Weilbacher v. J. W. Putts Co.

Thomas, J., delivered the opinion of the Court. This suit was brought to recover for injuries alleged to have been caused by the negligence of the J. W. Putts Company, a corporation, the defendant below and appellee in this Court, and as the case was withdrawn from the jury at the close of the plaintiff’s testimony on the ground that there was no “evidence in the case legally sufficient to entitle the ²⁵² plaintiff to recover under the pleadings,” it will be necessary to refer to the pleadings and evidence. The declaration contained three counts, each one of which was demurred to. The Court below overruled the demurrers to the first and third counts and sustained the demurrer to the second count.

The second count was amended, and the case was tried on the issues joined on the first, third and amended second counts with the result stated. The first count alleges that the defendant was, on the 25 th of September, 1911, the owner and in possession of the store and premises on the northwest corner of Park avenue and Lexington street, two of the public streets of Baltimore City, and, for the purpose of repairing and painting the building, caused “a large ladder or scaffold to be suspended from the roof of said building, over and above the sidewalk along said building on Park avenue, in a negligent and unskillful manner in that the defendant, its servants and agents, neglected to make said scaffold fast by proper guy lines,” and that, as a result of such neglect, the ladder or scaffold slipped-and one of the defendant’s servants, who was working on the ladder, was precepitated to the sidewalk, and, in falling, struck the plaintiff, who was passing along the sidewalk, and seriously and' permanently injured her. The amended second count charges that the injury to the plaintiff was caused by the negligence of the defendant, “its agents and servants, in erecting, using and operating said ladder or scaffold in that the defendant, its agents and servants in charge thereof negligently failed and omitted to properly fasten said ladder or scaffold with guy lines,” by reason of which negligence the defendant’s servant “slipped and fell from said ladder” to the sidewalk and struck the plaintiff. The third count avers that the defendant caused the íadder or scaffold to be suspended from the roof of the building over and above the sidewalk for the purpose of painting the building; that the erection and'use of the ladder or scaffold ²⁵³ “endangered the travel” on the sidewalk and that it became the duty of the defendant to “guard said work” and sidewalk for the protection and safety of persons using the sidewalk, which the defendant failed to do, and that by reason of said failure on the part of the defendant the plaintiff, while-passing along the sidewalk, “was struck by the defendant’s servant in falling from said ladder” and seriously injured.

It appears from the evidence in the case that the appellee owned and, was conducting a store in the building on the northwest corner of Park avenue and Lexington street, two of tho public* streets of Baltimore City, and in August, 1911,. contracted with Crooks, Zick & Co. for the painting of the* outside or exterior wood and metal work of the building:. (’rooks, Zick & Co-, submitted, in writing, a. bid for the work, on the 21-th of August, and the bid was accepted by the-defendant verbally. The building was six stories high, and the painting was done in the usual way from a “stage” or scaffold about twenty-four by thirty feiet long (which resembles a ladder in a horizontal position with hoards on it), suspended on the outside of the building above the sidewalk by ropes fastened to each end of the stage and attached to L- • shaped hooks, which wore hooked to the cornice of the building and kept in place by guy lines extending over the roof and tied to a chimney. On the day of the accident, Zick, a. member of tho firm of Crooks, Zick & Co., the contractors, and two employees of the firm were engaged in doing the painting.

After working in the morning they changed the position of the stage, so that at the time of the accident the stage was at the top of the fourth floor of the building', just outside of and about on a level with the cornice of a hay window which extended beyond the building line and over the sidewalk. Zick and one of the employees of the firm were on the stage, and Zick was kneeling with one knee on tho stage and the other knee on the top of the bay window, when the rope slipped, one end of the stage was slightly lowered, and Zick lost his balance and fell to the sidewalk. The ²⁵⁴ man on the stage with Zick did not fall nor did anything fall from the stage, and the other employee of Crooks, Zick & Co., who was painting from the cornice above, testified that the lowering of one end of the stage, which caused Zick to lose his balance, was due to the fact that the guy rope was “not tied tight enough,” that is, it was not taut, and that as soon as it was “stretched tight enough” the stage stopped; that shortly before the accident he was on the roof of the building and noticed that the guy line was not “tied tight enough,” and that when he went down he told Mr. Zick so. In falling from the stage Zick struck the plaintiff’s foot as she was walking along the sidewalk and seriously injured her.

The evidence further shows that the stage extended beyond the building line and over the sidewalk; that the defendant knew of the position of the stage and did not erect any barrier on the street or “rope the street off” to prevent persons walking on the pavement under the stage; that defendant did not employ the men engaged in painting the building, had nothing to do with the methods used in the performance of the work, did not'exercise any control “over the appliances, methods or men used or engaged in the work,” and that the appliances belonged to Crooks, Zick & Co. As we have said, the case was withdrawn from the jury at the close of the testimony offered by the plaintiff, so that in iwiewing that ruling we are dealing with the case as presented by the pleadings and the plaintiff’s evidence. The first and amended second counts of the declaration declare that the injury complained of was caused by the negligence of the defendant’s servants in failing to make the stage or scaffold fast by “proper guy lines,” and in neglecting to “properly fasten” the scaffold -“with guy lines.” The evidence shows that the accident was, as alleged, due to the fact ■ that the guy lines were not properly fastened or, as the witness expressed it, were not “tied tight enough,” but it also shows that the work was not done by the defendant but by Crooks, Zick & Co., who contracted to do it and furnish ²⁵⁵ the appliances and employed the labor for that purpose, and that the defendant did not have supervision of the work or any control over the men engaged in it. The negligence ot which the plaintiff complains in the first two counts was not, therefore, the negligence of the defendant or its servants, hut the negligence of the servants of an independent contractor, for which the defendant is not liable, unless the injury to the plaintiff resulted from its disregard or neglect of some duty that it owed to her and other persons using the sidewalk on which she was injured. Deford v. State, use of Keyser, 30 Md. 179 ; City & S. Ry.

Co. v. Moores, 80 Md. 348 ; Smith v. Benick, 87 Md. 610 ; Decola v. Cowan, 102 Md. 551 ; P., B. & W. R. R. Co. v. Mitchell, 107 Md. 600 . The free and unobstructed use of the public streets is a right that belongs to the public, and it is the duty of those owning and occupying property abutting on a highway to so use their property and keep it in repair as not to endanger the public while in the exercise of that right. If, therefore, an abutting owner causes a nuisance to he erected on his property and injury to a person using the street follows as the result of the existence of the nuisance, the owner is not absolved from liability because of the fact that ho employed an independent contractor to do the work. In other words, if the injury be caused by the thing contracted to he done, the owner is responsible, but he is not liable for the negligence of the employees of the contractor in a matter collateral to the contract.

Again, the person for whom work is done will be liable when the injury is such as might have been anticipated by him; as the probable consequence of the work, and he failed to take the proper precaution to prevent it, or where it results from his neglect to discharge a duty that he ow'es to third persons or the public in the execution of the work. Tn Deford’s Case, according to the evidence offered by the plaintiff, the wall on the defendant’s property, fronting on a public street, was erected in such a defective and dangerous ²⁵⁶ manner that it constituted a nuisance, and Judge Alvey said: “If this be so, it (the wall) constituted a nuisance, for which the defendant would be liable. And the fact that the wall was erected by others, under contract, and to whom he did not bear the relation of master, will not excuse him; for, as was said by Loed Campbell in Ellis v. Gas Consumers’ Co., 2 E. & B. 767, it is a proposition absolutely untenable that in no case can a man be responsible for the act of a person with whom he has made a contract. If the contractor does the thing which he is employed to do, the employer is responsible for that thing as if he did it himself.” Judge Alvey then adopts the statement of Baeobt Wilde in Hole v. R. R. Co., 6 Hurl. & Nor. 488: “The distinction appears to me to be that, when work is being done under a contract, if an accident happens, and an injury is caused by negligence in a matter entirely collateral to a contarct, the liability turns on the question whether the relation of master and servant exists.” In City & S. Ry.

Co. v. Moores supra, the the Court speaking through Judge Boyd, said: “Even if the relation of principal and agent, or master and servant, do not, strictly speaking, exist, yet the person for whom the work was done may still be liable if the injury is such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work.” In Mitchell’s Case the late Judge Schmuckeb, after referring to Deford’s Case and others, said: “As a result of. these cases it may now be said to be settled in this State that although, when the work is being done by an independent contractor, the employer will not be liable for an injury caused by negligence in a matter collateral to a contract, he will be liable if the injury be caused by the thing contracted to be done, or if it be such as might have been anticipated, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it.” ²⁵⁷ And in the case of Baltimore v. O'Donnell, 53 Md. 110 , where the appellee was injured by reason of the fact that there was no light nor signal to warn persons of the dangerous condition of the street;, the Court held that the primary obligation was upon the city to keep the street in a safe condition, and that it comd not commit that duty to a contractor so as to avoid liability for injury resulting from a failure to maintain a proper warning of danger. Aow applying these well-established rules to the facts of this case, it is apparent that the plaintiff, much as-her painful and serious injury is to be regretted, is not entitled, to recover from the defendant unless we are to hold that the suspension of the stage or scaffold above the sidewalk was such a menace to the safety of those using the street as to amount to a nuisance, or that the injury was one that might have been anticipated by the defendant, as a probable consequence of having its building painted from a suspended stage or scaffold. The evidence shows that the work was done in the usual way in which buildings located on public streets are painted; that the stage or scaffold was a good one, and that the accident was due entirely to the negligence of the servant of Crooks, Ziek & Go. in not tieing the guy line tight enough. There was no evidence to show that it was a common occurrence for painter to fall from a suspended stage, or that it was customary to erect guards or covers over sidewalks above which men are engaged in painting a building from a suspended stage, or to “rope” the street so as to' prevent persons from using the sidewalk during the progress of the work.

On the contrary, the only evidence reflecting upon this feature of the case was the testimony of the witness, Israel, who was engaged in painting the building at the time of the accident, and who testified that he had had forty-three years’ experience in such work and that he had never seen a man fall from a painter’s stage, and had never seen a stage fall lo the sidewalk ; that it was not necessary as a general thing ²⁵⁸ to erect barriers to prevent people from walking under the stage, and that after tbe accident be went back to work and used tbe same stage and same guy lines, and tbe testimony of James L. Thomas, who stated that he was a member of a firm engaged in house painting and decorating, and that the firm employed from twenty-five to sixty-five men; that he had been engaged in the business for thirty-three years, and that he had seen one man fall from a scaffold but had never seen a painter fall from a swinging scaffold. This evidence not only, tends to show that the suspended stage was not a nuistance, but also shows that there was no reason why the defendant should have anticipated or provided against injury to persons using the sidewalk. In Deford’s Case the plaintiff- was injured by the falling of the wall of a house which was in course of erection by an independent contractor for Deford. There was no suggestion in that case that the erection of a building fronting on the sidewalk of a public street was a nuisance, but Deford’s liability was based by the Court upon the evidence that the particular wall in question was constructed in such a dangerous and defective manner that it became and was a nuisance.

And in Decola’s Case the plaintiff was injured by a brick that fell from a house which Cowan, the contractor, was erecting for and on the property of the Uorth Baltimore Construction Company. The suit was abandoned as to the owner of the property, and this Court said that there was no evidence in the case to make the company liable for the injury. The Court could not have decided as it did in those case® if the erection of a house fronting on the sidewalk of a public street is a nuisance, yet it is a matter of common knowledge that the erection of such buildings is attended with some ñsh, and that appliances extending over and above the sidewalk are employed in the execution of the work. In the case of Boomer v. Wilbur et al., 176 Mass. 482 , 57 N. E. 1004 , the owner of a house employed a contractor to repair a chimney, and the plaintiff was injured by the falling of a brick ²⁵⁹ during the performance of the contract.

The Court there said: “The instructions to the jury allowed them to find a verdict for the plaintiff * * * upon the ground that the work of repair called for by the contract was necessarily a nuisance, within the rule stated in Woodman v. Railroad Company, ubi supra, aud other similar cases. The work called for was the repair of chimneys. At most, the brick were to be taken off for a few feet and relaid. The work which was to be done was not such as would necessarily endanger persons in the street.

It did not involve throwing the brick into the street, or causing or allowing them to fall so as to endanger persons traveling' therein. It is plain that, unless there was negligence 'in the actual handling of the brick, there could be no injury to the passing traveler. * * * This is not a case where the work, if properly done, creates a peril, unless guarded against as in the cases relied upon by the plaintiff. The accident was caused by the act of the contractor in doing what it was not necessary for him to do., what he was not expected to do, and what he did not intend to do. If it had been necessary for him to topple the chimney over into the street, or to remove the bricks by letting them fall into it, or the contract had contemplated such action, the instructions would not have been objectionable; but, as this was not necessary or intended, the work could not be classed as work which, if properly done, was ordinarily attended with danger to the public.

The negligence, if any, was in the mere detail of the work. The contract did not contemplate such negligence, and the negligent party as the only one to be held.” In the case of Laffery v. Gypsum Co., 83 Kansas, 349, the Court, after referring to the general rule which exempts the employer from liability where the work is done by an independent contractor, and to the exception to that rule in cases where the work is intrinsically dangerous, however skillfully performed, said: “Ko effort will be made to define precisely the expressions ‘intrinsically dangerous’ or ‘inherently dangerous,’ or like phraseology, as used in the ²⁶⁰ authorities. Regard must be had to the reason of the principle and the consequences flowing from its application in the given situation. The mere liability to injury from doing the work cannot be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they ai’e not specially hazardous.” After stating further that although the erection of buildings in cities is attended with hazards, such work has not been regarded as coming within the rule applicable to work intrinsically dangerous, the Court quotes with approval the statement of Mr. Chief Justice Cockburn in Bower v.