Treusch v. Kamke

• Decision Date: 11 March 1885
• Citation: 63 Md. 278
• Parties: CHARLES TREUSCH v. CAROLINE KAMKE, by Her Husband and Next Friend, Leopold Kamke.
• Court: Maryland Court of Appeals

63 Md. 278

CHARLES TREUSCH v. CAROLINE KAMKE, by Her Husband and Next Friend, Leopold Kamke.

Court of Appeals of Maryland

March 11, 1885

Appeal from the Court of Common Pleas.

The case is stated in the opinion of the court.

First Exception stated in the opinion of the court.

Second Exception.--This exception was taken by the defendant to the rejection of his prayers, nineteen in number, and to the following instructions given by the court(Phelps, J.) to the jury:

1.If the jury find that the plaintiff, without negligence on her part, was injured by the falling of the wall of the defendant's house, and that the fall was occasioned by the want of ordinary care or skill in its erection, which rendered the structure unsafe, and that said unsafe condition was known to the defendant, or might by the exercise of reasonable diligence on his part have become known to him and that the accident might have been prevented by the exercise of ordinary care and skill on the part of the defendant, then the plaintiff's injury was due to the defendant's negligence, and she is entitled to recover such damages as the jury may think will compensate her for the same.

2.In determining whether the plaintiff's injury was due to the defendant's negligence, which the jury must find affirmatively and by a preponderance of evidence, in order to entitle the plaintiffs to a verdict, the jury may consider the fact of the fall itself, the manner of the fall, the time of the fall, the force and direction of the wind, as well as the construction of the building in point of material and workmanship, and all other facts in evidence which may, in their judgment, throw light upon the cause of the accident.

3.If the jury find for the plaintiff, they are to consider her health and condition before the injury complained of, as compared with her present condition in consequence thereof and whether the same is in its nature permanent, and how far if at all, it is calculated to disable her for those employments for which, in the absence of such injury, she would have been qualified, and also the physical and mental suffering, if any, to which she was subject by reason of said injury, and to allow her such damages as may, in their opinion, be a fair and just compensation for said injury.

The verdict and judgment being for the plaintiff, the defendant appealed.

The cause was argued before ALVEY, C.J., YELLOTT, STONE, MILLER IRVING and BRYAN, JJ.

John B. Wentz, for the appellant.

D. Meredith Reese, for the appellee.

Stone J., delivered the opinion of the court.

This is an action brought by Caroline Kamke against Charles Treusch for a personal tort.The declaration charges that the defendant, Treusch, was possessed of a lot of ground in the City of Baltimore, and that he erected on his lot a warehouse, but that the building was so carelessly, unskilfully and negligently put up, and with such insufficient and improper materials, that in consequence the building suddenly fell, and, in falling, seriously injured the plaintiff, Caroline.

The defendant demurred to the declaration, but the demurrer was overruled, and the defendant then pleaded not guilty, and the case was tried by a jury, and the verdict and judgment being against the defendant, he has appealed.The ruling of the court upon the demurrer is open for review in this court, as well as the exceptions taken at the trial.There were two exceptions taken at the trial--the first to the admissibility of certain evidence, and the second to the refusal of the court to grant the instructions asked for by the defendant, as well as to the instructions that were given by the court.We will first dispose of these exceptions, and afterwards of the demurrer.

The exception as to the admissibility of the evidence is one of trivial importance.The plaintiff had given in evidence that the house had fallen on Sunday morning, and then had proved by Gintling, a carpenter, that he examined the ruins on the Wednesday following, and went on to prove by him the thickness of the walls of the fallen house, and in the course of his examination, Gintling said that a part of the roof had been taken away before he got there.The plaintiff then asked the witness:

"Where was the roof of the building when you arrived there?"To this question the defendant objected, but the court overruled the objection, and in so doing committed no error.

The whole object of the testimony of Gintling was to show the cause of the fall of the house.The location and position of the different parts of the debris after the accident was proper to go to the jury, and might have enlightened them to some extent as to the cause of the accident.The length of time that had elapsed between the time of the accident and the examination of Gintling may have weakened the force of the evidence, if there was any particular force in it, but the jury were entitled to know its position, as it might have given them some information, even if but little.The evidence was therefore admissible.

The second exception involves the instructions asked for by the appellant, and which were refused by the court, and also those actually granted.The appellant offered a number of prayers, nineteen in all; but if the instructions given by the court stated the whole law of the case correctly, it was all that the appellant could rightfully ask, and...