Stewart & Co. v. Harman

Worthington, J., delivered the opinion of the Court. This is a suit by an employee against his employer, to recover damages for an injury which the former sustained while engaged in the performance of his duties. The defendant is a mercantile corporation carrying on business in the building at the northeast corner of Howard and Lexington streets in Baltimore City. Plaintiff was, at the time of the accident complained of, employed by the defendant to make himself generally useful on the fourth floor of its place of business.

Some of his duties were to clean furniture, to help carry out furniture, and, more to the point so far as this suit is concerned, to open in the morning and close in the evening, the windows of that floor. The plaiutiff testified that he had performed this duty every day during the five or six months of his employment there. These windows were large, their dimensions being six by eight feet, each containing a single pane of heavy plate glass from about three-eighths to one-half an inch in thickness. The windows were opened and closed by means of fixed pivots, one at the top and one at the bottom of the window frame.

There was also attached to the bottom of each window frame a device for controlling the window and holding it open or shut, or at any angle desired. It is not deemed necessary for the purposes of this case to minutely describe this device, as there is no contention that it was not in good condition. On the afternoon of June 4th, 1906, the plaintiff had just closed one of these windows, when in an instant a great many fragments of broken glass from the pane in that window fell upon the backs of his hands, cutting and injuring him severely. ⁴⁴⁸ . The manner in .which the accident happened is briefly described by the plaintiff'as. follows: .

Q. Will you describe to the jury how you closed that window? A. It works on a pivot in the middle, and you had to push; the window closed very readily. I had the window closed and my left hand was resting on the sill and I was in the act of pulling down the blinds with the right hand and like a flash, I should judge about one thousand pieces came out and struck me here (indicating the backs of his hands). Q. Did the glass fall outward or inward?

A. Some fell outward and some fell inward. ■ This was all the evidence offered by the plaintiff as to the manner in which the accident happened, and as he was, at the time of the accident, hidden from view by some furniture in the room, no one but himself saw how it happened, though another employee of the defendant, a Mr. Gregg, a floor walker, who had charge of the room, testified that he could see the top of-the window at the time it was closed; that the window closed rapidly, with a bang, and then he heard a terrible smash of glass. He said he examined the window immediately after the accident and found the window glass broken out with the exception of some large pieces adhering to the beading around the edge. He also testified that as far as he could see the strips or beads which held the glass in the window sash, were in perfect condition. The defendant proved very satisfactorily that the window in question had been properly constructed, and the plantiff does not, on his. part, seriously contend that the window was not so constructed in the first place, but does contend that it was not maintained in a reasonably safe condition and that therefore, for its alleged failure so to maintain this window, the defendant is chargeable with negligence.

In what respect it was not maintained in a safe condition was not shown, and no evidence, except the fact' of the breaking of the window under the circumstances above narrated, was adduced to prove any defect therein, unless the testimony of Mrs. Harman, plaintiff’s wife, to the effect that a few days after the accident ⁴⁴⁹ she was standing on the street and saw Mr. Kauffman, the glazier, putting new strips around the window; and the testimony of two other witnesses to the effect that when they examined the window some time after the accident, they found the strips had been changed since the original construction, might be so considered. The evidence of Mrs. Harman as to what occurred several days after the accident does not prove or fairly tend to prove any defect in the window at the time the accident happened. These strips or beads, to which she referred, were used to secure the glass in the sash after it had been set in the rabbet, and were fastened to the sash from the outside. Possibly the old strips were broken or injured in removing the fragments of glass that adhered to the sides of the sash after the accident happened.

Possibly they were broken while being removed, preparatory to putting in a new glass. When the question at issue is the liability of defendant for the alleged faulty construction or improper maintenance of an appliance, evidence of events transpiring after the happening of the accident is usually inadmissible. Columbia v. Hawthorne, 144 U. S. 405 ; Ziehm v. Electric Light, etc., Co., 104 Md. 48 . We think therefore that as this evidence was objected to, it should have been excluded, but as the defendant upon cross-examination, elicited evidence to the same effect, the ruling of the trial Court in this regard furnishes no reversible error.

Leffler v. Allard, 18 Md. 545 . In the view that we take of the case, however, we do not consider this evidence important. The defendant showed that the windows in the building had been in the first instance properly constructed by a competent builder; that such construction was a safe one; that the glass • was good plate glass of glazing quality, and that the beading used to hold the glass in the sash was of the usual size and sufficient to make a good construction. Mr. Grim, a carpenter employed by the defendant, testified that he boarded up the opening the afternoon after the glass ⁴⁵⁰ was broken out, and that the beads that held the glass in the window were in proper condition, no part of them being moved out of the way.

Mr. Gregg, floor walker for defendant testified, that he went, to the window immediately after the accident and found the window glass broken out with the exception of some large pieces adhering to the beading around the edge, and that as far as he could see the beading seemed to be in perfect condition, he did not see where any of it was gone. Mr. Kaufman, the glazier, who put the glass in the sash when the building was originally constructed eight or nine years- before, testified that he put a new glass in the window after the accident and that when he went there for that purpose he found the beads and everything all right, except that the glass was gone. This witness also testified that the beading originally put on the window to hold in the glass was five-eighths of an inch and that when he went there to put in the new glass he found the beading to be seven-eighths of an inch. The witness, Morrow, also testified that the beading which ■held the glass in place was five-eighths by three quarters.

On cross-examination this witness stated that the beading at the time of the trial was larger than that orignally used for the purpose of securing the glass. When the larger beading was put on the window did not appear, except from the testimony of Mrs. Harman as above stated. The only evidence in the case therefore to show that the window was in any respect defective on the day that the accident happened, is the inference to be - drawn from the testimony that beading slightly different from that used in the original construction, was put in the window after the accident. This inference is rebutted by the direct testimony of two witnesses who examined the window immediately after the accident happened, and who stated that the beading was then in good condition.

But assuming that there was sufficient evidence of a defective beading at the time of the accident, to justify submitting that question to the jury, what evidence is there that such de ⁴⁵¹ fective beading caused or in any way contributed to the accident and injury? How was the beading defective? How did such defect, if any, contribute to the accident? Even if we assume that some defect in the beading did in some unexplained manner contribute to the accident, still where is the evidence legally sufficient to show that the defendant did not use due and reasonable care to maintain the window in a safe condition?

In order to recover in this case it is incumbent on the plaintiff to show not only how the accident happened, but also that the defendant was remiss in respect to some matter which caused the accident. Buswell Person. Inj., 111 A. The master’s liability, if any liability attaches at all, depends altogether upon a breach by him of some imposed duty. Now the law imposes upon the master the duty toward his servant of exercising due and reasonable care to provide and maintain.proper and safe materials and appliances with which the servant may perform his work, but a master is not an insurer of his servant’s safety.

Wood v. Heiges, 83 Md. 269 . When the servant engages to perform certain services for compensation, it is implied as part of the