Heim v. Roberts

Pattison, J., delivered the opinion of the Court. The suit in this case was instituted to recover for personal injuries received by the infant appellee, on the afternoon of July, 29th, 1918, while walking south on the sidewalk on Caroline street, near Dock street, in Baltimore, and in front of the premises of the appellant, the defendant below. The action was brought not only against Louis Heim but also against Frank Myers; W. E'. Keen & Company, a body corporate; W. Frank Keen and John A. Schad, co-partners, trading as W. F. Keen & Company, and the Mayor and City Council of Baltimore.

The declaration alleges that while the infant plaintiff 1 “was passing a stack or pile of lumber which had been placed on the sidewalk or on the street next to said sidewalk, a piece or pieces of said lumber was caused and procured to fall, and in falling did strike the said infant plaintiff, causing him to sustain serious and permanent injuries about the head, body and limbs, as a result of which he has suffered and must continue to suffer great physical pain and mental anguish, and has been otherwise injured and damaged, and the said infant plaintiff says that his said injuries were directly caused by the negligence and want of care of each of the defendants as hereinafter set forth, and without ⁶⁰² negligence or want of care on His part directly thereunto contributing; that the lumber aforesaid was piled by the defendant, Frank Myers, in so careless and negligent a manner as to cause it to fall as aforesaid; that the said Frank Myers was then and there the agent or servant of the defendant, W. F. Keen & Company, a body corporate, and the defendants, W. Frank Keen and John A. Schad, co-partners, trading as W. F. Keen & Company, acting within the scope of his authority and in the course of his employment; that the defendant, Louis Heim, was in possession of the premises in front of which said lumber was piled as aforesaid, and that he directed or knowingly permitted the said lumber to be piled as aforesaid, althougji he knew or, in the exercise of ordinary care, ought to have known that the piling of said lumber in the place aforesaid rendered the said sidewalk dangerous for persons having occasion rightfully to use the same.; that the defendant, the Mayor and City Council of Baltimore City, is a municipal corporation duly incorporated, and it is its duty to keep its streets and sidewalks in a reasonably safe condition for pedestrians having occasion rightfully to use the same; that at the time of the happening of the wrongs and injuries hereinabove set forth, and for some time prior thereto, the said Mayor and City Council of Baltimore City knowingly, frequently and regularly permitted lumber to be piled on or near the sidewalk of Caroline street, near Dock street; that the piling of lumber as aforesaid rendered the said sidewalk dangerous for persons having occasion rightfully to use the same.” It seems that Frank Myers was never summoned; and the •ease was dismissed by the plaintiff as to W. Frank Keen and John A. Schad, copartners, trading as W. F. Keen & Co., .and the Mayor and City Council of Baltimore. The case then proceeded to trial against the remaining defendants, •and at the conclusion of the plaintiff’s testimony, the defend.ant, W. F. Keen & Company, a body corporate, offered a ⁶⁰³ prayer asking the Court to instruct the jury that under the pleadings there was no legally sufficient evidence to entitle the plaintiff to recover against it. This prayer was granted and a verdict was rendered in its favor. The defendant, Heim, asked for a similar instruction, which was refused him.

To which ruling of the Court, he excepted and declined to offer any testimony on his behalf. The Court thereupon granted what are designated as the plaintiff’s first and third prayers. The first was granted as offered and the third granted as modified by the Court. The defendant offered one other prayer, known as his second prayer, which was also-refused.

The defendant thereupon excepted generally to the granting of the plaintiff’s prayers and to the refusal of his prayers. The verdict of the jury was in favor of the plaintiff and upon that verdict a judgment was entered against the defendant and he has taken this appeal. There are hut three exceptions found in the record, one upon the admission of evidence and two upon the prayers. We will first consider the rulings of the Court on the prayers.

The defendant’s first prayer asked the Court to instruct the jury that under the pleadings in the case there is no legally sufficient evidence to entitle the plaintiff to recover against the defendant. The pile of lumber referred to in the declaration was located upon the sidewalk in front of defendant’s mill, which was upon the building line of the street or immediately upon the inner edge of the sidewalk. The outer edge of the lumber was six or eight inches from the curb and extended four or five feet towards the building line, leaving a space of eight or ten feet between it and defendant’s building. The lumber, which was piled to the- height of four or five feet, was as stated by Frank Myers, the party who p-iled it, “sixteen feet long and two inches on one side and six inches on the other.” He further stated that he was directed by the de ⁶⁰⁴ fendant to pile the lumber upon the sidewalk or pavement, where he placed it.

The infant plaintiff, a boy of seven or eight years of age. with his companion, James Kiehne, ten years of age, was returning. to his home from the moving picture show, about five o’clock in the afternoon. At that time a storm was coming up and he was hurrying home to avoid it. When he reached a point between the lumber and the building of the ■defendant, pieces of the lumber fell upon him, inflicting the 'injuries complained of. Both he and his companion saw the lumber when it slipped from its position on the pile immediately before it fell, but at that time, as Kiehne expresses it, they were between the lumber and the building, the plaintiff between him and the lumber, and it was then too1 late “to get out of the way of it.” The first prayer of the defendant was asked for because ■of the position taken by him that the evidence offered did not tend to show the negligence of the defendant, as alleged in the declaration, which resulted in the accident complained •of.

The negligence charged against the defendant, which is the gravamen of the action, is that he, being in possession of the premises in front of which the lumber was piled, “directed, or knowingly permitted it to be piled, as aforesaid/’ that is, “in so careless and negligent a manner as to cause it to fall,” “although he knew or, in 'the exercise of ordinary ■care, ought to have known that the piling of said lumber in the place aforesaid rendered the said sidewalk dangerous for pei*sons having occasions rightfully to use the same.” As was said by this Court in Howser v. Cumberland & P. R. R. Co., 80 Md. 148 , “whilst the general rule xxndoubtedly is, that the burden of proof that the injury resulted from negligence oxx the part of the defendant, is upon the plaintiff, yet in some cases, /the very nature of the action may, of itself, axxd through the presumptioxx it- carries, supply the requisite proof.’ Wharton on Negligence, par. 421. Thus when the circumstances are of such a nature that it may be ⁶⁰⁵ fairly inferred from them that the reasonable probability is that the action was occasioned by tbe failure of tbe appellee to exercise proper caution which it readily could and sho-uld have done; and in the absence of a satisfactory explanation on the part of the defendant a presumption of negligence arises against it.” Byrne v. Boadle, 2 Hurl & C. 722. In these cases, the doctrine of res ipsa loquitur applies. This doctrine as defined by the late Chief Justice McSherry in Strasburger v. Vogel, 103 Md. 89 , “is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident.” In cases to which the doctrine applies, the plaintiff is. relieved of the burden of proving negligence on the part of the defendant, which is ordinarily required of him in other cases.

In such cases “an inference of negligence in lieu of direct proof of negligence, may he deduced from all the circumstances attendant upon and surrounding an accident, if the injury results from a condition or event not only in its very nature destructive of the safety of persons or property, hut also so wrongful in its quality as to permit, at least primarily, no inference except that of negligence on the part of the person controlling the injurious agency.” Strasburger v. Yogel, supra. In the ease last cited, the plaintiff was injured by a falling brick from tbe chimney of the house in the possession of the defendant. In that case J uixie McShebiiv said, “if the chimney was in a condition of repair and if no independent agency intervened, the bricks would not have fallen; and if no other fact had appeared in the case reflecting’ upon or accounting for their falling, the mere fact that they fell was a sufficient circumstance