53 A.2d 24 | Md. | 1947
The appellant brought suit in the Court of Common Pleas of Baltimore against the appellee, claiming damages for injuries received when struck by a piece of staging dropped by the employees of the defendant, while working above where he was standing. At the conclusion of the plaintiff's case, defendant offered a variance prayer, which was refused, and a demurrer prayer, which was granted. From a judgment for costs in favor of the defendant the plaintiff appeals.
The plaintiff-appellant was an electrician employed by the Maryland Dry Dock, Incorporated. On February 26, 1944 he was working on an uncompleted ship which was at Pier 5 of the Maryland Dry Dock at Fairfield Yard. The room in which he was working was separated from the main engine room by a bulkhead. In the main engine room there were other employees who were working on cables and who would pass them through to the plaintiff. For some reason they did not come as fast as the plaintiff expected, and he went to the main engine room in order to find out why. In order to do this he had to go up to the next deck, go across *451 an opening, then down some stairs and a catwalk into the main engine room. This catwalk was approximately 10 feet above the bottom of the ship. He went along this catwalk towards his fellow employees, and in so doing had to pass under the fidley, which is the space below, between and around the smoke stack. When he passed under this he looked up to see if there was anything above him, noticed that some asbestos was dropping and saw the legs of two men dressed in white coveralls. In the space between the inner and outer smoke stacks there was permanent staging, and also catwalks which workmen could use. The plaintiff continued along the catwalk on which he was walking until he reached his fellow employees. He then stood there with his right hand on a vertical ladder and engaged in conversation about the work. At that time the men he had seen working overhead were from 30 to 40 feet above him, and he was about four or five feet away from where a perpendicular line from them would reach the floor of the engine room. While he was standing there a piece of rough staging 7'x12"x2" fell from above and struck him on the right arm, breaking it in several places. From this injury he received a permanent disability and the insurer of his employer paid him $1,592.85 for compensation and hospital bills. The insurer is a party plaintiff to this extent.
Witnesses testified that employees of the appellee were insulating steam pipes, air ducts, and boilers, and were on that day working in the casing of the stack which would be about 35 or 40 feet above the main engine room. The staging they used was composed of planks, 3 inches by 12, and was erected by the Maryland Dry Dock. The other electrician, whom the plaintiff came into the main engine room to see, testified that the employees of the appellee had been dropping absestos in the morning, and he had called up five or six times to ask them to be careful with it. The accident occurred about 2 o'clock in the afternoon. This asbestos was what they used to cover the pipes. He said that up *452 until a short time before the accident he had noticed that two or three of the employees of the appellee were working overhead, and that there was no one else working overhead at the time. He saw the accident and the piece of board that fell down was covered with asbestos insulation. It was also testified that the planks used in the permanent staging come in 14 foot lengths and when it was needed to have a smaller piece, this staging was cut. The safety inspector of the Dry Dock Company investigated the accident about one-half hour after the accident, and said that all of the permanent staging was in place and he could not find that a board was missing anywhere. He said that when he got there, two Dry Dock men were sitting on cans in the fidley.
It was argued by the appellee, and held by the lower court, that these facts did not show any negligence by the employees of appellee. It is contended that there was no evidence that the board was being used by them, or that it was in their exclusive control, that there was no evidence showing precisely from what place the board fell, and that it may have fallen from other causes for which the defendant was not responsible.
This Court thinks that the evidence was sufficient to justify submitting the case to the jury. Appellee's employees were working in this opening. They were the only ones working there. The defendant was the only contractor doing insulation in the ship. Its men had been putting asbestos on ducts up in this space all morning. There were two men in white coveralls (unusual for other workers on shipboard) working there just a few minutes or seconds before the accident, when the plaintiff crossed under them. Asbestos was falling then. There is testimony that there were no other persons in the space by the smoke stack at the time. The board with asbestos on it fell from that direction. Under these circumstances the reasonable inference is that a board under the control of the employees of the appellee was negligently permitted to fall and struck the plaintiff. *453
In the case of Strasburger v. Vogel,
In the case of State v. Blumenthal Kahn,
In the case of the Combustion Engineering Company v.Hunsberger,
The variance prayer was refused by the court and is not before us. We would, however, be slow to say that a variance prayer should be granted in a case where there was sufficient evidence of negligence to take the case to the jury, merely because the plaintiff in his declaration and in his particulars alleged more than it was necessary for him to prove, and failed to prove the additional facts alleged. In this case these facts were that the defendants were using a plank of the size which fell, and that they failed to lash it down.
As a result of our conclusions above outlined, the judgment will be reversed and a new trial awarded.
Judgment reversed, with costs, and case remanded for a newtrial.