Mergenthaler v. Kirby

Fowler, J., delivered the opinion of the Court. ¹⁸³ The defendant is a manufacturer of typesetting machines, and his factory is located in Baltimore city, about six hundred feet south of Port Avenue, and about half that distance from the' southern extremity of Burroughs street. On the east and west of the factory for several hundred yards there are open lots or commons. The nearest house is one block distant, at the foot of Burroughs street. To the south are the Baltimore and Ohio Rail Road tracks and the river.

It is apparent from this description that the defendant’s factory is not in a built up or densely populated, part of the city. Howard Kirby, a boy about twelve years old, together with two companions, aged respectively fourteen and sixteen, went upon the premises just mentioned, without the authority or knowledge of the defendant or of any of his agents or employés, for the purpose of getting type metal or lead scrap, which was in a box near the factory wall, which metal had a value of eight cents per pound, and had been placed there by the defendant’s orders. His employés had directions always to pick over the contents of this box and to save the metal for use in the factory. One of the boys testified that he had before sold the lead and scrap to a junk dealer, and intended to make the same disposition of what he secured or expected to secure the day Kirby was injured.

While the boys were thus engaged in trespassing on the defendant’s premises and purloining his property, the engineer in charge of the engine “blew the boiler off to ease the pressure on it for reasons of safety.” Of course, it is not suggested that there was any intention of injuring the boys, for their presence was unknown to the engineer. But while they were standing between the scrap box and the end of the pipe, the water and steam rushed out, and the boy Kirby was unfortunately scalded. However, if instead of running as he did, between the mouth of the pipe and the wall of the factory, he had passed on the other side, he ¹⁸⁴ would have been uninjured. The defendant testified that “ there was room enough between the box and the coal-bins for the boys to run behind the pipe instead of in front of it, if they had chosen to do so.” The evidence is that the pipe came out from under the south wall of the engine room, and ran southerly under ground about fifteen feet alongside of and four or five feet from the west wall of the factory.

A joint or elbow about three feet long was screwed on the end of the pipe and tilted over at an angle towards the wall of the factory. The factory yard, in which the pipe' was located, was enclosed on three sides by the engine room, the factory and the coal-bins. The defendant was sued by the father of the injured boy to recover damages arising from injury to his son, and for the amount expended for medicines and medical attention. Several prayers were offered on both sides, but the controlling question is whether in any aspect of the case, as presented, the plaintiff was entitled to a verdict.

The jury found in favor of the plaintiff, and the defendant has appealed. In our opinion the case should have been taken from the jury. One of the fundamental rules governing all cases of this kind is that the plaintiff cannot recover unless he establishes “ a right on his part, a duty on the part of the defendant in respect to that right, and a breach of that duty by the defendant, whereby the plaintiff has suffered injury.” Maenner vs. Carroll et al., 46 Md.,212. In the case just cited, the plaintiff, as here, was a trespasser, and “having no right to be on the lot, the injury which he suffered by falling into an excavation,” the Court held, “ must be attributed exclusively to his own fault.” As we understand the contention of the appellee it is, that it was a neglect or breach of duty on the part of the defendant to use the pipe in question as it was used, for the purpose of emptying