Treusch v. Kamke ex rel. Kamke

Stone, J., delivered the opinion of the Court. This is an action brought by Caroline Kamke against Charles Treusch for a personal tort. The declaration charges that the defendant, Treusch, was possessed of a lot of ground in the City of Baltimore, and that he erected on his lot a warehouse, hut that the building was so carelessly, unskilfully, and negligently put up, and with such insufficient and improper materials, that in consequence thereof the building suddenly fell, and in falling seriously injured the plaintiff, Caroline. The defendant demurred to the declaration, hut the demurrer was overruled, and the defendant then pleaded not guilty, and the case was tried by a jury, and the verdict and judgment being against the defendant, he has appealed.

The ruling of the Court upon the demurrer is open for review in this Court, as well as the exceptions taken at the trial. There were two exceptions taken at the trial — the first to the admissibility of certain evidence,' and the second to the refusal of the Court to grant the instructions asked for by the defendant, as well as to the instructions that were given by the Court. We will first dispose of these exceptions, and afterwards of the demurrer. The exception as to the admissibility of the evidence is one of trivial importance.

The plaintiff had given in evidence that the house had fallen on Sunday morning, and then had proved by Gintling, a carpenter, that he examined the ruins on the Wednesday following, and went on to prove by him the thickness of the walls of the fallen house, and in the course of his examination, Gintling said that a part of the roof had been taken away before he got there ; the plaintiff then asked the witness, “ Where was the roof of the building when you arrived there ?” ²⁸¹ To this question the defendant objected, but the Court overruled the objection, and in so doing committed no error. The whole object of the testimony of Grintling was to show the cause of the fall of the house. The location and position of the different parts of the debris after the accident was proper to go to the jury, and might have enlightened them to some extent as to the cause of the accident. The length of time that had elapsed between the time of the accident and the examination of Grintling, may have weakened the force of the evidence, if there was any particular force in it, but the jury were entitled to know its position, as it might have given them some information, even if but little; the evidence was therefore admissible.

The second exception involves the instructions asked for by tho appellant, and which were refused by the Court;- and also those actually granted. The appellant offered a number of prayers, nineteen in all; but if the instructions given by the Court stated the whole law of the case correctly, it was all that the appellant could rightfully ask, and it will not be necessary to refer specifically to his rejected prayers; except, perhaps, to one of them. This one prayer of the appellant, and upon which he laid great stress, asked the Court to instruct the jury that there was no legally sufficient evidence before them upon which the plaintiff could recover. This the Court below properly refused to do, as we think there was evidence sufficient to go to the jury.

Before the Court will take a case away from the jury, it must be satisfied that the evidence is so light and inconclusive that no rational mind could infer from it the fact sought to be established. The fact of the fall itself was at least prima facie evidence of improper construction, and entitled the plaintiff to call upon the defendant to explain it to the satisfaction of a jury. The declaration, as we have before stated, was for an injury alleged to have been suffered by the plaintiff from the fall of a house of the defendant, which she alleges was ²⁸² so carelessly and improperly put up, that it in fact was a nuisance, and that its fall was owing to its defective construction. The defendant, on the other hand, insists that the house was properly built, and with all reasonable care, and that its fall was caused by a severe and unusual storm.

It is evident that the real point at issue, between plaintiff and defendant, was whether ordinary care and skill was used in the erection of this building, and that a building that could not stand the usual winds that prevail in this latitude, cannot, in the nature of things, he erected with ordinary care or skill, and the owner is justly liable for the injury that may he occasioned by its fall, provided he knew, or by the exercise of reasonable diligence on his part, might have known of its condition. But on the other hand, if its fall was due, not to imperfect construction, hut to the extraordinary and unusual force of a wind storm, then the owner could not he held to he in fault, and it was the exclusive province of the