State v. Blumenthal-Kahn Electric Co.

Pattison, J., delivered the opinion of the- Court. This is an appeal from a judgment for the appellees, Sidney O. Blumenthal, Abraham Kahn and Chester W. Snyder, individually, and as copartners trading as Blumonthal-Kahn Electric Company, and Tilghman V. Morgan, Inc., rendered in an action brought against them by the appellant, Mary E. Boznango-, widow of Michael Boznango-, deceased, for the death of the latter, caused, as alleged, by the negligence of the appellees. Michael Boznango was at the time of his death employed as chauffeur by Mr. John M. Requardt, a member of the ⁸⁶ Baltimore bar.'- In addition to his duties as chauffeur, he was, under his employment, required to water the lawn of the premises owned and occupied by his employer. On July 5th, 1930, while watering the lawn, Michael Boznango came in contact with an iron rail of a fence on the lawn in front of the house.

This rail was- electrified, and, as a result of the contact, Michael Boznango was electrocuted. The dwelling house upon the premises mentioned was a new one and had only been occupied by its owner since the 12th day of June, 1930. It had been built by the appellee Tilghman V. Morgan, Inc., under a general contract with Mr. Requardt, which included the electric wiring of the house, but not the installation of the electric fixtures. These were to- be installed by the Blumenthal-Kahn Electric Company under an oral contract made by that company With the owner.

The Morgan Company sublet the work of wiring to be done under the general contract to the Snowman Electric Company. This subcontract, an oral one, embraced all of the electrical work to be done under the general contract, the Morgan Company retaining no supervision over the work to be done by the electric company. The Snowman Company completed all of the electric work which was to be done under the general contract made by the Morgan Company, as claimed by it, on May 27th, 1930. Other electrical work at the building was done by the Snowman Company, but this was not included within the general contract.

They subsequently did some work in connection with the furnace and the electric refrigerator, but this was done independently of the Morgan Company. Included in the work to- be done by the Morgan Company under its contract with Mr. Requardt was the extension of the wiring from the house to the posts or standards at each side of the entrance in front of the house. These wires, when carried to> the standards, were to he inserted in a rigid conduit or pipe, through which they were to run upward to a point at which the electric fixtures were to be attached. Snowman testified that, under the general contract made by the Morgan Company with the owner, the former was to ⁸⁷ carry the wires only to the standards, and that the insertion of the wires in the conduit or pipe could not be done until the character of the piping was determined, and the location of the lantern or fixture upon it established.

The pipe or conduit, as he stated, had to be carried up “through the bottom of the fixture and locked in it,” and it was not until the design and location of the fixture was determined upon that the height of the pipe could be ascertained; if the wires were inserted in the pipe before such time, and they were found to be too- long or too short, they would have to be removed and inserted in a pipe of proper length. Since the wires could not then be inserted in the conduit, the workmen left enough wire to go about one or two feet above the top of the standard and coiled it within the standard, which had an opening- of about ten inches. The end of this wire in each of the standards was clipped with pliers, and the insulation was not peeled back therefrom. Snowman’s electricians left the current turned off, and unscrewed all fuses and turned off all switches, including the switch to the terrace wires.

Robert E. Lee, Mr. Requardt’s butler, a witness called by the plaintiff, testified that these wires were coiled in the standards at the time when Mr. Requardt moved into the house on June 12th. In the certificate of Daniel W. Conway, inspector of electrical installations for the City of Baltimore, dated June 26th, 1930, it is stated that “the electrical work, wires or apparatus as per Application No. 1689, Electric Contractor Snowman Electric Co., occupied or owned by J. Requardt at S. E. St. Paul and Wendover Road — Installation 18 cts 86 outs has been examined and found to be constructed in accordance with Ordinance No. 155, approved June 19, 1908.” On the day of the accident, July 5th, the fixtures on the lawn in front of the house, which were to be designed by Palmer & Lamdin, architects, had not been put in place, although most of the fixtures which were to be installed by Blumenthal-Kahn Electric Company had been installed, and were at the time in use by Mr. Requardt, the owner and ⁸⁸ occupant of the house. As far as the evidence discloses, Blumenthal-Kahn Company, up to the time of the accident, had done nothing towards the installation of these fixtures on the lawn. Robert E. Lee testified that, the day of the accident, BoznangO' was watering the lawn, and, while he was so engaged, the attention of the witness was directed to him.

Boznango at that time was sitting upon the coping or cement, upon which the iron rail or fence was located, and he was, as the witness thought, asleep. Lee placed his hand upon Boznango’s shoulder and called to him to wake up. As he did this he felt an electric shock. Then he went into the house and “threw the switch, turning off the electric current.” On his return to> the scene of the accident he noticed that Boznango was in contact with the iron rail or fence.

Then he observed that a wire was lying across the iron rail and in contact with it. Upon inspection he found that this wire led from the standard at the gate, and the insulation at the end of the wire was peeled back and the wire exposed. Mr. Requardt testified that he at one time saw the wire coiled within the standard; but he further testified that the wire, as he recalled it, was on the lawn or coping when lie moved into the house on June 12th. The time when he saw it coiled within the standard must have been prior to June 12th and after May 27th, when it was there left coiled by the Snowman Electric Company.

At the close of the plaintiff’s testimony, the court, at the request of the defendant Blumenthal-Kahn Electric Company, directed a verdict for that company on the ground that there was no evidence legally sufficient to' entitle the plaintiff to recover against it, and upon the rendition of that verdict' a, judgment was entered for the defendant Blumenthal-Kahn Company. The case then proceeded against the defendant Tilghman "V. Morgan, Inc. At the conclusion of the entire evidence, the plaintiff offered one prayer which was granted. The defendant asked for five instructions. Of these, the first, fourth and fifth were refused, the second granted as offered, ⁸⁹ and the third granted with modifications'.

The plaintiff’s granted prayer was the general prayer as to the measure of damages where the jury finds for the plaintiff. The first prayer of the defendant which was refused asked for a directed verdict in its favor. In substance, the jury were instructed by the defendant’s second prayer that, if they found the defendant Tilghman Y. Morgan, Inc., had, prior1 to the accident, completed the work under the contract with the owner, and the owner had accepted said premises and entered into' occupation thereof, and was occupying the same at the time of the said accident, their verdict should be for the defendant, even though they found the work of the defendant was defectively done in some particular, and even though the jury found that the accident complained of resulted from the defective manner in which the work was done. The third prayer of the defendant as modified was to the effect that, should the jury find that the defendant Tilghman Y. Morgan, Inc., made a contract with the Snowman Electric 'Company to do all the work required under the contract, made by the Morgan Company with the owner of the premises, relating to the electric wiring of the said premises; and that the Snowman Company undertook to do such work in consideration of a stipulated sum to be paid therefor by the Morgan Company; and that in the performance of such work the Snowman Company was “to furnish all materials, do all work, and furnish all labor, necessary or required for the performance of said contract; and * * * that the said Morgan Company did not have or exercise, or reserve under its contract with said Snowman Company, * * * any control as to the methods of performance, or the persons engaged or who' might be engaged by the said Snowman Company to perform the same, or over the engagement of such persons,” then the negligence of the Snowman Electric Company, if any they find, could not be attributed to the defendant Tilghman Y. Morgan, Inc. The plaintiff excepted generally to the rulings of the court in its action upon the second and third prayers of the defend ⁹⁰ ant, and. excepted especially to the defendant’s second prayer, upon the ground that there was “no evidence in the case that the owner accepted the said premises prior to the accident herein sued on.” The verdict of the jury was for the defendant, the Morgan Company, and a judgment was entered on that finding.

An appeal was taken by the plaintiff from the judgments rendered in favor of the defendants. We will first consider the action of the court in directing a verdict for the defendant Blumenthal-Kahn Electric Company. Assuming that this company was to install the fixtures at the top of the standards at the entrance to the lawn, there is no evidence that they did anything at all in an effort to install them at that point, or that they were guilty of any act of negligence in connection therewith. The wires at the time of the accident were not coiled in the standard where the Snowman Company, subcontractor of the defendant the Morgan Company, had put them, but were upon the lawn or coping and in contact with the railing.

But there is nothing to show that they were removed by Blumenthal-Kahn Company, or that they turned on the current. So far as the record discloses we find no negligence of the defendant Blumenthal-Kahn Company from which the injury or loss complained of could have resulted. In the absence of any disclosed negligence on the part of the defendant, the