Locke, Inc. v. Sonnenleiter

Hammond, J., delivered the opinion of the Court. The jury returned a verdict for the plaintiff in a personal injury case and the defendants, in this appeal, ⁴⁴⁶ claim (1) that the trial court erred in allowing testimony of prior accidents in which the appliances that caused the damages here were involved; (2) that there was not sufficient evidence of negligence to justify the submission of the case to the jury; and (3) that the testimony as to loss of earnings by the appellee was too vague to form the basis of a verdict other than speculative. All of the errors claimed were properly brought to the attention of the trial court. The appellants objected to the testimony of prior accidents, moved for a directed verdict and made specific objections to those portions of the court’s charge which they thought were erroneous and prejudicial and, finally, after the jury had found against them, moved for a new trial and a judgment N.O.V. The appellants are engaged in the manufacture of insulators.

In this process they use in one room a number of presses, some die presses and others punch presses. Into the latter are fed flat steel bars eighteen to twenty feet long, one and a half inches wide and three-eighths of an inch thick, each weighing between forty and fifty pounds. To enable the bars to be fed into the presses, there are steel racks, or low tables, fifteen to sixteen feet long, adjustable in height and with a top three or four feet wide. The tables or racks have angle iron frames on the top of two scissor jack bases and move about on casters.

The bars are moved in bundles of forty to fifty, a bundle being perhaps a foot high, and are brought to the tables by a hoist on a monorail attached to the ceiling. The intention and the effort is to keep the center of the table under the center of the monorail, so that the bundle of bars will come down onto the middle of the table. Since the table is portable, it would not on occasion be centered under the monorail, in which case men either pushed the table under the load or swung the load to the center of the table. Just prior to the accident, the appellee, who operated his own business as a tool and die maker, was called to the plant of the appellants by their superintendent to make changes and corrections in a die he had made for them.

He ⁴⁴⁷ worked with a Mr. Arnold, an employee of the appellants. While they were checking the trouble with the die, one of the tables or racks, two to two and a half feet behind them, toppled over sideways in their direction and some of the steel bars, which had been on the table, fell upon the appellee’s foot, breaking the big toe. The appellee knew no more of what happened than has been recited. In support of his case, he called Mr. Arnold, who testified that when they began work on the die press, there was on the table a half bundle of bars, which would be some twenty bars, and that Cottman, a fellow workman doing his regular work as the hoist operator, had put another bundle on top of the half bundle just prior to the falling of the table.

He was asked how the bundle was located on the table, and he answered: “* * * on top of the other steel that they had had there” and that all of the steel was on the one side of the table and nothing on the other side. He was then, without objection, asked the following question: “If you put all of the weight on one side of the table, what does it do to it?” and his answer was: “It will topple over”. So far as he knew, nobody except the crane operator was working at or loading the table in the half to three-quarters of an hour that he and the appellee were working on the die press, and during that time the additional bundle of steel was placed as he had testified. Arnold also testified over objection that the table involved in this case, or other tables identical to it, had toppled or buckled before and that he had seen them do so a number of times in the years he had been working in that department, and that the tables either topple over or buckle if too much weight is put on one side.

The rule followed by the majority of the cases is that if the evidence as to past accidents, tendencies or defects is sufficiently relevant and illuminating because there is similarity of time, place and circumstance, it will be admissible — not as direct evidence of negligence but to show the existence of a danger or defect in the character of a place, method or appliance and to show knowledge ⁴⁴⁸ or notice of the danger or defect on the part of the defendant, unless, in its discretion, the trial court believes it will cause an unfair surprise or confusion by raising collaterial issues. Wigmore on Evidence, Third Ed., Vol. 2, Sec. 443-444, 252, 451, 458; McCormick on Evidence, Sec. 167; 65 C. J. S., Negligence, Sec. 234; 128 A. L. R. 595. In Sears, Roebuck & Co. v. Copeland, C. C. A. 4, 110 F. 2d 947 , evidence of a prior accident on faulty steps was held proper. Judge Soper said for the Court that the general rule is “* * * that evidence of this kind is relevant if it relates to an occurrence which happened under substantially the same conditions, at substantially the same place as the accident in suit, and at a time not too remote therefrom. * * * [citing cases].

Such evidence tends to show the dangerous qualities of the thing or place, and knowledge of these qualities on the part of the owner or possessor.” Maryland cases have not been entirely consistent in passing on the question. In Wise v. Ackerman, 76 Md. 375 , the plaintiff, while riding on an open freight elevator, was injured by scantlings or boards in too close proximity to the elevator. It was held that it was improper to admit evidence of a prior similar accident in a similar elevator in the same building. The court held that this evidence could not legally form the basis of an inference of negligence.

The direct holding in the case is that evidence of other similar occurrences is not admissible to prove that the accident occurred by the negligence of the defendant and without the fault of the plaintiff. The Wise case was cited as recently as Smith v. Hercules Co., 204 Md. 379 , where the Court said: “Evidence of other accidents, particularly where the circumstances are not identical, have little probative value and are calculated to prejudice the jury.” (Emphasis ours.) In the Wise case, the Court qualified its decision in this language: “This is not analogous to the case of an attempt to affect a defendant with knowledge of a negligent habit of an employee, as in Elevator Co. v. Neal, 65 Md. 453 , nor to that of a case of a latent defect in machinery, ⁴⁴⁹ or want of repair in a road or bridge, and the simple fact of a former accident is allowed to be proved as means of affecting the defendant with or bringing home to him, knowledge of such supposed negligent habit, or defect or want of repair. But here, the former accident, occurring to the witness, did not happen on the same elevator upon which the plaintiff received his injury, nor did that accident happen under the same condition. The fact, therefore, was wholly collateral.” (Emphasis ours.) In Cordish v. Bloom, 138 Md. 81, 93 , the injury was alleged to have been caused by a defective condition in a cellar door on the pavement that caught the foot of the passerby.

Chief Judge Boyd said for the Court, after referring to Wise v. Ackerman and quoting the language which we have just quoted, that the plaintiff could prove that other accidents had occurred in the same manner so as to bring home notice to the defendant and to show that the accident could have happened as the plaintiff said it did and that such a result would not conflict with what was held in the Wise case. Professor Wigmore, in a note to be found on page 478 of Vol. 2 of the Third Edition of his work on Evidence, found Cordish v. Bloom as “(* * * not expressly disapproving Wise v. Ackerman in rejecting such facts as evidence of condition, but virtually allowing such use of it; why should not the Court frankly acknowledge the correct rule?).” In Hagerstown & Frederick Ry. Co. v. State, 139 Md. 507, 510 , a limb fell from a tree and across an electric wire of the defendant, causing electrification of a fence and the death of a passing boy. It was shown by the testimony that the limb was decayed, that it extended over the highway so that obviously it would strike the wire of the defendant if it fell, that the weather was clear on the day it fell, and that other limbs had fallen under similar circumstances because of decay.

The Court said, in speaking of the evidence relating to other limbs from the tree: “That evidence, in connection with the other evidence we have mentioned, was not only admissible for the purpose of showing that the ⁴⁵⁰ tree was decayed, but also for the purpose of showing that the defendant could, by the exercise of reasonable care, have known of its dangerous condition.” In Morgenstern v. Sheer, 145 Md. 208, 221-2 , a business visitor fell into an elevator shaft by reason of the darkness of the corridor and the unguarded opening. A witness was