Martin G. Imbach, Inc. v. Tate

³⁵¹ Collins, J., delivered the opinion of the Court. This is an appeal from a judgment on a verdict for injuries claimed to have been sustained by the appellee when struck by a falling pier shed. The pertinent facts of the case follow. Mutual Chemical Company owned a pier at the foot of Philpot Street in Baltimore, which was covered by a roof or shed.

This pier had been leased to the Miller Chemical Company, which had been using it for the storage of bags of fertilizer and manure. The appellant, Martin G. Imbach, Inc., entered into a contract with Mutual to remove the roof or shed from the pier because of its bad condition. On May 15, 1951, appellant sent a crew of workmen on a five hundred ton barge carrying a “whirley derrick” and a power winch to tear down the shed pursuant to the contract. William D. Jones was the foreman of this crew and had been employed by the appellant since 1943.

He had worked on the waterfront for twenty-five years doing pile driving work. He had worked under a foreman in taking down the roof on the pier of the Miller Chemical Company in 1922. Apparently this was the only demolition work he had ever done on such a shed. He said the Miller pier was better constructed than the Mutual pier in this case.

Appellant’s superintendent did not go to the scene of the work as he was engaged on another job. He relied on Jones’ judgment as to the proper way to do the work. This was the first time Jones had been sent out with equipment and a “gang” to tear down the roof on a pier or to do work like this. The only instruction Jones received was a paper, given him by the timekeeper, which contained the name of the man he was supposed to see at the Mutual pier.

The barge, 116 feet long, arrived at the pier shortly before noon and was moored on its left side about thirty-five feet from its water end. It was not moored tight against the pier. There were no fender piles or cluster of piles to keep the barge from striking the pier or to decrease the shock produced by ³⁵² the barge striking the side of the pier. The winch was located in the middle of the barge on the side next to the.pier.

The top of the deck of the barge was from eighteen to twenty-four inches above the top of the pier. Jones then went to see a Mr. Rogers, whose name was on the paper. He said he and two other men from his crew walked around and looked at the shed. Jones said the roof was in such bad condition that it would not hold a man.

This shed was erected in sections of “bays”, sixteen feet apart. The sections extended sixteen feet from column to column. These sections, each sixteen feet, covered the entire length of the pier. The sheathing on which the roof was placed was put on without regard to these sections.

The sheathing boards were six or eight inches wide and ran cross-wise. The purlins or horizontal timbers supporting the rafters ran longitudinally. Therefore the roof was not in sections, but constituted one roof over the entire shed. Jones and his crew decided to remove the shed section by section, working from the water end to the shore.

This was to be done by removing the supporting columns of each succeeding section and, if the roof over a section failed to drop, it was to be pressed down by weights. The power for removing the columns was to be applied by a cable running from the power winch on the barge which was manned by Jones. Four men of the crew were put on the pier to attach the cable to the columns. The cable was attached to the first two columns running along the end of the pier, after these had been chopped more than half way through with an axe.

Jones stated that these columns or posts were cut halfway through to lessen the pull. He said: “We were scared of the building in the first place.” He also said that at least one of these columns was loose and was not supporting the roof. He applied the power to the winch. The four men stepped back under the next bay and each of these columns came out easily and fell on the deck of the pier.

The third column, located in the middle, was chopped and the cable attached to it ³⁵³ and the men walked back. Jones said no power had been applied to this third column when the whole roof fell toward the left side of the pier, next to the barge, breaking all of the columns on that side of the pier near the base. The columns on the other side, away from the barge, were all erect. Clarence C. Edward Johnson, an employee of the appellant for approximately five years and one of the men hooking the cable to the third column, said that after the cable was hooked they walked back toward Philpot Street and Jones applied the power to the winch, but the column did not come loose.

The steam was then applied to the winch. The throttle was opened up again to get a stronger pull on the cable. The cable was “snatched” and the whole roof fell down over the whole pier. Trapped under the roof were Johnson and the other three employees of appellant and several of Miller’s employees, including Tate, the appellee here, who had been moving the fertilizer bags out of the shed.

Jones admitted that he had seen at least six men under the shed where the fertilizer bags were located. These bags were located about even with the stern of the barge. Mr. James Halfpenny, foreman for Miller, testified that his superintendent, Mr. Fisher, told him about 12:30 P.M. to go over on the wharf with his five men and gather up the fertilizer material and bring it in because they were going to tear the shed down. He said he and his men received no warning other than the statement by Mr. Fisher that “they were going to tear the shed down”.

Mr. Charles Collison, produced by the defendant, testified that he was president of a wrecking company, which demolished structures and buildings and had been engaged in that work for sixteen years. He saw the pier here in question one week previous to the accident, when he went down to bid on the job of removing this shed. He did not bid on the job because he had no marine equipment. He walked out on the pier and examined the structure as a whole.

He said there were only three methods of taking down a roof on a pier, which ³⁵⁴ is well recognized among wreckers. The first method would be to put a man on the roof and tear it down. The second method would be to bind a section of the roof with cables and then lift it over, and the third method was the method used by the appellant in pulling the supports from under the roof and dropping it in sections. He said he would have used the third method because the roof was so far deteriorated that “you would not put men on it”.

He thought the second method was the most dangerous. He would have expected the roof to fall in bays or sections and would have used the same method used by the appellant. When asked the question, if he had hooked on the support and pulled, and the roof did not come down, would he have given it a harder pull, he answered that he would. When asked whether he would have taken a chance on the whole roof caving in, he answered: “Your Honor, I don’t want to disagree but I do not believe that pulled the roof over.

If it had, your water section of the roof would have turned, it would be twisted. If you were to pull it naturally, it would have a twist of the roof. I have seen a hundred or more fall.” He further said it was common practice for contractors or wreckers to proceed with men working beneath the roof. On cross-examination, he was asked the question: “You remember there were two extra hard pulls with extra steam, take that into consideration, and any other factors, that they were supposed or expected as experts, as they held themselves out, the Imbach Company, when they sent their gang of men down there to the job, take that into consideration, wouldn’t that jar cause the building to shake?” He answered: “Oh, sure, any jar would cause the building to shake.” He said all three methods of wrecking were dangerous and wrecking insurance is the most hazardous insurance written.

The industry is dangerous. When asked: “With people under the roof, of course, you have that element of danger at all times?” He answered: “At all times is ■ right, sir, wherever you start a wrecking job you have that element of danger.” ³⁵⁵ Mr. Henry Hagel, a consulting engineer registered in the States of Maryland and Florida and called as a witness by the defendant, testified that he was a specialist in all types of industrial structures, such as piers. He was sent by the president of appellant corporation to the pier here in question the day after the accident occurred. He said the shed fell toward the “whirley” and in his opinion something had affected the columns on that side which caused the roof to fall because the columns on the remaining side were standing.

When asked his opinion of what caused the roof to fall, he said: “The pier fell toward the derrick; something had struck the bottom of these columns which knocked the lower part in causing the upper part to fall outward and thus dropping the top, the roof, * * *” The Court: “What was that something?” He answered: “That, from the observation of the site, a long derrick is the only thing that could hit this simultaneously and knock the columns down * * *.” He thought the pulling of the third column would not have caused the roof to fall. That, if it had, it would have fallen in a southerly direction, because the columns on the east side were all erect. He said this whirley derrick, which was about eighteen to twenty-four inches above the top of the deck, could hit against the columns. He further said: “A normal procedure is to have piling outside of the pier to protect anything from rubbing against the pier.

On this particular pier there were no fender piles, nor clusters of piles, to prevent anything from breaking against the pier. If you look at most piers they have this particular protection.” The Court: “That is something a person should anticipate is liable to happen that would park a big thing like this along side of the pier.” Witness: “Well, I might say they might and then again you might think of the condition it has been used for a number of years, boats, barges and other things, other vessels alongside of the pier.” He further testified that it was