Frenkil v. Johnson

Parke, J., delivered the opinion of the Court. The plaintiff was driving an automobile southward on St. Paul Street, in Baltimore, at about a quarter to nine o’clock on the morning of September 22nd, 1937. He was the first of a line of automobiles in the same lane of travel, which were stopped by a traffic signal light at the intersection of St. Paul Street with Lexington Street. The defendant was engaged at the time in the demolition and removal of an old building which was built to the inner street paving lines at the northwest intersection of the streets.

Almost as quickly as the plaintiff’s sedan stopped, an explosion took place within the remaining walls of the building. There was first a terrific noise and crash, and then a precipitation of debris which was hurled into St. Paul Street and beyond its eastern boundary line. Some of the flying glass and material was driven by the force of the explosion against and into the sedan, and inflicted slight cuts upon the plaintiff and damaged the automobile. For these injuries the plaintiff brought suit against the defendant, and recovered a judgment, from which this appeal is taken.

The defendant and his servants were in possession of the premises where the explosion occurred. The front part faced on Lexington Street and was a three-story brick ⁵⁹⁷ building with cellar, and a one-story brick building in the rear on St. Paul Street. The defendant had begun the work on September 13th, when the interior partitions and doors were removed, as were the windows of the second and third stories. The actual wrecking operations continued from the fourth day.

The rear one-story portion of the building on St. Paul Street had been taken down to the level of the ground and the roof of the main building, which fronted on Lexington Street, had been removed at the time of the explosion on the ninth day of their labor. No scaffolding had been built. Five men and a foreman were the workers. The method employed was to work down from the top of the outer walls by prizing loose the bricks with an iron pinch-bar, and placing them on the floor where they were at work, so that later they could be shot down to the ground in a chute which had been built back of the building.

As the mortar was broken and the bricks were prized, masses of bricks, about a foot square, to the number of from 18 to 20, would occasionally fall outside and drop a distance of some 40 feet to the cement pavement on St. Paul Street, within the section of the sidewalk which had been roped off to prevent its use by pedestrians. Some 28 inches below the surface of the pavement where these blocks of bricks, after dropping, struck the sidewalk, two service pipes, of 1% inches in diameter and about 15 feet apart, led from a 6 or 8 inch main, which ran north and south, under the St. Paul Street pavement, at the same depth as the service pipes and 15 feet distant from the eastern wall of the building. From this main and through the service pipes illuminating gas was delivered, through meters to the occupants of the building. The men employed in razing the building would work at the top of the building and throughout the premises wherever and whenever there was occasion for them to go in tearing down the walls, cleaning and piling on the ground the bricks and other material, and doing whatever else was necessary in the performance of their jobs.

There is testimony tending to show that servants of the ⁵⁹⁸ defendant detected the escape of illuminating gas on the premises when the work of razing was begun, and reported the condition to their employer several times before the gas company sent a man to investigate. He removed the gas meters, and plugged the service pipes at their openings in the cellar and left. Nothing else was done by the gas company, but gas continued to enter the building in the cellar, and to spread throughout the structure, and its presence in the building was made known to the defendant by its odor, which was smelled by his servants while they were engaged in the gradual demolition of the building. The explosive quality of illuminating gas and its effect upon consciousness and life are generally known.

The windows and doors of the cellar and first floor of the building had not been removed. All that was necessary for an explosion was a lighted match, cigarette, or cigar, carelessly dropped or thrown where gas was confined. Even a spark from a casually struck piece of brick, stone, or metal, or from an electric wire, would have been sufficient. These perils are familiar, but there is testimony tending to show that the defendant ignored them, and neither investigated the cause nor made any effort to abate the constant danger which was present until it culminated in the explosion.

At the time of the accident, five of the workmen were on the third floor and the sixth was on the first floor, but it does not appear what he was doing there. He was knocked down, his clothing set on fire, and he was burned. The glass of the windows on the first floor was shattered and scattered, and this workman went out through one of the windows on St. Paul Street. The testimony was to the effect that the gas did not escape by any-defect in the closing of the ends of the two service pipes, but entered the cellar through the stone foundation wall along St. Paul Street on either side of a service pipe.

After the explosion the gas was escaping from a large leak in one of the old, corroded, service pipes, near its connection with the gas main, and, also, from an apparently new, longitudinal break in the main. The points of escape were about fifteen feet distant from the cellar wall. ⁵⁹⁹ The gas company was not shown to be negligent in its . removal of the meters, but its alleged default was in the care and maintenance of its gas pipes and main under the public way, some fifteen feet outside the building line. See Brady v. Consolidated Gas Co., 85 Md. 637, 642 , 37 A. 263 . If there be neglect of the gas company in the escape of the gas, which found its way into the cellar of the building, the conduct of the defendant, after the gas was discovered to be flowing into the building, if negligent, and such negligence should be, either independently or jointly in union with that of the gas company, the proximate cause of an injury to a third person, in the exercise of due care, the defendant would be liable to the third party in an action of tort.

Within certain limitations the general principle of law is that one must use his own rights and property so as to do no injury to those of others. West Virginia Central & P. R. Co. v. Fuller, 96 Md. 652, 667-669 , 54 A. 669 ; Scott v. Bay, 3 Md. 431, 446 ; Baltimore & P. R. Co. v. Reaney, 42 Md. 117, 130 ; Green v. Shoemaker & Co., 111 Md. 69 , 73 A. 688 ; Bonaparte v. Wiseman, 89 Md. 12, 22 , 42 A. 918 . Thus the occupier of premises is under the duty not to injure the travelers upon the public streets adjacent to the premises, and if, during such occupancy, and because of the negligence of the occupier, an explosion occurs on the premises, and thereby debris of the building occupied is driven into the public street and, in the use of the highway, a person and the automobile, in which he is traveling thereon in the exercise of reasonable care and diligence, are struck and injured by such debris, the occupier is liable for such injuries. Havre de Grace v. Fletcher, 112 Md. 562, 569, 570 , 77 A. 114 ; Weilbacher v. Putts Co., 123 Md. 249, 255 , 91 A. 343 ; Pindell v. Rubenstein, 139 Md. 567, 578-581 , 115 A. 859 ; Ver-Vac Bottling Co. v. Hinson, 147 Md. 267, 272, 273 , 128 A. 48 .

See Baltimore Breweries’ Co. v. Ranstead, 78 Md. 501, 508, 509 , 28 A. 273 ; Philadelphia, B. & W. R. Co. v. Mitchell, 107 Md. 600, 605 , 69 A. 422 ; Annapolis Gas & Electric Light Co. v. Fredericks, 112 Md. 449 , 77 A. 53 . Should, ⁶⁰⁰ however, the explosion be of illuminating artificial gas which had invaded the premises through the neglect or unauthorized interference of a third person, so that what was otherwise safe became dangerous, the occupier is not liable until he knew or, in the exercise of reasonable prudence and diligence, should have known, of the altered and dangerous condition, and continues it after such knowledge is so acquired or imputed. Halsbury’s Laws of England (2nd Ed.) vol. 23, pp. 621, 622; Restatement of the Law of Torts, vol. 2, sec. 364 (c), p. 987, sec. 368, p. 996; Cooley on Torts (3rd Ed.), pp. 123, 124; Hunt v. Lowell Gas Light Co., 1 Allen, Mass. 343; Bartlett v. Boston Gas Light Co., 117 Mass. 533, 538 ; Pollock on Torts, (8th Ed.) 437-439; Clifford v. Atlantic Cotton Mills, 146 Mass. 47 , 15 N. E. 84 . And see generally, for valuable annotations, 25 A. L. R. 262-304; 47 A. L. R. 488-494; 90 A. L. R. 1082-1108.

Hence, after the occupier or possessor knows or should know of the danger of the artificial condition of the premises to others outside the land, and fails to exercise reasonable care and diligence to make the condition reasonably safe, either by removing the danger, or by giving adequate warning, or by using other effective safeguards, the occupant or possessor becomes liable to persons outside the land for injuries which are the proximate result of such artificial conditions. Supra; and see Consolidated Gas Co. v. Crocker, 82 Md. 113, 122, 123-125 , 33 A. 423 ; Brady v. Consolidated Gas Co., 85 Md. 637, 642-644 , 37 A. 263 ; Consolidated Gas Co. v. Connor, 114 Md. 140, 151, 152 , 78 A. 725 ; Chesapeake & Pot. Tel. Co. v. Miller, 144 Md. 645, 652 , 125 A. 436 ; Tri-State Engineering Co. v. Graham, 158 Md. 328, 331, 332 , 148 A. 439 ; Baltimore Asphalt Block, etc. Co. v. Klopper, 152 Md. 529, 532, 533 , 137 A. 347 ; Burke v. Baltimore City, 127 Md. 554, 561, 562, 96 A. 693 ; Pollock on Torts (8th Ed.) pp. 515-520; Elliott on Roads and Streets (3rd Ed.) secs. 905-910.

There is testimony on this record from which the jury could find that the gas meters were removed on September 16th, and that from that date until the explosion on ⁶⁰¹ September 22nd the defendant knew that free gas continued to flow into the building. Furthermore, after its removal of the meters and closing the interior ends of the service pipes, the gas company was not informed that the escape of gas into the building was not stopped, nor did the defendant take any action to prevent the danger. Nor did the defendant discontinue his tearing down of the building, but persisted in his work without precautionary measures. The perils of explosion and fire from the accumulation of free illuminating gas in the building under demolition were obvious and known to the defendant for such a length of time as to make it a question for the jury whether the defendant, after he knew of the dangerous condition of the premises to others without the land, had not failed to use reasonable care and diligence to prevent injuries by explosion to travelers upon the adjoining public streets.

The fact that, after the explosion, the source of the flow of the gas into the cellar was ascertained within a few hours, and the escape of the gas immediately and completely stopped, is sufficient testimony to carry to the jury the decision of the question of whether the defendant had adequate time in which to act before the explosion to make the premises reasonably safe for travelers in the normal use of the contiguous streets. Consolidated Gas Co. v. Getty, 96 Md. 683, 685, 686 , 54 A. 660 ; Consolidated Gas Co. v. Connor, 114 Md. 140, 151, 152 , 78 A. 725 ; Mose v. Hastings Gas Co., 4 Fost. & F. 324, 176 Eng. Reprint 584. See Consolidated Gas Co. v. Crocker, 82 Md. 113, 123-125 , 33 A. 423 ; Brady v. Consolidated Gas Co., 85 Md. 637, 642 , 37 A. 263 .

If the jury should find the facts as stated, the defendant kept on the premises a dangerous condition and perilous to travelers in the heart of a populous city at the intersection of much used municipal streets. The potential dangers of the maintenance of such a condition were at the risk of the defendant, and not of the traveler upon the public street in its rightful use, without any reason to anticipate danger from an explosion within a ⁶⁰² dismantled building. Should injury befall the traveler because of the realization of the potential danger, it is sufficient for the traveler’s recovery to establish the existence and nature of the dangerous situation and that Ms injury was the direct and natural consequence and development of the negligence of defendant in maintaining such a condition. Such testimony would establish that the injury had been inflicted during the period of defendant’s negligence and as a consequence of its inherently dangerous existence.

The breach of duty owed by the defendant to the traveler on the highway was the former’s failure to use the premises of which he was then in the exclusive possession with that degree of care and diligence which an ordinarily prudent man would, under similar conditions, have reasonably exercised, so as to prevent the dangerous state of the premises to become the proximate cause of injury to a traveler in the lawful and careful use of an adjacent municipal highway. ' Although the dangerous condition of the premises in the possession of the defendant was created by the escape of gas from the mains and service pipes of the gas company without the defendant’s consent, the proximate cause of the accident, so far as the defendant is concerned, was the presence on the premises of the free gas, because of the failure of the defendant to take reasonable care to make the condition reasonably safe after he knew of it. If the gas had not been there the explosion could not have occurred. Consolidated Gas Co. v. Getty, 96 Md. 683, 690 , 54 A. 660 . Thus, it becomes immaterial for the plaintiff to prove the particular manner whereby the free illuminating gas exploded.