Gans Salvage Co. v. Byrnes.

McSherry, C. J., delivered the opinion of the Court. The appellant is a body corporate engaged in the prosecution of a general salvage business. After the great fire which caused a vast destruction of property in Baltimore City on February the seventh and eighth, nineteen hundred and four, the appellant contracted to remove a quantity of canned goods from the cellar of a building which, before the fire had consumed it, had stood on South street. The plaintiff, who is the appellee on this record, was one of a number of men employed by the appellant to do the work of removal. Several walls or parts of walls of the building were standing after the fire was extinguished and at the time the salvage work was commenced. In the declaration it is alleged that “the building was dangerous and unsafe to work in,” and that the “dangerous condition of said building was known to the defendant but unknown to the plaintiff That the plaintiff while using due care and caution in the said building was, by the negligence of the defendant in thus having him work in the said dangerous and unsafe premises, * * * seriously and .permanently injured * * * by the collapsing of a wall and other parts of the said building.” The case went to trial before a jury upon the issue joined on the plea of not guilty and resulted in a verdict against the defendant. From the judgment entered on that verdict the pending appeal was taken. During the progress of the trial five exceptions were reserved. Four of them relate to rulings concerning the admissibility of evidence and the fifth brings up for review the action of the *241 trial Court on the prayers submitted for instructions to the jury. As this is a suit by a servant against the master to recover damages for a personal injury sustained by the former in the course of his employment, negligence is the gravamen of the action. The negligence averred in the declaration consisted, if it existed at all, not merely in a failure of the appellant to exercise ordinary care to provide its servant, the appellee, with a reasonably safe place in which to perform the labor he had been employed to do, but in deliberately putting him to work in the ruins of a building known by the appellant but unknown by the appellee to be in a dangerous condition. The alleged negligence relied on to sustain a recovery was, therefore, not simply an omission to discharge some duty which the master owed to the servant, but involved an affirmative act of commission in the assignment of the servant to a situation which the master knew and the servant did not know to be perilous and insecure. Under the declaration it was incumbent on the appellee to prove by legally sufficient evidence, first, not only that some of the walls of the building in question which were left standing after the fire, were in a dangerous condition and liable to fall, but that the identical wall, which by falling caused the injury complained of, was also in that same condition when the appellee was placed or retained at work in close proximity to it; secondly, that the appellant had knowledge of the dangerous condition of the wall which by collapsing, injured the appellee, and that it, the appellant, possessed that knowledge prior to the occurrence of the accident; and thirdly, that the appellee was ignorant of the danger and by the exercise of proper prudence and care could not have discovered it before the wall fell upon him. A brief outline of the facts appearing in the bills of exception must be given before turning to a consideration of the legal principles which underlie and will control the final decision of the several questions presented to this Court by the record. The building, in the cellar of which the appellee and others *242 were working when the accident happened, had been completely destroyed by the fire. Some partition walls and a brick vault which extended from the cellar to the top story were left standing." All of the wood material had been consumed by the flames. The fragments of the walls still standing and the brick vault were not supported by any of the timbers which had formerly tied the outer and the inner walls together. The ruins showed merely a heap of debris, a few fragments of walls and the remnant of the brick vault. ’ This vault was built of brick and was about four or five feet square with openings into it on each floor. These openings in the face of the vault had iron doors attached. Thus the tenants of each floor were provided with a vault for the protection of their books and papers. After the fire this vault stood for a heighth of thirty or thirty-five feet and presented the appearance of a square stack or chimney with iron doors opening into it at each floor. The cellar of the house was divided up into arched compartments and in these the cases of canned goods were closely packed. In order to get them out, after the fire, it was necessary to dig through the arched tops of the compartments, and this was done by the appellee and the other laborers engaged in the work of removing the goods. The work of removing the cases had progressed for several days under these conditions. There was a foreman who had charge of the hands, and both the foreman and the hands worked under- a man named Ratinger, who had full charge of and supervision over the salvage work for the appellant company. Several days before the accident happened James W. McCuen, an inspector of furnaces, who was a subordinate of Building Inspector Preston, went to the premises where the appellee and the other employees of the salvage company were working, and told the forem'an “to take care of the walls as they were coming down as it was dangerous for the men to- gb further down without taking care of them; and he said he would.” This message was delivered to the foreman because Building Inspector Preston, who had not seen the com dition of the walls and who had no personal knowledge con *243 cerning them, had been informed "that there were some men working in a cellar on South street where it was dangerous.” The building inspector directed McCuen “to go down there and notify them to take care of the walls if they continued working there;” and McCuen without making any minute or even casual inspection of the walls, because, as he says, he did not have time to do so merely communicated to the foreman the warning sent by Mr. Preston. The foreman thereafter repeated to Ratinger the message delivered to McCuen. After McCuen had left and after Ratinger had learned from the foreman what the building inspector had directed to be done, one of the walls was thrown down under the supervision of Ratinger, but the vault stack was allowed to remain. There is not a particle of evidence in the record to show that the vault walls — the four walls forming the four or five feet square vault stack — were unsafe or dangerous or even impaired. On the contrary three witnesses examined on behalf of the appellee — they being the foreman and two of the eighteen men employed by the appellant — distinctly and emphatically say they thought the vault walls perfectly safe because they were solid. McCuen did not tell the foreman that the vault walls were unsafe. He did not go into the cellar; he made no special inspection of the vault walls; he is nota builder but a furnace inspector; and he testified that he thought in his judgment “if they would attempt to clear that debris out without protecting the walls, before they could get away from them they, would weaken and would fall down.” He further testified “the way it looked to me, to clear the debris out that was there, without first protecting the wall, it might possibly fall after the debris was away. I wasn’t making any particular inspection of that particular work. I was going around delivering messages to them who had charge of the gangs pulling down different walls.” On March the seventh, 1904, it rained and no work was done by the men on the premises in question, though they had worked there several days the previous week. On the following day, March the eighth, work was resumed and whilst the appellee and other laborers were in the cellar and *244 whilst Ratinger was standing within a few feet of the vault, the vault walls fell and injured the appellee and other workmen. There is nothing in the record to show what caused the vault walls to fall. To all appearances they were solid and safe and though McCuen, when testfying in the case ii year after the accident had happened, stated that in his judgment “when they got all this debris and stuff out of the cellar, it seemed to me, it would so weaken the wall, there being nothing to support it, it would fall,” he did not venture to say how much of the debris would have to-be removed before the walls would give away, nor was any evidence whatever adduced to show that the removal of the debris actually caused the walls to fall. This vault stack, as has been remarked, extended up the heighth of the building, and the upper half toppled over and fell inwards leaving about a story and a-half of it undisturbed. It certainly could not have been foreseen by any one that the upper part of this quadrilateral brick structure would separate from the lower part about midway of its entire elevation and that the top portion would fall, in the way it did. It is a general rule, not, however, without very important exceptions at least one of which will be alluded to later on, that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which the servant may perform his services. Eckhardt v. Lazaretto Co., 90 Md. 192; Armour v. Hahn, 111 U. S. 318. A failure of the master to do this, in the instances where it is his duty to do it, is negligence, and if an injury to the servant results therefrom and is the direct consequence thereof, an action will lie. A master is not an insurer of the servant’s safety. Wood v. Heiges, 83 Md. 269. His liability, if any liability attaches at all, depends altogether upon a breach by him of some imposed duty. Laying aside for the moment all the exceptions to the general rule requiring the master to exercise ordinary care to provide a reasonably safe place for the servant to work, what evidence is there in this case of a breach of the duty imposed by the rule? The concession by the appellee of the appellant’s fifth prayer which instructed the jury that the mere falling of the *245 wall by itself was not sufficient evidence of negligence on the part of the appellant, excluded any inference of negligence from the naked act which caused the injury. Serio v. Murphy, 99 Md. 556. The concession of the prayer made the legal proposition which it announced the law of the case, whether that proposition was right or wrong. Con. Ry. Co. v. O'Dea, 91 Md. 510. But the legal proposition contained in the conceded prayer was right. South Balto. Car Works v. Schaefer, 96 Md. 105. The case at bar is distinguishable from Treusch v. Kamke, 63 Md. 278. That was an action to recover damages for an injury sustained by the fall of a house which had been so carelessly and negligently erected and with such insufficient and improper materials that in consequence it suddenly fell, and in falling injured the plaintiff. It was held that “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 the jury.” Here, however, we have no inquiry concerning a faulty or negligent construction. A house-properly and carefully built with sufficient and suitable material would not suddenly fall and the owner who built it, if it did so fall, would be bound to explain the cause of the collapse if he wished to free himself from the consequences resulting from conditions for the existence of which he was himself responsible. The case in 63 Md. was not one between master and servant. In the case now before us no question as to improper or negligent construction is concerned, no suit is pending against the builder of the vault walls and no inference as to the dangerous condition of the walls can be drawn from the mere fact that the walls fell, unless it be assumed that they could not have fallen had they not been in an unsafe and dangerous condition. But to assume that would be to assume as true the precise thing to be proved, and that assumption, when adopted would then be substitued for evidence tending to establish the fact to be proved. Such a process would permit negligence to be inferred from the simple happening of the accident. In a case like this that cannot be done. *246 Something else, then, in addition to the mere falling of the vault walls, must be found in the record before it can be held that there was evidence tending to prove that the place where the appellee was employed to work was dangerous. One wall of the building had been torn down by^city employees, and after the warning message delivered by McCuen had been communicated to Ratinger by the foreman, another wall was demolished by the appellant’s workmen; but neither the city employees nor the appellant’s workmen disturbed the vault walls. If the vault walls had presented any indications of being in a dangerous condition at the time the other walls were leveled it is scarcely probable that they would have been allowed to remain standing. Indeed, it is reasonably certain they would also have been destroyed or strengthened. They appeared to be solid and secure, and the fact that they formed a square compact column which had stood firmly for a month after the fire, seemingly unaffected by it, and without exhibiting any signs of weakness whatever was calculated to induce a belief that it was not necessarily or even probably hazardous to remove the cases of canned goods from the cellar before either razing the walls or shoring them up. The evidence dobs not show what caused the vault walls to fall. The conjecture of McCuen that if the debris were removed the walls would fall is at best a mere speculation, because there is nothing in the record to show either that the debris had been removed, or if removed to what extent it had been taken away, or what causative relation existed if any, between its removal and the collapse of the walls. Nor does the testimony of Emerich, the district chief of the Fire Department, tend to show that the walls were dangerous before the accident happened. He was summoned to the scene after the walls fell and he knew nothing concerning them prior to that time. He aided in rescuing the men imprisoned by the debris. He found it necessary then to shore up the portions of the walls left standing, before he would permit his subordinates to extricate the appellee. But the condition of the remnants of the walls after the upper half of *247 them had toppled over gave no indication of their condition before their collapse. The physical appearance and the actual status had wholly and completely changed. But if it be assumed, or for the moment be conceded, that there was some legally sufficient evidence tending to prove that the walls which fell, and which by falling caused the injury complained of, were in a dangerous and unsafe condition when the appellee was put to, or retained at, work in the cellar, then it is certain, in the absence of any proof as to what caused them to fall, that the means of knowing the danger and the peril incident to the removal of the canned goods were as open and obvious to the appellee as to the appellant. It will not do to say that the information imparted by McCuen to the foreman and by the latter to Ratinger apprised the appellant of a hazard and a risk of which the appellee was ignorant; because in the last analysis all that McCuen definitely said to the foreman was to repeat Mr. Preston’s instructions “to all people cleaning out debris” that they should “take care of all dangerous walls before getting the debris out.” The dangerous walls were not pointed out and Ratinger, the foreman and the eighteen men at-work under the latter each had precisely the same opportunity to see, and to-judge as to, the peril involved in doing the work in which they were engaged, under the then existing surroundings. An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open or obvious, the dangerous character of which he had án opportunity to ascertain. B. & O. R. R. Co. v. Stricker, 51 Md. 47. One who remains in a service which necessarily exposes him to hazardous risks from causes open and obvious, the dangerous character of which he knew or had an opportunity of knowing, must be considered as having assumed such risks, and if injured in consequence thereof, has no claim against the employer. Penn. R. R. Co. v. Wachter, 60 Md. 395; Yates v. McCullough Iron Co., 69 Md. 370. This doctrine, firmly grounded in the law of this State, in the law of England ánd of probably every State in the Federal Union, - *248 though usually stated as a general rule constitutes, in reality, an exception to or qualification of the broad principle which requires the employer to use ordinary care to provide a reasonably safe place in which the servant may perform his work. It may be taken, then, as a postulate that a servant who, on entering into a contract of employment, knows of the dangers of the premises or place of work, or by the use of ordinary care could see and understand them, assumes the risks which arise therefrom. 20 Am. & Eng. Ency. L., 114. Knowledge by the servant of defects in appliances has been held in legal contemplation to carry with it knowlege of the risk and danger incideñt to the use of such appliances; and in such instances the law imputes and presumes knowledge of the risk and danger, and will not allow the injured workman to aver or prove that he had no actual knowledge thereof. Yates v. McCullough Iron Co., supra. Whatever danger or hazard there was in performing the work which the appellee had been employed by the appellant to do, was the danger or risk that unsupported and isolated walls, which had been subjected but recently before to the effects of the intense heat produced by a mighty conflagration, would, without warning and without the intervention of other forces than those set in motion by the laws of nature, suddenly collapse and fall, and in falling, occasion the precise injury which actually befell the appellee. He saw the denuded walls rising up to a heighth of thirty-five feet above the place where he was working — they confronted him as he stepped upon the premises — and he had aided in throwing down one of the walls because it was more threatening than the others ; and he must have known that a gale of wind or a vibration produced by the dynamiting of other walls in proximate sections of the burnt district, or a jar resulting from the fall of other walls in the vicinity, or the absorption of rain by the exposed mortar, might cause the vault walls to totter and fall. He must have known all this, because we are bound to assume he was a man of average intelligence, as there is “no proof that he was stupid or dull of intellect, that *249 any of his senses were impaired, or that he was not possessed of ordinary powers of observation.” Yates v. McCullough Iron Co., supra. If the place was really dangerous the appellee must have known that it was, because the means of knowledge were as open and obvious to him as to the master; and by voluntarily working there he assumed the risks of being injured by'causes which were open and obvious; and he cannot hold the employer responsible in damages if those open and obvious causes produced the injury. If, on the other hand, the place where he worked was not a hazardous one — if the walls which, in falling, injured him, were not in a dangerous condition — then there was no breach by the master of the duty owed to the servant to use ordinary care to provide a reasonably safe place in which the servant might perform his service ; and there being no breach of that duty no action can be maintained even though, in consequence of an accident resulting from some unexplained cause, an injury has been sustained. In either event — upon either hypothesis — there was no adequate cause of action. Such being the situation, the eighth prayer presented by the appellant withdrawing the case from the consideration of the jury ought to have been granted. That prayer sought to take the case from the jury because of a failure on the part of the appellee to adduce any legally sufficient evidence to show that the appellant had violated any of the duties it owed to the appellee. Holding as 'we do, for the reasons that have been given, that the prayer should have been granted, it becomes unnecessary to allude to or discuss the instructions which were given or the questions which are raised by the other bills of exception. As no recovery can be had, the judgment will be reversed without awarding a new trial. (Decided November 23rd, 1905.) Judgment reversed with costs above and below without awarding a new trial.