Henry Pierson & Sons v. Gohr

Boyd, 0. J., delivered the opinion of the Court. This action was originally against Harry A. Brown and these appellants, and a verdict was rendered against them for $350.00. Each of them made a motion for a new trial and the motion was granted as to Henry Pierson & Sons and overruled as to Brown.

A judgment was entered against Brown on that verdict, but no question is presented by the record as to that. The case was re-tried against Henry Pierson & Sons, and a verdict for $500.00 was rendered against them. This appeal is from a judgment entered on that verdict. ³⁹² One exception was taken to the action of the lower Court in reference to the admissibility of evidence and another to the rulings on the prayers. The Court granted the three prayers offered by the plaintiff, with some modifications, and granted, as modified, the fifth and tenth, and rejected the first, second, third, fourth, sixth, seventh, eighth and ninth prayers offered by the defendants.

It also overruled some special exceptions filed by the defendants to the plaintiff’s second prayer. ■ The appellants concede that if they are liable at all, the verdict is not unreasonable in amount, but they contend that there was no evidence of actionable negligence on their part, and that if the accident was the result of negligence, it was that of Harry A. Brown, or his agents, who was according to the appellants’ contention an independent contractor and they claim they were therefore not responsible for the injury complained of. The appellants had a contract for the erection of a building on the northwest corner of Aliceanna and Spring streets in the City óf Baltimore. They made a verbal contract with Brown by which he was to furnish the labor to lay the bricks in the building at a stipulated sum per thousand. He furnished and paid the liodcarriers, the bricklayers and the men for the hoisting machine, as well as the machine itself, which was used to hoist the bricks to the upper stories.

He erected the bricklayers’ scaffold and a “run-way” from the hoist to the scaffold. A wheelbarrow which will be spoken of was also furnished by him. The appellants furnished the bricks and all materials, including the lumber used in the scaffold and run-way. They paid Brown every Friday for the bricks laid, and he paid his men.

It was a three-story brick building, and at the time of the accident the bricklayers were working on the third story. There were wooden joists in the building, and there was a platform against the wall, on which the bricklayers worked. There is some difference in the statements of the witnesses about the width of the platform, but that is not material. ³⁹³ The plaintiff was driving a wagon for Mr. Langaman, who was in the hanling business. On the day of the accident he was hauling brick to' the appellants at this building, and had been hauling them there about two weeks.

He said that at the time of the injury he drove into the building on Aliceanna street, and was about fifty feet from the entrance when he was injured. The pile of bricks at which he was about to unload was in the first story, under the scaffolding in the third story. He tossed the "bricks from the front of the wagon to the man who> was piling them. "While he was doing so, he heard something coming through the joists—some bricks struck the horses and they gave a plunge.

Just as he grabbed for the lines, some bricks struck him and knocked him under the horses. According to the evidence he was injured severely. The hoisting machine was about midway of the building, and the hodcarriers wheeled the bricks in wheel-barrows, went up the hoist and then wheeled them from the hoist to the platform, where the bricklayers were at work, on a runway which was of the width of two hoards. Some boards were first laid across the joists, and the run-way was laid on them, as it ran in the same direction as the joists.

William Carr was taking a load of bricks on the run-way from the "hoist to the bricklayers. He said he thought it was about forty feet from the hoist to the scaffold, and when he was about half-way a brick fell off the wheel-barrow, got over the wheel and threw the barrow over. He was on the third floor, and a number of bricks fell between the joists on the third and second floors down to the first, where plaintiff was injured. Carr said he did not know how many went down, but there might have been twenty or thirty.

One of the plaintiff’s witnesses said he could see from the third floor to the first, through the joists, and another said he could see from the first floor up to the sky. The evidence is conflicting as to how much of that floor was covered over—the appellants claiming that all of it that could be was covered, but they admitted that there was what they called a well open, to ³⁹⁴ take timber through, and some timbers were lifted between the joists. The appellee’s witnesses testified that it was open all the way up, above where plaintiff was working, excepting-where it was covered by the joists, the platform and run-way. The plaintiff said he had first piled bricks he hauled to that building on Spring street, and then had orders to go inside, that “Mr. Pierson told me how to do it, and I had been putting them in that particular place about a week.

On the first load I took inside, I told Mr. Pierson that that place v;as dangerous for a man to get underneath there and work,, and he said ‘never mind, go ahead.’ I thought it was dangerous because there was nothing up- at the top to stop' anything from falling down only the joists and anything would' go right straight through those.” The appellants rely on that statement to show contributory negligence, and it will be as well to consider that at once. They offered a prayer (the fourth) “that it appears from the uncontradieted evidence in this case that the injuries to the plaintiff were caused by his failure to exercise such care and caution for his own safety as is ordinarily exercised by prudent persons under similar circumstances, and that their verdict should therefore be for the defendants,” etc. But in the first place, such can not be said to be the uncontradicted evidence. Both of the defendants, their foreman and Mr. Brown testified that the floor was covered over as well as it could be while the work was going on, and Mr. Pierson denied the statement of the-plaintiff. Moreover, it would be a harsh rule to announce as a matter of law that the plaintiff, who was only twenty years of age, must'be deprived of his right.to recover on the ground of contributory negligence because he continued to work there, although Mr. Pierson, an experienced builder, told him to “go ahead,” and a number of men were working there.

The plaintiff said, “Ed. Moore (boss hod-carrier) was there, and a whole lot of other men were coming up to-the wagon to get brick to send up-stairs.” The plaintiff was not an employee of the defendants, and hence no question of assumed risk was involved. To grant that prayer would ³⁹⁵ be equivalent to holding that laboring men and mechanics could not recover, if they worked in a building where they thought there was danger of something falling on them and injuring them. In our judgment it was properly rejected. Before we consider what we regard as the most important question in the case we will pass on the objection presented by the first bill of exceptions.

John F. Nichols testified he was a journeyman carpenter, had been in the “carpentry business since 1896 or 1897. That is the only business I know. I have worked on all kinds of buildings, little and big, everything in the way of carpentry business; I have done all branches of the carpentry business. I have been in Baltimore Oity since 1904.” He said-he was at the building-while it was under construction, but he had not paid much attention to it.

He had heard the testimony of the previous witness, how the joists were laid. He was then asked the question: “In your experience, and during the time that you worked on buildings where they are laying down joists, as they did in this case, on the third floor, for instance, is there any practice among builders fi> make any provision for covering and protecting people about the building ?” That was objected to, and the objection being overruled, he answered: “The practice among builders is to cover those joists over.” He then went on to say: “This is done to protect the people who are walking underneath, to and from the mechanics and bricklayers. The practice is generally to cover with 1 by 12 by 16 boards. The practice does not extend to the entire opening, the whole floor. * * * The elevator opening is always open.

Sometimes a carpenter has to walk through there or something like that, and it has got to be protected. As in this case where they were hauling material in, that is supposed to be protected, too.” We think it was admissible to prove the practice of builders in such cases. All of the jurors could not be expected to know what the custom was, and while proof that certain precautions were or were not usually taken in such cases would not be conclusive, it would reflect upon the question of ³⁹⁶ care and tend to show what could reasonably be done for the protection of those having the right to be in the building. In Weilbacher v. Putts Co., 123 Md., on page 257, comment was made by Judge Thomas on the fact that there was no evidence to show that it was a common occurrence for a painter to fall from a suspended stage (which caused the injury to the appellant while passing on the pavement), “or that it was customary to erect guards or covers over sidewalks above which men are engaged in painting a building from a suspended stage, or to ‘rope’ the street, so as to prevent persons from using the sidewalk during the progress of the work.” He referred to affirmative proof that had been offered, to show the contrary.

Moreover, some of the most important evidence of this witness on the subject was apparently introduced without objection, but regardless of that, and without discussing it further, we are of the opinion that there was no reversible error in the ruling presented by that exception. The defense mainly relied on by the appellants was that the injury was caused by the negligence of Brown, or his. servants, if it was the result of negligence at all, and that he was an independent contractor, and hence they were not responsible for his negligence. The rule as announced in Deford v. State, use of Keyser, 30 Md. 179 , on page 203, has often been since applied. It was there held that, “the rule of ‘respondeat superior’ does not apply where the party employed to do the work, in the course of which the injury occurs, is a contractor, pursuing an independent employment. and, by the terms of the contract, is free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, exclusive of the control and direction, in this respect, of the party for whom the work is being done.

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