Spanish American Cork & Specialty Co. v. State Ex Rel. Schneider

⁶⁰⁶ Pattison, J., delivered the opinion of the Court. The appellee, the -widow of William Schneider, brought-suit against the appellant, the Spanish American Cork & Specialty Co., in the Court of Common P'leas of Baltimore City, to recover damages for the death of her husband, resulting, as alleged, from tbe negligence o"f tbe defendant company. William Schneider was, on tbe 27th day of November, 1916, an employee of Eugene I. Rosemfeld & Co., a corporation, engaged in tbe electrical business in tbe City of Baltimore. The defendant, at such time, was engaged in the business of grinding cork at No. 2211 Pennsylvania avenue in said city.

On the said 27th day of November, 1916, .Schneider, at the request of. the defendant, was sent by his employers to defendant’s place of business to remove an old motor and to install a new one to be used in running a machine for - grinding cork. Tbe motor was placed in its position- upon the third floor of defendant’s building and tbe current was turned on, but it was found that the. power w!as not sufficient to run the machine with tire rapidity required of it. After attempting and failing to locate the trouble upon the third floor, he went to the first floor and then to the cellar in search of it. In descending to the cellar, he passed through a, trap-door, which he left open as we gather fromi the record„ although the evidence is somewhat contradictory as to such fact.

He was in Hie cellar but a short while when those upon the first floor, or at least some of them, heard what they described as an explosion which was accompanied by smoke and flames arising from the cellar through the open door. This, they say, was followed by a second explosion, with a puff of smoke and flame. In a very short time thereafter,. Schneider Was seen coming up' from the cellar through said door.

He was eared for and subsequently sent to the hospital, where he died about 12 o’clock that night, from the bums sustained by him. ⁶⁰⁷ The first count of the declaration alleges, that the “defendant, in default of its duly in the premises, did not furnish and provide for its agents and servants, or for the agents and servants of independent contractors rightfully upon said premises and in and about the business of the defendant, a reasonably safe and proper place in which to work, and did expose them to unnecessary risk and danger so that heretofore, to wit, on or about the 27th day of November, 1916, William Schneider * * * died because of burns received as a result of an explosion of inflammable cork-dust, a dangerous substance which was negligently permitted by the defendant to be collected and confined in defendant’s factory in which the deceased, with the knowledge and at the request of the defendant, was engaged in doing some electrical work for and on account of the defendant; and the plaintiff says that the death of said deceased was directely caused by the act, neglect and default of the defendant in the premises, * * * in failing to provide a reasonable safe and proper place in which to do the work aforesaid, and in failing to warn him of the danger in working in said place, although the same was known to the defendant, and not known to the said William Schneider.” The second count of the declaration, after alleging negligence on the part of the defendant in permitting inflammable and explosive cork-dust to accumulate in the cellar of the building, which was. alleged therein to ho unsafe and dangerous to persons, who might be lawfully in said basement or cellar, alleged that William Schneider, “an electrician, employed and engaged in doing some electrical work in and about the premises of the defendant (which said work was being done at the invitation of the defendant and at its request), whilst working in said basement or cellar for the purpose of adjusting a fuse box, having been admitted thereto by the express permission and invitation of the defendant in and about the business and work of tbe defendant, and ⁶⁰⁸ in pursuance of the instructions and orders of the defendant, its agents and servants; being ignorant of the dangerous condition caused by the accumulation of the inflammable and explosive cork-dust under the conditions existing in said cellar, and not having been warned by the defendant to guard against said dangerous condition, although said cork-dust had been caused by the defendant to accumulate so that it permeated and filled the entire cellar and was in that portion through which the said William Schneider had to pass in order to perform his work, of which said conditions the defendant was fully aware and of which said defendant failed to warn the deceased, and the plaintiff says that whilst the said deceased was engaged in adjusting said fuse box located in said cellar, and whilst in the exercise of due care, there was a sudden explosion and combustion of said highly inflammable and combustible cork-dust in said cellar, and the said William Schneider was seriously burned and injured.” To this declaration the defendant pleaded the general issue plea. The trial of the case resulted in a verdict and judgment for the plaintiff. It is from that judgment this appeal is taken. The only exception found in the record is to the ruling, of the Court in its refusal to grant the defendant’s prayer in which it was asked to instruct the jury that the plaintiff had offered no evidence legally sufficient to entitle it to recover, and that the jury be directed to find for the defendant.

The rule to be applied in determining whether evidence in support of the plaintiff’s ease is legally sufficient to be considered by the jury is now well established in this State by the many decisions of this Cburt. A prayer seeking to» take the case from the jury on the alleged ground of the total failure of evidence to support the plaintiff’s case, will not he granted, if there is any evidence, however slight, legally sufficient as tending to prove it, that is to say, competent, pertinent, and coming from a legal ⁶⁰⁹ source; or otherwise stated., a case will not be taken from, the jury upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from wbicb a rational conclusion may be drawn as opposed to the theory of such a prayer; and in considering such evidence, the Court must assume the truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly dedneible from it; and this; though, such evidence be contradicted in every particular by the opposing evidence in the cause. Davis v. Barney, 2 G. & J. 382 ; Maltby v. N. W. Va. R. R. Co., 16 Md. 422 ; Wetherall v. Garrett, 28 Md. 450 ; Wetherall v. Claggett, 28 Md. 465 ; Lyon v. George, 44 Md. 295 ; Odend’hal v. Devlin, 48 Md. 439 ; Fairfax Forest Co. v. Chambers, 75 Md. 604 ; Poe’s Practice, sec. 295a; Jones v. Jones, 45 Md. 144 ; Balto.

Elevator Co. v. Neal, 65 Md. 459 ; Moyer v. Justis, 112 Md. 220 ; Balto. v. Leonard, 129 Md. 621 , and many others. Therefore, in determining whether the evidence offered in this case, in support of the plaintiff’s claim was legally sufficient to go to the jury, we must first assume the truthfulness of such evidence although it be positively contradicted by tbe opposing evidence found in the record. Robert Wills, an employee of the defendant company at the time of the accident, testified that Schneider came to the defendant’s place of business to install the motor, arriving there between 10 and 11 o’clock on the day of the accident. Schneider was not only to install the new motor but he was also to take down the old motor.

To do this he asked witness and other employees of the defendant who were present to help him. This they did, and when the new motor was installed in its position upon the third floor, hei tried to start it. “It ran, but not satisfactorily.” Schneider said, “that is funny,” and stated that he was. going downstairs to see what the trouble was. Tie went to the first! floor and said to Mayol, who it seems was at least in partial charge of the ⁶¹⁰ plant in the absence of the president and manager, Casino Benajan, “I would like to- have a fuse.” Witness at the time was standing nearby, and Mayol said, “I don’t know what you mean,” and Schneider then asked him if he had a candle. Mayol replied, “Yes, I can get you a small candle,” and Schneider after getting the candle asked him, “where is the cellar door,” and Mayol said, “there is the cellar door, right here.” He also asked him where the fuse box was located.

Schneider with witness then went to the cellar through the door pointed out to him by Mayol, and in going down the steps, witness turned on the electric light that was attached to one of the “rafters” in the cellar. He then showed Schneider- the fuse box upon the front wall of the cellar’, which was “near the coal hole with a grate over it,” and then asked Schneider if he needed him further and Schneider said, “no, not just now.” It was then about one minute of twelve o’clock. He then returned to the first floor and there found Knipple and Deavers about to eat their dinner-. He left them and went to his home, two doors away, to get his dinner’, but before going there, Knipple and Deavers suggested to him that he had “better call the electrician up- for dinner.” Hie did so, and Schneider said, “all right, I will b-e up, in a few minutes.” Witness then went to his home and when he got bade the accident had happened.

Upon cross-examination he said he went down the steps of the cellar ahead of Schneider and it was then about five minutes of twelve o’dock. William Deavers, an employee of the defendant, testified that he helped 'Schneider to remove the old motor and to install the new one, that the new motor when started seemed not to run fast enough. It was then quarter to twelve o’clock. Witness then went to the first floor and from there to the cellar to get a bucket of co-al, and as he- came out of the cellar , Schneider and Wills “were on the first floor just about to go into the cellar to see about the fuses, and I heard him ask Mr. Mayol about the fuses in the cellar, and Mayol said, ‘me ⁶¹¹ know no’ about the fuses,.

Bob Wills took Mr. Schneider down into the cellar and stayed awhile and Bob came up, that was about a minute of twelve, when I said, ‘Bob, call the electrician up, it is dinner timie,’ and he said, C told him it was dinner time, and he said all right I will be up in a few minutes.’ So Bob went on to dinner, and I went * * * over alongside of the boiler where it was warm to eat dinner and George Knipple he started towards me with a little bit of coffee in a tin cup,, and I said ‘we’re going to drink a little coffee today,’ and he did not have time to answer me because it sounded as though the cellar door had blown open and a puff came up and then it sounded like another explosion and flames shot up. I hollered to George, there is girls in the front, try to get them out. We were all excited, we could not get past the cellar door, and he and I hollered to the girls and we ran out the back.” They went out a side alley between two houses and around to the front door of the defendant building, and “just as we got there, Mr. Schneider was coming out the door.” He was then asked: “Q’. Did you have occasion to observe his condition when he cante through the front door ?

A. Yes, sir; he was, burned all over. His sweater was practically burned off him and Ms hair—well, you could hardly tell him from colored fellow. I did not know him, when I first seen him.” Witness also stated that “Mr. Mayo! Was running the place at the timie for Mir.

Benajan; he was in New York at the time, and he was a kind of assistant to Mr. Benajan.” George Knipple, also an employee of the defendant company, testified that he helped in getting the new motor in its position on the third floor. His work at the time was on the third floor. After the new motor was installed, he saw Schneider start the motor. “It ran, hut not fast enough.” He then stated that Mayo! ordered it to, be started up; “and the electrician said the motor was not pulling fast enough and did not have enough current.” The witness, after remaining there a few minutes, went downstairs to the first ⁶¹² floor, when presently Schneider came down and stood hack of his machine. • Mayol was at the time working nearby on his tool-bench about five or six feet from him. Schneider remained there a few minutes and started to the cellar with Wills. “It was about ten minutes of twelve when I happened to glance around and see him going to the cellar.

He had a test lamp'—I do not know what it was, hut it had two wires sticking out of his hip- pocket. * * * About two minutes thereafter, I went to eat dinner. * * * I had no more than sat down when there was a. roar like something busted and I jumped up and there was a flame came up