Chesapeake Iron Works v. Hochschield, Kohn & Co.

Thomas, J., delivered the opinion of the Court. The appellees in the summer of 1911 conducted a department store on the comer of Howard and Lexington streets, in Baltimore City, and they employed Morrow Bros, to erect an addition to their store. Morrow Bros, contracted with the appellant company for the erection of the structural iron and steel work in the new building. The proposed improvement necessitated the tearing down of the north wall of the old building.

Along this wall there was a four-inch iron pipe, which ran from the basement to the upper stories of the building to the height of about fifty feet, with which were connected a number of smaller pipes, the whole forming a sprinkler system designed as a protection against fire. After the north wall of the old building was tom down, the vertical ,pipe of the sprinkler system was supported by a prop in the basement and by its connection with the lateral pipes which branched off from it at each floor of the old building. In the construction of the iron and steel work in the new building the appellant had to raise and place in a vertical position heavy iron columns. These columns were lifted and placed in position by means of a derrick on top of the adjoining building.

Erom the derrick and boom ran a cable to which a block was attached, and when a column was to be moved the block was hooked to an iron chain fastened around one end of the column. The evidence produced by the plaintiffs shows that one of these iron columns was lying on the fourth floor of the building, and that in order to place it in position it had to be lifted and carried across a space nineteen or twenty feet wide by means of the derrick; that in placing this column one end of it was lifted from the floor by means of the derrick, operated by the employees of the appellant, and that after it had been raised a certain height one of the employees of the appellant took a “pinch bar’-’ and pried ³⁰⁶ the other end of the column off the floor, and the column swung across the open space and struck the vertical pipe of the sprinkler system with sufficient force to break it or one of its connections, in consequence of which the plaintiffs’ store was flooded and their building and stock of goods were damaged. The plaintiff’s evidence also tends to show that the sprinkler system was in good condition at the time of the accident, and that there was no guy line or tag line attached to the lower end of the column when it was pried off the floor by which the employees of the appellant could control or direct the swing of the column after it left the floor; that it is customary to use a guy line or tag line for that purpose, and that it would be dangerous to attempt to place a column in position under such circumstances without using a guy line, attached or fastened to the lower end of the column. The defendant offered evidence to show that after one end of the column was lifted from the floor at an angle of about forty-five degrees, a guy line was fastened to the other end of the column, and that the man holding the guy line wrapped the other end around a window sill in order to make it easier to control the column after it left, the floor; that this guy line was a one-inch rnanila rope, which had only been used a short time, and was in good condition, and that it was larger than the rope ordinarily used for that purpose; that after the lower end of the column, which weighed about 2500 pounds, was pried off the floor, the guy rope broke and the column swung across the open space and struck a girder and the pipe connected with the sprinkler system; that the method employed by the defendant in placing the column was the usual and customary one, and that it is usual to wrap the guy line around some object in order to better control the column, and to pry the lower end of the column off the floor in order that it may swing to the position in which it is to be placed; that the defendant could not account for the breaking of the rope, which was apparently in good condition, unless it was due to some secret or hidden defect in the ³⁰⁷ rope, which could not have been detected by an inspection.

The defendant also offered evidence tending to show that after the wall of the old building was pulled down the pipes of the sprinkler system were left in an exposed position; that the defendant told the plaintiffs or their agents that it-would be dangerous to erect the iron work in the new building with the pipes in that condition, and requested that they be removed; that the plaintiff had some of the pipes moved, but neglected to move the pipe that was broken, and that the defendant told the plaintiffs or their agent, that if it went ahead with the work it would be done at the risk of the plaintiffs, and- that the defendant would not be responsible for any damage caused by injury to the pipes. There is also evidence in the case tending to show that there was no danger of injuring the pipes of the sprinkler system if proper care was exercised, and from which it could have been inferred that the breaking of the rope used as a tag line was due to the sudden dropping of the beam from the edge of the floor after it was pried off. The case was tried before the Court below without a jury, and the trial resulted in a judgment in favor of the plaintiffs, from which this appeal was taken. There are but three exceptions in the record, the first two being to the refusal of the Court to admit certain evidence offered by the defendant, and the third to the ruling of the Court on the prayers.

In the first two exceptions the defendant asked one of the plaintiffs if they had made any claim against the insurance company for damages, and the witness having replied that their claim was in the neighborhood of $5,000.00, he was then asked if the insurance company paid that amount, and if the plaintiffs didn’t accept less than $5,000.00, and the Court, upon objection by the plaintiffs, refused to permit the questions to be answered. There was no error in these rulings. It is said in 38 Cyc. 537: “It will be no defense that the injured party has been indemnified by insurance, although he has collected all or a part of such indemnity,” ³⁰⁸ and in 13 Cyc. 70: “The rule seems to be w.ell established by the authorities that the fact of insurance can not be set up in mitigation of damages, whether such reduction is set up in mitigation in case of fire, life, marine or accident insurance.” In the case of City Pass. Ry.

Co. v. Baer, 90 Md. 108 , this Oourt said: “The sixth prayer asserts the correct proposition that any sick benefits received by the plaintiff from any source other than the defendant were not to be considered by the jury in making up their verdict.” At the conclusion of the testimony the Oourt below granted plaintiffs’ fifth prayer, which is as follows: “Plaintiffs’ pray the Oourt to rule as a matter of law that if the Oourt sitting as a jury find from the evidence that the servants or agents of the defendant, -while moving or hoisting a heavy piece of structural iron or column by means of a derrick, and acting within the scope of their employment, permitted and allowed said piece of structural iron or column to strike against a valve or pipe upon plaintiffs’ premises with such force as to break same, this will be prima facie evidence of negligence on the part of the servant or agents of the defendant under the circumstances while moving or hoisting said piece of structural iron or column, and unless upon the whole evidence,'such prima fade evidence is rebutted, then the verdict must be for the plaintiffs.” And the Oourt rejected defendant’s first prayer which asserted that the plaintiffs had offered no evidence legally sufficient to show any negligence on the part of the defendant or its agents which caused or directly contributed to the accident mentioned in the declaration. The negligence charged in the declaration is that the defendant, while erecting said building, and moving a heavy piece of structural iron, in the course of said work “wrongfully and negligently permitted the same to strike against and break a valve or pipe upon plaintiffs’ said premises, connected with an automatic sprinkler system therein situated” thereby causing the damage complained of, and the question presented by these prayers is whether the striking and break ³⁰⁹ ing of the pipe in question in the manner and under the circumstances disclosed in the evidence adduced by the plaintiffs gives rise to a presumption of negligence on the part of the defendant, in other words, does the case presented by the plaintiffs’ evidence fall within the line of cases to which the doctrine of res ipsa loquitur applies ? In the case of Howser v. C. & P. R. R. Co., 80 Md. 146 , where the plaintiff while walking along a foot path which extended along the roadbed of the defendant, but not only its right of way, was struck by cross ties which fell from a passing train and was injured, the Court held that the circumstances under which the injury occurred justified a presumption of negligene as against the defendant. In the coursé of the opinion in that case the Court said: “Whilst the general rule undoubtedly is, the burden of proof that the injury resulted from negligence on the part of the defendant, is upon the plaintiff, yet in some cases, ‘the very nature of the action may, of itself, and through the presumption it carries, supply the requisite proof.’ Wharton on Neg ligence, par. 421.

Thus when the circumstances are, as in this case, of such a nature that it may be fairly inferred from them that the reasonable probability is that the action was occasioned by the failure of the appellee to exercise proper caution which it readily could and should have done; and in the absence of satisfactory explanation on the part of the appellee a presumption of negligence arises against it.” In support of its 'conclusion the Court referred to many English cases and quoted the following statement in Scott v. London Dock Co., 3 Hurl. & Colt. 596: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” And among the American cases cited and relied upon by the ³¹⁰ Court was the case of Cummings v. The National Furnace Company, 60 Wis. 603 , where “the defendant company was engaged in unloading iron ore from a vessel by means of a crane to which was attached a bucket. Whilst so engaged the bucket tipped and threw its contents upon a seaman lawfully working upon the deck of the vessel,” and where the Court said: “The accident itself was of such a character as raised a presumption of negligence either in the character of the machinery used or in the care with which it was handled, and as the jury found the fault was not with the machinery, it follows that it must have been in the handling, otherwise there is no rational cause shown for its happening.” Howser's case is cited with approval in the case of W. U. Tel. Co. v. State, Etc., 82 Md. 293 , where a child was injured by coming in contact