State Ex Rel. Joyce v. Flanigan

Pearce, J., delivered the opinion of the Court. This is an action brought by the State for the use of the widow and infant children of Peter Joyce, deceased, to recover damages for his death caused by the alleged negligence of the defendants, co-partners, trading as P. Flanigan & Sons. ⁴⁸⁴ The defendants are contractors engaged in laying drainpipes and building sewers, the senior member of the firm having been in that line of work in Baltimore City for twenty-three years, and the deceased was a laborer in their employment,’ and at the time of his death was assisting in excavating a trench for a sewer near the corner of Maryland avenue and Twenty-Eighth street in said city. The declaration alleges that “while engaged in the conduct of his said employment, the said Joyce, on or about the 19th day of September, 1907, in obedience to the directions and orders of the defendants, descended into said pit and was thereupon overcome by certain noxious or poisonous gases accumulated in the bottom of said pit, in consequence of which he died on the day aforesaid.” It further "alleges that “the defendants knew, or by the exercise of ordinary care ought to have known of the presence of said poisonous gases in said pit, and of the risks and dangers attendant thereon, but the said Joyce had no knowledge or means of knowledge of the same; that the defendants negligently and wrongfully failed to ascertain the presence of said gases, or to take any steps to remove the same before sending said Joyce into said pit, and negligently failed to give any notice or warning to said Joyce of the presence and danger of encountering said gases; and that said Joyce used all due care and prudence on his part, and that his death was wholly due to the negligence of the defendants, without any want of care on his part.” There were fourteen exceptions during the course of the trial to the rulings of the Court upon questions of evidence, and at the close of the testimony on both sides the Court instructed the jury that under the pleadings in the case there was no evidence legally sufficient to entitle the plaintiff to recover and that their verdict must be for the defendants upon the issues joined. The fifteenth exception was taken to this ruling, and the appeal is from the judgment entered on the verdict for the defendants.

George Zimmerman, inspector of drains in the Engineer’s Department of Baltimore City, testified that the appellees ⁴⁸⁵ applied for and received' a permit to lay a 20-inch drain-pipe from St. Josephs House of Industry to the conduit of Sum-waits lane and- 29th street; that they started on September 13th, 1901, to dig through the bed of 29th street to tap the sewer under this street, and that on the morning of September 19th, the work had so far progressed that the opening in the street was 23 feet 6 inch deep, 8 feet 6 inch long, and 4 feet G inches wide; that it was his duty to inspect such work, and that he did so for that purpose twice each day; that he was there on the morning of September 19th about 9.30 and that the inspection .disclosed the same condition as the day before, except that the opening was a little deeper, and that it was 25 feet from the surface of the street to the arch of tho sewer to be tapped; that there was nothing but rain water in the opening, and no connection had then been made -with St. Josephs House of Industry. The accident occurred about 8 A. M., September 19th. There were three platforms in the excavation, constructed to pass the earth from one to another in removing it from the excavation, and these platforms were also used to get into and out of the pit. Two of these platforms were on one side and one on the other; one near the top on the west side, the second lower down on the east side, and the third still lower on the west side.

Charles Jordan, foreman of the gang, testified that about 7.30 on the morning of the accident, the planks with which the hole was covered for safety during the night, were removed, and the men prepared to go down to work; that he had other men at work nearby, and he himself was with them about 200 feet from this hole; that in a few minutes after the removal of the planks covering the hole, someone called out that something was wrong with Joyce in the hole; that he immediately ran, and jumped from one platform to another to the bottom of the opening where Joyce was lying on the earth, with Glick and Smith, two of the gang, trying to get Joyce out, and' he endeavored to help them; that in half a minute Smith dropped also and Glick let go and came out of the pit; that he held on longer but was also forced to let go ⁴⁸⁶ and eomé out and that Joyce and Smith were both dead when taken out a little later; that he neither smelled nor tasted anything while in the pit, but that his legs became weak, and gave way, and everything turned black, but-he did not know what caused this..- Joseph Semone and Thomas Bums, bystanders, bravely volunteered-to attempt the rescue of Joyce and Smith, and Semone was first lowered by a rope and was brought up with the body of Joyce, and Burns in like manner was lowered and brought up' with- the body of Smith. Semone testified, that while in the pit' “he had no feeling at all; the air in the pit just took charge of him; it just went through him, just took' all the feeling out of him; that the thing which had affected him, -he would "call foul air accumulated from garbage that was dumped there; that he had known the locality for five years, and that the soil through which this hole was dug was. garbage and -collection of the street ashes and such stuff as that on the bottom, and that he had seen it filled in. . • Burns testified that he felt “the same sensation as anyone had who caught hold of electricity and had it go through you; that he did not smell anything because he had a handkerchief tied over his nose, and that he had no taste in his mouth from the substance, whatever it was.” ' Charles Jones who was working' nearby for the Peoples Sewer Contracting ‘ Company bear’d the cry that there was something.wrong in this pit, and he tried to go down to the rescue, but when he got to the second platform “everything turned blue and he crawled out; that he smelled nothing, but had a taste in his mouth, and felt himself becoming weak’; * * * that he knew the locality all his life; that the soil is just a bed of garbage, ashes and street dirt.” Sergeant Boone of the Police Force, knew the locality for 35 years. He said, “the character of the soil is ashes, rubbish, paper, etc.” He said he was present when the bodies were drawn out, and he smelled a foul odor, part like garbage but not like dead animals or rotten eggs or anything of- that sort.” ⁴⁸⁷ • Officer Warner of the Police Eorce, who was also present when the bodies were removed, said that he smelled' a bad. odor, but did not know what it was; that it smelled like a dump, just the same as a dump smells when there is something burning on it. Amos Albaugh testified that he had known the locality for thirty-five years and that it was a dumping ground; that “the soil was principally ashes, a fill of ashes.” Mr. Theobald, Inspector of the Storm Water Division of the Sewerage Commission, who constructed a trap manhole-right beside this opening in July, 1908, said, “the soil was almost entirely ashes,” ‘and when asked if there was any garbage or ordinary dumping, said: “It looked like ordinary dumpage.” He also testified that he had been engaged in work of that character for fifteen years previous, and that during that period he had only twice worked- in soil of the character under consideration; once in the construction of the manhole just mentioned, and again at the Mount Poyal Pumping Station, where the soil was composed of “ashes, old shoes, tin cans and glass.” He did not state when this last work was done, but presumably after this accident, since that occurred September 19th, 190?, and he stated that he. was not with the Sewerage Commission until about September 1st, 190?, and that work was done for the Commission.

Dr. Penniman, an analytical chemist, and Mr. Ezra B. Whitman, a specialist in chemistry and biological analyst of'water fluids testified that the decomposition of garbage, containing vegetable matter, when in contact with air, produces carbon dioxide, commonly known as carbonic acid gas which will not support combustion, is much heavier than air, and sinks to the lowest accessible level, and when present in quantities ranging from three to ten per cent, the atmosphere is fatal or dangerous to human life. - Dr. Penniman testified that he had no personal experience whatever as to earth gases in made ground, and that his experience was from reading upon the composition of air; that he was familiar with the gases given out by the decomposi ⁴⁸⁸ tion of vegetable matter ordinarily found in garbage, but that if be were told' “a large amount of garbage, including vegetable matter, ashes, and cinders had been dumped in a certain place for six or seven years,” he could not say positively what gases would be formed, and don’t think any one else could from that description; he could only say what he would expect.” Mr. Whitman said he had occasion to study the effect of decomposed garbage and the chemical changes that took place, for the City of Boanoke, Virginia, -but his knowledge was derived from reading authorities only and not from personal experience or observation, and that the authorities agree that the principal gas emanating from decaying garbage is carbon dioxide. He also said that the carbonacious matter in garbage would be more rapidly reduced when the soil was exposed to' the air by being opened, than if the soil were undisturbed. Mr. Oharles E. Phelps, Chief Engineer of the Electrical Commission of Baltimore, said he had considerable experience in the excavation of underground conduits in the City of Baltimore, though not in the suburbs, and that he had some observation of the effect of carbon dioxide upon workmen, or of such gases as are somtimes formed in excavations. Being asked if he had ever had occasion to provide for taking care of carbon dioxide in the excavations made under his direction in the city, he replied: “Using the term gas to include all of those gases found in such excavations, I would have to divide the answer into two parts, one covering the work after it is completed as represented by a manhole in the street, to which I answer: Yes; the other part, to the actual construction, I answer, Ho.” The above is a condensation of all the testimony admitted for the plaintiff.

Edward L. Elanigan, one of the defendants testified that he was present at the work there every day except Sunday until the day of the accident, and was there at four o’clock the afternoon before the accident;' that he never observed any gas in the pit and there was no complaint of it from any of ⁴⁸⁹ the men. at work, and that he had no reason to suspect its presence there; that they had previously made excavations in similar soil on numerous occasions, and never knew or heard of the presence of gas in them, and he named five different places within the city limits where they had excavated to the depth of twenty feet, where the land was all filled the same as in this case and the character of the soil thus made identical, and on cross-examination he said he made no provision for removing gas from the pit, as he had no reason to believe there would be any to remove. Charles Jordan, defendants’ foreman testified that the work was in progress September 13th, 14th, 16th, 17th and 18th, every day continuously except Sunday, and they came back to work on the 19th when the accident occurred, and during all that time there was no gas present; that on the afternoon of the 18th, the day before the accident, a workman reported that he felt the culvert with the crowbar, whereupon the witness went into the pit with a lantern which he set down on the ground, and discovered that it was not the top of the culvert, but a stone, which the crowbar had struck, and that he took the lantern down because he could not see well in the bottom of the pit without a light. He also said that he had been defendants’ foreman for seventeen years engaged in similar work, and that they covered the pit at night to guard against persons or teams getting into it. Patrick Flanigan, the other defendant testified that the firm had been doing work of this character for twenty-three years; that he knew the locality which had been a ravine “filled with ashes just the same as numerus fills around town, and that he had many times made even deeper excavations in similar soil.

Being asked if this particular locality was used as a garbage dump, he replied: “It was the same as the York road where Gilmore’s houses are built, and those at Patterson Park. It is a general dump, the garbage taken from it, the garbage is supposed to be collected separately and deposited at other dumps, such as Caroline street and Bidgely street, and this other place on the class, it is known as an ash dump, ⁴⁹⁰ not a garbage dump” and that “he had no idea gas would he.encountered in such a ditch as that.” The above summarizes the testimony for the defendants, and we will now briefly summarize the testimony offered for the plaintiff and excluded. (1) Semone was asked what he saw in the pit to enable any. one to get out of it. • (2) Theobald, when testifying about the trap manhole which he constructed in July, 1908, alongside of this pit, was asked if he encountered any gas in the course of that work. . . (3) After stating that during the fifteen years he had been engaged in excavating work, he had only encountered gas in two places, he was asked if he encountered gas at the Mount Royal excavation which he had already testified he made in similar soil, plaintiff’s counsel stating they proposed to show that contractors meet with such conditions and provide for them.

(4) The same witness was further asked, “do you yourself take means to eliminate such gases as are met with in similar places” and can you tell what is generally done by others in that line of work ?” (5) The same witness was then asked “can you say as the result of your experience in the two places mentioned what the effect of such gases- is upon the human system ?” .(6) The same witness was further asked what, apart from his observation, he had heard that enabled him to say what would be done by others in his line of work. (7) Mr. Penniman was asked, assuming that this excavation was made “in soil composed of ashes, cinders, garbage refuse and debris deposited by garbage collectors to fill up the land,” whether there would he likely to he found there any definite chemical gases, and if so, what? This was objected to, and he was then asked if his experience and knowledge of chemistry was such as to qualify him to answer the previous question, which was also objected to. The witness repliéd he had no personal experience at all in the formation ⁴⁹¹ of gases in the earth, or in a pit dug in the earth, but was derived from reading upon the composition of air, and the Court then sustained the objection to both questions.

(8) This witness, after stating he was familiar with gases given out in Vegetable decomposition, was asked to state what, he would expect (as the result of his knowledge), as to the formation of gas in such soil as it was testified 'there was where this excavation was made. (9) The same witness was then asked, given the character of soil and excavation testified to for plaintiff, where carbon dioxide might be found, where would such gas accumulate. ■(10) Mr. Whitman was asked whether in a garbage dump 25 feet deep the decomposition producing carbon dioxide progresses uniformly throughout, or more rapidly in one part than in another. - - (11) He was then asked whether in such a dump the decomposition would be completed throughout in six or seven year's, or so far completed as no longer to give off carbon dioxide. (12) He was further asked whether of his own knowledge there was any way, and if so, what, to disperse such gas in such a pit. (13) Mr. Phelps, after stating, as heretofore shown, that he had no experience as to the formation of gases during actual excavation in course of construction, but only in the electrical-conduits completed and in use, was asked whether there was “any effective way of dispersing or preventing the accumulation of dioxide gas in dangerous quantities in excavation work.” (14) And lastly (referring to the witness’ previous statement that he spoke of gas as including all gases found in' excavations such as he had charge of), he was asked the same question “as to any gases emanating from the soil in excavation work.” As to the first exception, the proffered