E. H. Beck & Co. v. Hanline Bros.

Thomas, J., delivered the opinion of the Court. The declaration in this case contains three counts. The first count charges that the plaintiffs occupied the premises in Baltimore City known as 23 and 25 South Howard street; that the defendant, Isaac Kaffel, owned the premises immediately adjoining on the north known as 21 South Howard street, which was occupied by the defendant, Eberhard H. Beck, trading as E. H. Beck and Company, as the tenant of the said Baffel; that the defendants, “for their own use and purposes,” brought upon their said premises water from the mains in the bed of Howard street by pipes connected with the general water supply system of the City, and that they negligently and carelessly suffered and permitted the water pipes upon their said premises to be and remain in a defective condition, and that by reason of their negligence and carelessness in the premises, on the 9th day of January, 1912, the water escaped and flowed from said pipes in large quantities, and, overflowing the premises of the defendants, “perculated ⁷¹ through the wall” dividing their said premises and the adjoining premises of the plaintiffs and overflowed the plaintiffs’ premises “and damaged the plaintiffs’ goods.” The second count charges that the defendants negligently permitted the pipes on their said premises to freeze and hurst with the results stated in the first count, and the third count alleges that the defendants brought said water upon their said premises “for the purposes” stated, and that the pipes on their said premises leaked and burst, and that large quantities of water flowed therefrom upon the premises of the defendants and upon the property of the plaintiffs and injured the plaintiffs’ goods. The defendants pleaded that they did not commit the wrong alleged, and the trial of the case in the Baltimore City Court resulted in a verdict and judgment in favor of the plaintiffs against both defendants for five hundred dollars, from which judgment they have appealed.

During the trial the defendants reserved fourteen exceptions to the rulings of the Court on the evidence, and three to the action of the Court on the prayers offered on behalf of both defendants and those presented by each of the defendants separately. The evidence shows that the defendant, Kaffel, was the owner of the property known as 21 South Howard street, and that the same, at the time of the injury complained of, was in the possession of the defendant, Beck, as his tenant. Water was introduced into the property by a pipe connected with the city water supply system and running under the pavement into the defendants’ cellar, and was used in operating an elevator located in the front part of the cellar and extending from the cellar to the upper stories of the building. The cellar extended beyond the building line, and there was an area-way in front, which was covered by an open grating.

Between the front of the cellar and the open area-way there was a wooden “frame work with glass windows and a door of ordinary sash construction.” There was no heat in the cellar, and no provision was made for heating it, and the pipe, the bursting of which caused the damage complained of, and ⁷² which, was called the stand pipe, was located, according to the testimony of the plaintiffs’ and defendants’ witnesses, from seven to nine feet from the open area-way. This pipe was ahont three inches in diameter and five feet high, and was supplied with a valve so that the water could be turned off and the pipe drained. According to the usual proper method of construction, a wheel is attached' to the valve and the valve is opened and closed by turning the wheel. Stopcocks are not used in pipes of that size, and in the absence of a wheel the valve could not be turned off except by the use of a monkey wrench or a Stilson wrench.

On the morning of the 9th of January, 1912, the employees of the plaintiffs, upon reaching the plaintiffs’ property between six and six-thirty o’clock, heard the water running in the defendants’ cellar. As soon as the door of the defendants’ building was opened the witness, Wiegand, went into the defendants’ cellar and turned the water off. The pipe was leaking at the valve and the water was coming out of the pipe with great force. When he went into the defendants’ cellar he found that there was no wheel on the valve and he went into the plaintiffs’ building and got the wheel off the valve in the plaintiffs’ cellar, but finding that it did not fit the valve on the defendants’ pipe he returned to the plaintiffs’ building and got a Stilson wrench, and turned the water off. -Mr. Beck, one of the defendants, states that a police officer came up to his 'house about six o’clock in the morning and told him that the pipe had burst; that he immediately dressed and ran down to the store,- and when he went into the cellar and found out what was wrong, he “ran up to Koethe’s, the plumbers', to see whether” he could get him, or get a wrench of some kind to turn the water off, as he did not have one in his building; that Oothe was not there and that he then went up to Oothe’s house and found that he was not up; that Kothe’s tools were not at his house and someone there gave him a pair of pliers; that when he went back to the store he found that the pliers would not work, and that that while he was trying them one of the plaintiffs’ employees got a wrench from the plaintiffs’ ⁷³ building and turned the water off.

He further stated that he knew sometime before the accident that there was no wheel on the valve in the defendants’ building, that there was no wheel there when he took possession of the property, and that he had notified Mr. Raffel of that fact. On the.15th of January, 1912, he wrote counsel for the plaintiff as follows: “Yours of the 13th to hand. Your clients informed you correctly when they stated that the water pipe was in a defective condition for sometime. As to any claim for damages would refer you to Mr. Isaac Raffel, the owner of the building, who looks after all repairs.

We had quite a loss ourselves, and are making our claim upon him also, as it was through his negligence that the loss occurred.” On cross-examination he stated that he meant by the term defective, used in his letter, that there was no wheel on the valve, and that Mr. Raffel attended to repairs. Mr. Raffel’s daughter testified that Mr. Beck called her up “over ’phone” on the 8th of January, 1912, and stated that a water pipe had burst in 21 South Howard street; that she told him that Mr. Raffel was out and asked him to send for Mr. Koethe to make the repairs and he said he would; that she also asked him to report in the afternoon if the repairs had been made; that when her father came in she told him of what she had done and between five and five-thirty she called up Mr. Beck and asked him whether the repairs had been made and that he stated that they had and that everything was alright; that she reported this to her father, and that “it met with his approval.” The weather was very cold, and between the fifth and the thirteenth of January the minimum temperature was between zero and fifteen degrees above zero. On the 8th of January the maximum temperature was thirty-four degrees and the minimum temperature nine degrees above zero, and on the 9th the maximum temperature was thirty degrees and the rm'm'mum temperature fifteen degrees above zero. The injury complained of was due to the freezing of the water in the standpipe which caused the pipe to hurst.

The water flowed from the broken pipe into the defendants’ cellar and then through ⁷⁴ the wall between the defendants’ cellar and the plaintiffs’ cellar into the plaintiffs’ cellar and flooded it to the depth of between ten and fifteen inches, and injured the plaintiffs’ goods to the extent, according to the plaintiffs’ testimony, of about five hundred and forty-six dollars. The plaintiffs further proved that it was their custom during cold weather, in order to avoid injury from the freezing of the water in their pipes, to leave some heat in their building at night, and to turn the water off and drain the standpipe; that when the temperature is below thirty-two degrees the water in pipes located in cold places is apt to freeze,, and that when pipes like the one referred to are located in a cold place the proper and usual precautions against freezing, and injury likely to result therefrom, are to have the pipes covered and to make special provision for turning the water off and draining the pipes. The evidence also shows that the pipe in question was “covered with a felt covering, with canvass on top of the felt;” that no provision was made for turning off the water or draining the pipe, and there is no evidence that either of the defendants made any effort to have the water turned off the evening before the accident. By the lease, under which Mr. Beck occupied the property, and which was dated December 29th, 1908, he rented the first floor of the building for the period of two years, and the entire building for the term of three or five years, as he should elect, from the expiration of the two years term, and therein covenanted to keep the premises in “good order” during said term, and tire lessor reserved the right to use the stairways, hallways and elevator-ways, then erected on said premises and intended to be used as “ways of ingress and egress to and from the entrance at the elevator door in front of said warehouse for the purposes of ingress and egress to and from the respective floors of said building; and the further privilege to enter the above rented premises at any time during the continuance of this lease, or any renewal thereof, for the purpose of making such repairs as he or they may deem necessary, and for the further purpose of regulating and attending to the water meters and ⁷⁵ pipes and heat meters and pipes and applicances thereto belonging or in anywise appertaining.” At the close of the testimony the defendants offered six prayers, all of which were rejected except the fourth, which was granted as modified by the Court.

The first three of these prayers sought to withdraw the case from the jury, first, because there was no1 evidence under the pleadings in the case legally sufficient to entitle the plaintiffs to recover; second, because the uncontradicted evidence showed that the damage to the plaintiffs was caused by the elements over which the defendants had no control, and, third, because the uncontrkdicted evidence showed that the pipe “was caused to burst by the elements over which the defendants had no control”. The prayers offered by the defendant, Baffel, asserted, first, that under the pleadings there was no, evidence legally sufficient to entitle the plaintiffs to recover against him, and, second, that there was no evidence legally sufficient to show that the injury complained of was caused solely by his negligence, and that the vei’dict of the jury should therefore be in his favor. The prayers presented by the defendant, Beck, asked the Court to take the case from the jury, first, because there was no evidence legally sufficient to entitle the plaintiffs to recover against him, and, secondly, because the evidence showed that the defendant, Baffel, retained control of the “regulating and attending to the pipes referred to”. The remaining prayer of the defendant, Beck, presented the proposition that if the jury found that the defendant, Baffel. retained control “of the regulating and attending to the pipes referred to”, then the plaintiffs could not recover against the defendant, Beck.

The first three prayers of the defendants, and the prayers offered by them separately may be disposed of together. The evidence to which we have referred tends to show that the stand pipe in the defendants’ building was'defective because there was no wheel or other appliance attached to the valve by means of which the water could be turned off so as to avoid injury from the freezing of the water and the ⁷⁶ bursting of the pipe; that at the time of the accident the weather was very cold, and that one of the usual precautions against just such injury as the plaintiffs sustained is to turn the water off and drain a pipe like the one referred to in this case; that the defective condition of the stand pipe in the defendants’ building existed at the time