American Paving & Contracting Co. v. Davis

Thomas, J., delivered the opinion of the Court. The declaration in this case contains three counts. In the first count it is alleged that on the 18th of September, 1914, the plaintiff was the owner and occupant of a frame dwelling house on the northeast comer of Old York road and Wyanolce avenue, in Baltimore City, known as number 600 Wyanoke avenue, and also the owner of a large quantity of furniture and other household articles contained in said dwelling; that on the day mentioned the defendant, its servants and agents, were engaged in grading a portion of Old York road, one of the public highways of the city, and in the prosecution of the work operated a steam shovel opposite and in close proximity to the dwelling of the plaintiff, and that in consequence thereof the dwelling, furniture and other household articles of the plaintiff were partially destroyed by fire occasioned by sparks emitted from the shovel while being so operated, and was further damaged in an effort to extinguish the fire and to save the property from total destruction, and the plaintiff was also deprived of the use of the property for two and a half months; that the sparks were so emitted because the defendant, its servants or agents, negligently and wrongfully used upon the highway mentioned a steam shovel ⁴⁷⁹ which was so constructed and equipped as to make its use dangerous to all buildings near the place of its operation, and that the fire was due to the lack of ordinary care on the part of the defendant, etc., in the selection and equipment of the steam shovel, and not to any negligence on the part of the plaintiff directly contributing thereto. The second count charges that the sparks were emitted because the steam shovel was negligently and carelessly operated by the defendant, etc., and the third count alleges that the sparks were emitted because of the negligence and carelessness of the defendant, etc., in no providing the steam shovel with suitable fixtures for preventing the emission of sparks therefrom after allowing a sufficient draft to create sufficient steam to properly propel the shovel, etc. The defendant demurred to the declaration and each count thereof, but the Oowrt below overruled the demurrer, and the trial of the ease resulted in a verdict and judgment in favor of the plaintiff for $1,382.50, from which jxrdgment the defendant has appealed.

During the trial the defendant reserved eleven excentions, the first ten of which are to rulings of the Court below on the evidence, and the remaining exception is to the action of the lower Court on the prayers. As the defendant’s first, third and fifth prayers present the contention of the defendant, that there is no evidence in the case legally sufficient to entitle the plaintiff to recover for the damage caused hv the fire to either the dwelling or furniture, they will, for the sake of brevity, be considered in connection with the ruling on the demurrer. The plaintiff’s house was located on the corner of Old York road and Wyanoke avenue, with a frontage of twenty-two feet on Wyanoke avenue and a depth of fifty-turn feet on the Old York road. It was a frame dwelling, cohered with wooden shingles, which had been on the house about twenty-five years.

For some time prior to the fire, which occurred on the 18th of September, 1911, the defendant was engaged in grading Old York road, and in doing tbo work ⁴⁸⁰ used a steam shovel. The diameter of the smokestack of the engine, which extended several feet above the cab, was about ten inches. At the time of the fire the shovel was being operated at a point west of, and about thirty feet from, the rear end of the plaintiffs dwelling, and the wind, which was blowing from the west, carried the sparks from the smokestack to the plaintiffs house. There had been no rain for some time, and the shingles -on the roof of the house were very dry.

The defendant had been operating the steam shovel in the neighborhood for about ten days, and a number of witnesses testified that when the steam shovel was in operation large and glowing embers or sparks, ranging in size from that of a chestnut to that of a pigeon egg, were emitted in large quantities from the smokestack and blown from thirty to forty feet in the air. James A. Clark, the captain of No. 31 Engine Company, testified that while his company was engaged in extinguishing the fire, and he and the engineer of the company were on the third floor of the plaintiff’s dwelling, sparks from the steam shovel about the size of his little finger fell upon them. The evidence also shows that there was no fire in the house during the afternoon of the day of the 'fire, and that the fire which destroyed the third story of the dwelling and caused the damage complained of, started on the roof and on the side next to where the steam shovel was in operation, and that the steam shovel was not provided with a spark arrester of any kind. The contention of the appellant is that the declaration does not specify the particular act or acts of negligence relied upon, and that the evidence fails to show that the fire was caused by sparks from the steam shovel or was due to any act of negligence on the part of the defendant.

In Sims v. American Ice Co., 109 Md. 68 , the first count charged that the sparks which caused the fire “were thrown out because the said defendants had negligently and wrongfully used upon the said line of railroad engines which were so constructed and equipped as to make the use of said engines dangerous to all combustible property near the line of said ⁴⁸¹ railroad,” and that the fire was due to the lack of ordinary care on the part of the defendants in the selection and equipment of the engines, and the second count alleged that the sparks “were thrown out because the said engines were negligently and carelessly operated.” The attention of the Court was directed to the declaration by the prayers and also by a demurrer to one of the pleas, and the Court below sustained the demurrer to the plea, and this Court, on appeal, affirmed the judgment in favor of the plaintiff. The allegations in the present case are not less specific. The pleader is not required to set out the evidence upon which he relies to establish his cause of action. All that is required of him is such reasonable certainty in the averments as will fully apprise the defendant of the nature of the charge against him, and enable him to prepare for his defense.

Phelps v. Howard County, 117 Md. 115 . Negligence in such cases may consist in the use of a steam shovel not properly constructed, or which was not in good order, or not supplied with suitable fixtures to prevent injury from fire, or may consist in the failure to exercise such care and diligence in using the same as would be exercised by skillful, prudent and discreet persons under like circumstances; B. & S. R. R. Co. v. Woodruff, 4 Md. 242 ; B. & O. R. R. Co. v. Shipley, 39 Md. 251 ; 33 Cyc. 1332-36. In the case of Green Ridge R. R. Co. v. Brinkman, 64 Md. 52 , the Court said: “In the plaintiff’s third prayer the jury were told that if they believed from the evidence that the engine ‘habitually scattered sparks to such an extent as to endanger combustible material along the line of the road,’ it is a fact from which they may find negligence on the part of the defendant. In A. & E. R. R. Co. v. Gantt, 39 Md. 135 , a witness stated that he had seen the engines ‘scattering large sparks in passing, capable of setting fire to combustible articles along the road; and that about a week before he had put out a fire in the leaves caused by these sparks; but he could not say that he had ever seen any such sparks from the locomotive that was drawing the freight train on the morn ⁴⁸² ing of the fire.’ Chief Judge Bar/tol, in delivering the opinion of the Court, said: ‘We entertain no' doubt that this was competent and