Bernheimer Bros. v. Bager

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellee against the appellants for injuries sustained by the former by reason of the alleged negligence of the latter. The defendants were engaged in the construction of a building in the city of Baltimore, and the plaintiff was employed by them, as a laborer. At the time of the injury he was at work in the cellar, on the excavation for the foundation.

The lot of the appellants fronts on the north side of Fayette street and runs back to Marion street — adjoining on the west a building known as Nixon’s Hotel. In making a foundation of sufficient depth, it became necessary to underpin a part of the Nixon wall, as the foundations of the Bernheimer building went below the. level of those of the Nixon property. A prop was put against the Nixon wall, at a point about 25 feet above the ground, and the other end rested on a piece of joist placed against the rear end of a wall of the kitchen of one of the buildings on the appellants’ property, which was being torn down. The witnesses differed as to the length of the prop^ but it was apparently about forty-two feet long." The joist which was two inches thick and twelve inches wide rested, at the bottom, upon some'bricks which were in a bank of sand and clay and described as the footing of the wall.

A few feet above the bank a cleat was nailed to the joist, and the lower end of the prop rested on it. The prop was constructed of two timbers about six by six inches, spliced together by boards six inches wide and two inches thick nailed on the four sides, and there was a brace under it made by what is called a king, piece which was at right angles to it, and from the end of that, ⁵⁵⁵ boards were run up obliquely to the prop for the purpose of making it more rigid. Boards were also run from the prop to the wall of a house on Fayette street, which was parallel with the prop, and were fastened to the window frames of that house. There were also some props against the house on Fayette street which extended under the large one spoken of, although not placed there to support the latter.

The appelleewas working under the main prop when it fell, and one of the boards which was broken off struck him, causing the injuries complained of. Two exceptions were taken to the admissibility of evidence, but as the first question objected to was answered in such way as could not possibly do the appellants any injury,, it will be unnecessary to further refer to it. The plaintiff first offered evidence to show that the witness was competent as an expert, and then asked him a hypothetical question as to whether it was safe to construct a prop as therein stated. He replied that it was a hard question to ánswer and did not express an opinion.

Another was then asked him, and the witness replied : “If, as you say, the board was supported on sand, and didn’t have a wide base to support it, it naturally wasn’t safe; sand makes a good foundation when confined and well surrounded. ” It is difficult to see how that answer could injure the defendants — especially when taken in connection with his-cross-examination. What he said could scarcely be disputed. It is therefore useless to discuss those exceptions, for if there was any error in permitting the questions to be asked the answers were harmless. The remaining bill of exceptions presents the .rulings on the prayers.

The Court granted the first, second, fourth and fifth offered by the plaintiff, and rejected all (eleven) offered by the defendants. It also overruled special exceptions to the second and third of the plaintiff, but as it rejected the third the. special exception to it need not be considered. We will first consider those of the defendants. The first,, second and third sought to take the case from the jury on the. ground that there was no legally sufficient evidence to entitle ⁵⁵⁶ the plaintiff to recover.

As the first and third referred to the pleadings, we will examine the declaration. It alleges that the defendants “negligently and insecurely constructed” the prop, or beam, as it is therein called; “that because of the negligence and carelessness of the defendants in erecting and constructing said beam, insecurely and unsafely, said beam fell down striking the plaintiff while he was attending to his work, and without notice or warning;” and that “although it was the duty of said defendants to furnish said plaintiff a safe place to do his work and safe surroundings yet they neglected to do so and because of the negligent way in which the defendants erected and put in position, extending from one side of the building on which they employed the plaintiff to the other side thereof, a long heavy beam which fell by reason of said defendants' negligence and which the defendants knew said beam was dangerously constructed, but the plaintiff did not know it,” etc. It will be observed that while the negligence relied on refers, for the most part at least, to the insecure and unsafe erection and construction' of the beam, the nár. also alleges that the beam “fell by reason of said defendants’ negligence” — not by reason of defendants’ said negligence. Just what was intended by that expression is not altogether clear, but it apparently did not mean to confine the negligence to the erection of the prop — although it does not seem to us to be very material in considering these prayers. Mr. Preston, the building inspector of the city, and others said that the prop was safe in the way in which it was erected.

Mr. Preston not only occupies that official position, but he was also in the employ of the appellants and was one of the defendants in this case — although it was subsequently non grossed as to him. But, notwithstanding the evidence of Mr. Preston and others, there were facts before the jury from which they were authorized to conclude that the prop was not securely and safely erected. It could not be expected that those that had been connected with its erection would testify to any thing other than what they did — indeed, it would be doing them an injustice to say that they did not believe that it was prop ⁵⁵⁷ erly erected, as it would have been gross, if not criminal, negligence on their part to place it in such a position, unless they did so believe. But the plaintiff and the jury were not concluded by their opinions.

It was admitted that when the prop was erected, a contract had been let to George W. Howser & Company to tear down all the old buildings on the lot- and excavate the cellar, which included the ultimate removal of the bank upon which the prop rested. Of course, we do not mean that it was intended by the appellants, or those acting for them, that the bank should be removed while the prop was still on it, but it must have been understood that they would excavate near the bank and they knew they would eventually remove it. Mr. Townsend, the foreman of the appellants, testified that the bank was four or five feet wide on the top, sloped down on a grade of about forty-five degrees and was about six feet high. He also said that the joists, against which the lower end of the prop rested, was at or about the end of the wall of an old kitchen, in the rear of the lot..

At the time of the accident the kitchen wall had been taken down to the first floor, and the joists and the floor had been taken out. The wall was still about seven or eight feet above the bank, and there was a cross wall at the corner which Mr. Townsend said strengthened it. The joist, set up against the wall, was not nailed or fastened to it, and in the language of the plaintiff; “It led down into the ground a little, only for a short ways,” “there were only two courses of brick there and they were loosened, and there was no strength at all to carry the prop, except just the footing where it was on.” It was shown that before the accident he did not know how the prop was fastened or how deep the joist was in the bank, and that no warning had been given to him about it. Mr. Townsend, Mr. Preston and other witnesses said that it was not necessary to fasten the joists to the wall, or put the end of it in the ground, as the weight and pressure of the prop would keep it in position.

But the fact is that something caused the prop to slide off the joist, and the east end of it fell clear ⁵⁵⁸ (north) of the corner of the wall, and the joist also fell down after the prop fell. The west end of the prop, after it fell, rested on the three props which had been placed against the north wall of the building on Fayette street — they having undoubtedly been the means of saving from injury, possibly death, other men working under the large prop. There was therefore some evidence before the jury from which they could properly draw the inference that the prop had not originally been safely erected — especially in view of the fact that the ground was intended to be excavated at and about the bank, and that the bank itself would eventually be removed. If the appellants’ theory be correct — that the accident was occasioned by a colored man named Mosby digging on the bank — then there did occur just what might reasonably have been anticipated.

Mosby testified that on the morning the prop fell he was told by his employer, Mr. Shott, of the firm of Howser & Co., to dig on the bank, and that he was digging about two feet from the foot of the prop when it fell; that he did not strike it and no one had warned him not to dig. Mr. Townsend testified that he had notified either Mr. Shott or Mr. Radecke the foremen of Howser & Company, not to allow the bank of earth to be disturbed, but he was not certain which of them he so notified and thought it was Mr. Radecke. At any rate Mosby said Mr. Shott told him to do the digging, and even if Mr. Townsend notified both of them, it only shows the necessity of not taking chances and merely relying on such instructions, instead of fixing the prop in the beginning in a way that it would not be liable to be thrown down by the carelessness or ignorance of others. There was not even a notice placed on the bank, warning the workmen not to dig or otherwise disturb it.

There is certainly nothing in the evidence that would necessarily convince the jury that the joist, or some kind of timber, could not have been placed deep enough and be fastened to the wall, so as to make it safer than it was, and when it was known that a contract had been let to make the excavations, .including that very bank, it was not an unreasonable precaution to require to be taken. When ⁵⁵⁹ the lives and limbs of those who were to work in that place were at stake, the appellants, and those representing them, ought not to have been satisfied with the ordinary means of securing a prop from which there would be