the glass in place was five- eighths by three-quarters. On cross-examination this witness stated that the beading at the time of the trial was larger than that originally used for the purpose of securing the glass. When the larger beading was put on the window did not appear, except from the testimony of Mrs. Harman, as above stated. The only evidence in the case therefore, to show that the window was in any respect defective on the day that the accident happened is the inference to be...