American Paving & Contracting Co. v. Davis , 127 Md. 477 ( 1916 )

The declaration in this case contains three counts. In the first count it is alleged that on the 18th of September, 1914, the plaintiff was the owner and occupant of a frame dwelling house on the northeast corner of Old York road and Wyanoke avenue, in Baltimore City, known as number 600 Wyanoke avenue, and also the owner of a large quantity of furniture and other household articles contained in said dwelling; that on the day mentioned the defendant, its servants and agents, were engaged in grading a portion of Old York road, one of the public highways of the city, and in the prosecution of the work operated a steam shovel opposite and in close proximity to the dwelling of the plaintiff, and that in consequence thereof the dwelling, furniture and other household articles of the plaintiff were partially destroyed by fire occasioned by sparks emitted from the shovel while being so operated, and was further damaged in an effort to extinguish the fire and to save the property from total destruction, and the plaintiff was also deprived of the use of the property for two and a half months; that the sparks were so emitted because the defendant, its servants or agents, negligently and wrongfully used upon the highway mentioned a steam shovel which was so constructed and equipped as to make its use dangerous to all buildings near the place of its operation, and that the fire was due to the lack of ordinary care on the part of the defendant, etc., in the selection and equipment of the steam shovel, and not to any negligence on the part of the plaintiff directly contributing thereto. The second count charges that the sparks were emitted because the steam shovel was negligently and carelessly operated by the defendant, etc., and the third count alleges that the sparks were emitted because of the negligence and carelessness of the defendant, etc., in no providing the steam shovel with suitable fixtures for preventing the emission of sparks therefrom after allowing a sufficient draft to create sufficient steam to properly propel the shovel, etc.

The defendant demurred to the declaration and each count thereof, but the Court below overruled the demurrer, and the trial of the case resulted in a verdict and judgment in favor of the plaintiff for $1,382.50, from which judgment the defendant has appealed.

During the trial the defendant reserved eleven exceptions, the first ten of which are to rulings of the Court below on the evidence, and the remaining exception is to the action of the lower Court on the prayers. As the defendant's first, third and fifth prayers present the contention of the defendant, that there is no evidence in the case legally sufficient to entitle the plaintiff to recover for the damage caused by the fire to either the dwelling or furniture, they will for the sake of brevity, be considered in connection with the ruling on the demurrer.

The plaintiff's house was located on the corner of Old York road and Wyanoke avenue, with a frontage of twenty-two feet on Wyanoke avenue and a depth of fifty-two feet on the Old York road. It was a frame dwelling, covered with wooden shingles, which had been on the house about twenty-five years. For some time prior to the fire, which occurred on the 18th of September, 1914, the defendant was engaged in grading Old York road, and in doing the work used a steam shovel. The diameter of the smokestack of the engine, which extended several feet above the cab, was about ten inches. At the time of the fire the shovel was being operated at a point west of, and about thirty feet from, the rear end of the plaintiff's dwelling, and the wind, which was blowing from the west, carried the sparks from the smokestack to the plaintiff's house. There had been no rain for some time, and the shingles on the roof of the house were very dry. The defendant had been operating the steam shovel in the neighborhood for about ten days, and a number of witnesses testified that when the steam shovel was in operation large and glowing embers or sparks, ranging in size from that of a chestnut to that of a pigeon egg, were emitted in large quantities from the smokestack and blown from thirty to forty feet in the air. James A. Clark, the captain of No. 31 Engine Company, testified that while his company was engaged in extinguishing the fire, and he and the engineer of the company were on the third floor of the plaintiff's dwelling, sparks from the steam shovel about the size of his little finger fell upon them. The evidence also shows that there was no fire in the house during the afternoon of the day of the fire, and that the fire which destroyed the third story of the dwelling and caused the damage complained of, started on the roof and on the side next to where the steam shovel was in operation, and that the steam shovel was not provided with a spark arrester of any kind.

The contention of the appellant is that the declaration does not specify the particular act or acts of negligence relied upon, and that the evidence fails to show that the fire was caused by sparks from the steam shovel or was due to any act of negligence on the part of the defendant. In Sims v. American Ice Co.,109 Md. 68, the first count charged that the sparks which caused the fire "were thrown out because the said defendants had negligently and wrongfully used upon the said line of railroad engines which were so constructed and equipped as to make the use of said engines dangerous to all combustible property near the line of said railroad," and that the fire was due to the lack of ordinary care on the part of the defendants in the selection and equipment of the engines, and the second count alleged that the sparks "were thrown out because the said engines were negligently and carelessly operated." The attention of the Court was directed to the declaration by the prayers and also by a demurrer to one of the pleas, and the Court below sustained the demurrer to the plea, and this Court, on appeal, affirmed the judgment in favor of the plaintiff. The allegations in the present case are not less specific. The pleader is not required to set out the evidence upon which he relies to establish his cause of action. All that is required of him is such reasonable certainty in the averments as will fully apprise the defendant of the nature of the charge against him, and enable him to prepare for his defense. Phelps v. Howard County, 117 Md. 175. Negligence in such cases may consist in the use of a steam shovel not properly constructed, or which was not in good order, or not supplied with suitable fixtures to prevent injury from fire, or may consist in the failure to exercise such care and diligence in using the same as would be exercised by skillful, prudent and discreet persons under like circumstances; B. S.R.R. Co. v. Woodruff,4 Md. 242; B. O.R.R. Co. v. Shipley, 39 Md. 251; 33 Cyc. 1332-36.

In the case of Green Ridge R.R. Co. v. Brinkman, 64 Md. 52, the Court said: "In the plaintiff's third prayer the jury were told that if they believed from the evidence that the engine ``habitually scattered sparks to such an extent as to endanger combustible material along the line of the road,' it is a fact from which they may find negligence on the part of the defendant. In A. E.R.R. Co. v. Gantt, 39 Md. 135, a witness stated that he had seen the engines ``scattering large sparks in passing, capable of setting fire to combustible articles along the road; and that about a week before he had put out a fire in the leaves caused by these sparks; but he could not say that he had ever seen any such sparks from the locomotive that was drawing the freight train on the morning of the fire.' CHIEF JUDGE BARTOL, in delivering the opinion of the Court, said: ``We entertain no doubt that this was competent and admissible evidence, both for the purpose of proving that the fire in question was occasioned by the locomotives, and as tending to prove negligence on the part of the defendant, in the construction and management of its engines.'" In the case ofHodges v. Baltimore Engine Co., 126 Md. 307, 94 A. 1040, where there was evidence to show that the engine which was alleged to have caused the fire was not equipped with a spark arrester, and that sparks were emitted from the smokestack when the engine was in operation, JUDGE PATTISON, speaking for the Court, said: "What constitutes ordinary care and prudence in cases of this character depends upon the circumstances of the particular case. The greater the danger of communicating fire to the property of others, the more precautions and the greater vigilance will be necessary in order to measure up to the requirements of ordinary care," and then quoted the statement of the Court in Martin v. McCrary, 115 Tenn. 316, 1 L.R.A. (N.S.) 530: "The degree of care required by one threshing wheat with a steam thresher, in respect of setting fires, is the same as that devolved upon railway companies in the use of their engines. That rule, as laid down in Louisville N.R. Co. v.Fort, 112 Tenn. 432, 80 S.W. 429, is that ``care commensurate with the risk or hazard' must be used. In the same opinion the degree of care required is thus characterized: ``A degree of care and prudence commensurate with the danger to which this property is exposed by them in the lawful conduct of their business.' * * * ``As the danger necessarily attending the use of fire in locomotives is far greater in some places and upon some occasions than others, what is reasonable care in their equipment and management must always depend upon the facts and circumstances of each case. What would be ordinary care in the operation of them in the country, or in a wet season, might be gross negligence in a town or city, or in a drouth, where and when the danger of communicating the fire is, in the very nature of things much greater.'" See also B. S.R.R. Co. v.Woodruff, supra; B. O.R.R. Co. v. Shipley, supra; Ryan v.Gross, 68 Md. 377; Sims v. American Ice Co., supra.

Upon the authorities cited the declaration was not open to the objection urged against it, and we think the evidence was legally sufficient to support its averments, and that it was for the jury to determine whether the fire was caused by sparks from the steam shovel, and whether under the circumstances the defendant was guilty of negligence in the operation of the steam shovel and in failing to equip it with a spark arrester.

There was no error in the ruling in the first exception. The witness had already testified to the condition of the furniture as the result of the fire; that he was a cabinet maker; had made many sets of furniture and knew from experience the cost of repairing furniture. He was therefore competent to state what it would cost to repair the furniture that was damaged by the fire.

The second, third, fourth, fifth, sixth, seventh and eighth exceptions are to the testimony of a number of witnesses who observed the size and quantity of sparks emitted from the smokestack of the steam shovel while it was in operation near the plaintiff's property within a few days before or after the fire, and to evidence to the effect that one of the plaintiff's neighbors had to use a hose to wet his house in order to prevent it from catching fire, and that when, a few days after the fire, the defendant's servants put a wire hood or screen over the smokestack, the sparks were very much smaller. Under the rulings in Gantt's Case, supra, and Ryan v. Gross, supra, this evidence was clearly admissible, not only for the purpose of showing that the fire was caused by the sparks from the steam shovel, but also as tending to show negligence on the part of the defendant. The mere fact that the defendant or its servants after the fire put a wire hood or screen ever the smokestack would not be admissible for the purpose of establishing an admission of liability by the defendant (Ziehm v. United Electric, etc., Co., 104 Md. 48; Columbia P.S.R. Co. v. Hawthorne, 144 U.S. 202), but evidence of the effect of the screen was admissible as reflecting upon the question whether the defendant had exercised proper care and caution to avoid injury to the plaintiff's property.

The ninth exception is to the refusal of the Court to allow the witness to say whether the steam shovel in question threw out any more sparks than steam shovels usually throw out. In Baltimoreand York Turnp. Co. v. Crowther, 63 Md. 558, the defendants offered evidence to show that it was a common thing on other turnpikes and roads in Baltimore County to find the central or artificial portions elevated above the sides fully as much as the macadamized part of the defendant's road at the place in question, but the Court sustained the plaintiff's objection to the evidence, and in disposing of the exception JUDGE MILLER said: "It was the duty of the jury to decide whether this particular road was safe by evidence of its actual condition, and not by comparing it with the condition of other roads. The fact that similar defects existed in other roads affords the defendants no excuse for their neglect of duty with respect to their own road." Upon the same principle the evidence referred to in this exception was properly excluded. See also Wood v.Heiges, 83 Md. 271.

A witness for the defendant having stated that in operating a steam shovel, the shovel "excavates dirt, lifts it and deposits it in wagons which haul it away at a distant point. The horses and wagons get as close to the shovel as possible," was asked if "any of the horses were burned as result of sparks emitted from steam shovel?" and the tenth exception is to the refusal of the lower Court to allow the question to be answered. It is not clear that the evidence of this witness referred to the operation of the particular shovel in question while it was employed in the neighborhood of the plaintiff's property, or that the witness ever saw the steam shovel while engaged in that work, and the fact that no horses had been burned could not have aided the jury in determining whether the fire which injured the plaintiff's house was caused by sparks from the steam shovel, or whether the defendant had used proper care to avoid injury to the same.

The defendant's second prayer was withdrawn. Its fourth prayer asserted the proposition that if the plaintiff's house was insured, and he received the sum of $885.00 from the insurance company in payment of the loss caused by the fire, he was not entitled to recover, and is disposed of by the case of CityPass. Ry. Co. v. Baer, 90 Md. 108, where it was said: "The sixth prayer asserts the correct proposition that any sick benefits received by the plaintiff from any other source than the defendant were not to be considered by the jury in making up their verdict," and the case of Ches. Iron Works v.Hochschild, 119 Md. 303, where this Court said: "The rule seems to be well established by the authorities that the fact of insurance cannot be set up in mitigation of damages whether such reduction is set up in mitigation in case of fire, life, marine or accident insurance."

Plaintiff's first prayer was approved in Sims v. AmericanIce Co., supra. No objection was urged in this Court to the plaintiff's third prayer except that the case should have been withdrawn from the jury, and the objection to plaintiff's fourth prayer, which instructed the jury that they were not to consider the payment made by the insurance company, is disposed of by what we have said in reference to defendant's fourth prayer.

Finding no error in the rulings of the Court below the judgment will be affirmed.

Judgment affirmed, with costs to the appellee.