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provide or keep in working order such out-, try mentioned in the evidence, and that the let or drainage from said cellar, then the said poultry was delivered to the plaintiff plaintiff is entitled to recover in this case, in a damaged condition, and such condition provided the jury further find that said was caused by the bursting of the city water flood of water would not have gotten into main, the burden is on the paintiff to show the ice box or freezer where the plaintiff's that there was any negligence on the part poultry was (if the jury so find) if the de- of the refrigerating company which caused fendant company had provided such outlet the damaged condition of the poultry." or drainage, and kept it in working order. The court gave defendant's second prayer,

“(5) The plaintiff prays the court to in- but refused the others. struct the jury that even though they find Argued before BOYD, C. J., and PEARCE, that the cellar of the cold-storage warehouse SCHMUCKER, BURKE, and WORTHING: of the Baltimore Refrigerating & Heating TON, JJ. Company was flooded on December 28, 1904, Robert H. Smith, for appellant. Bagby by the bursting of a city water main one & Bagby, for appellee. square and a half away from said cellar, and that the damage to the plaintiff's poul- WORTHINGTON, J. This suit was intry (if the jury find it was damaged) was stituted by the appellee against the appelcaused by such flooding, the plaintiff is still lant to recover the amount of loss which entitled to recover in this case, provided the the former sustained by reason of the dejury further find that the water from the terioration in quality of a large quantity of city's main would not have gotten into the dressed ducks, ehickens, and squabs which ice box or freezer built in said cellar where he (the plaintiff) had in cold storage for the plaintiff's poultry was (if the jury so hire, at the defendant's cold-storage ware find) if the defendant company had exercis- house at 410 South Eutaw street, in Balti. ed reasonable care, as defined in the plain- more city. The plaintiff alleges negligence on tiff's third prayer, in the construction of the part of the defendant in failing to exersaid ice box or freezer, or in keeping the cise due and proper care in managing and doors to said ice box or freezer closed. maintaining its cold-storage warehouse,

“(6) The plaintiff prays the court to in- wherefore the poultry became decayed, moulstruct the jury that, if they find for the dy and practically unmarketable. The remote plaintiff, then the measure of damages is the cause of the injury seems to bave been the difference between the market value of the bursting on December 28, 1904, of one of squabs and chickens in their damaged condi- the city's water mains on Eutaw street about tion and the market price of good and mar- 500 or 600 feet north of the defendant's wareketable squabs, ducks, and chickens of the house. The water from this broken main ran same kind at the various times when said underground along one or more of the serpoultry was delivered by the defendant to eral pipe lines in the street, and some of it the plaintiff, with interest at 6 per cent. reached and made its way into defendant's from March 1, 1905, in the discretion of the cold-storage cellar, flooding the cellar to the jury."

height of four or five feet, and submerging The following prayers were asked by de- a number of boxes containing the poultry in fendant:

question. The cellar remained in this flood“(1) The jury is instructed that no suffi- ed condition for 24 hours or more before the cient evidence has been introduced to show leak could be repaired and the water from that the damage to the plaintiff's poultry the cellar removed. The ice box or refrigerwas caused by any negligence on the part ator where the poultry was stored was the of the defendant, the Baltimore Refrigerat- rear part of the cellar, being separated from ing & Heating Company, and their verdict the front part by a so-called insulated parmust be in favor of said company.

tition. In this partition was a door opening “(2) If the jury believe from the evidence from the front part of the cellar or vestibule that the plaintiff stored with the Baltimore into the ice box. Under this door was a crer. Refrigerating & Heating Company the poul- ice one-sixteenth, of an inch wide and four try mentioned in the evidence, and that the and one-half feet long. There was also a said poultry was damaged while in the small gutter on each side of the cellar floor warehouses of the refrigerating company by running under the partition intended to carry reason of the bursting of the city water off water used in washing the freezer or ice main, which caused the water to run into box. This water was collected by means of the said warehouse, and if the jury further these little gutters in a hole in the vestibule find that the refrigerating company took such part of the cellar, and carried out from care of said poultry as a prudent man would thence in buckets or barrels. There was, .take under similar circumstances of his own however, no drainage or sewer pipe in the property, then the verdict must be for the cellar. These facts are undisputed. The defendant, the Baltimore Refrigerating & plaintiff's witnesses also testified that a coldHeating Company.

storage cellar was not a good place to store “(3) If the jury find from the evidence delicate poultry like this, because there would that the plaintiff stored with the Baltimore be more or less dampness about a cellar

deteriorate; that poultry properly prepared to be elicited thereby related to other occurand packed ought to keep from six to twelve rences too remotely connected with the is. months; that there was nothing in the na- sue in this case to enable the jury to fairly ture of poultry such as this to render it un- infer therefrom either that this particular marketable or damaged from being left in poultry was properly prepared and packed or cold storage for six months or more; that that the injury complained of was due to this poultry was put in cold storage when negligence or want of care on the part of the freshly killed, and after being carefully pre- defendant, yet we are unable to see in what pared and packed for that purpose; that it manner the defendant was prejudiced by the was put in during August, 1904, on to Janu- answer given. In the case of Baltimore, etc., ary, 1905, and about the middle of January v. Leonhardt, 66 Md. 70, 5 Atl. 346, cited in a box of squabs was taken out and the squabs support of defendant's contention as to this found to be discolored and dark, and all the exception, the evidence was offered by the poultry was found to be in such a damaged defendant to show that no accident had ever condition that it had to be sold for hall before happened to a passenger on the upper price. The defendants witnesses testified deck of one of its cars. This court held that that this cellar was dry as a bone and the the evidence was properly excluded; the reaproper place for the storage of poultry; that son being, of course, that the defendant could the temperature in the freezer was maintain- not adduce evidence of proper care on its ed at 4 to 13 degrees. Two of defendant's part on former occasions as tending to show witnesses on cross-examination also testified proper care on its part on the particular octhat a freezer is made air-tight, or is suppos-casion then under investigation. In the case ed to be air-tight, but not necessarily water- of Wise v. Ackerman, 76 Md. 375, 25 Atl tight; that they did not provide against wa- 424, also relied upon by the defendant on this ter. In rebuttal two of the plaintiff's wit point, the offer was by the plaintiff to show nesses testified, against the objection of the that an accident similar to that sued for in defendant, that a well-constructed cold-stor- that case had bappened on a former occaage cellar should contain a drain pipe or sion. This court held the evidence insewer to carry off any superfluous water admissible because it could not form "the that might get in there, and also that a basis of a well-founded presumption as to freezer or ice box should be made air-tight the existence of negligence on the part of the and water-tight. During the progress of defendant as the direct cause of the injury the trial the defendant reserved four excep-to the plaintiff" in the case then before the tions, three to the rulings of the court on the court. In the case at bar the evidence is ofadmissibility of certain evidence, and one fered by the plaintiff, and shows that on relating to the prayers. The verdict and former occasions the poultry stored by plainjudgment being for the plaintiff, the defend tiff with the defendant came out all right. ant has appealed.

While such evidence tended to show that 1. The first exception is to the ruling of the plaintiff had on former occasions propthe court in permitting the following ques- erly prepared and packed the poultry stored tion, propounded to the plaintiff, to be an- by him with the defendant, yet, as we have swered: "Q. How about the poultry that said, the jury could not fairly infer thereyou prepared and packed in July and August from how this particular poultry was packed in other years, in the same way, and which or prepared. At the same time it tended to you left until January and February follow- show that there was nothing in the nature ing came out? Ans. It came out all right." of dressed poultry such as this to prevent its It is, of course, well settled that the facts of keeping in good condition in a cold-storage cel. the particular transaction are ordinarily the lar for several months, and also that the deonly legitimate evidence of the injury and fendant did ordinarily manage and maintain the manner and cause of its occurrence, and its cold-storage warehouse in a careful and not other and different occurrences. But it is proper manner. The answer, therefore, takequally well settled that facts occurring been altogether, was much stronger in favor of fore or after the suit are admissible if they the defendant than of the plaintiff by whose afford a fair and reasonable presumption counsel the question was propounded. For of the fact to be tried; it being left to the this reason, we think this exception furnishes jury to determine their precise force and ef- no reversible error. fect. Brooke v. Winters, 39 Md. 505; Davis 2. The second and third exceptions relate v. Calvert, 5 Gill. & J. 269, 25 Am. Dec. 282. to the action of the trial court in permitting In the present case this evidence was offered, the plaintiff's witness Gettier in rebuttal to as stated in appellee's brief, “as tending to answer the two following questions: "Q. show that the injury to the plaintiff's poul- How ought a refrigerator situated as this ustry was due to some act on the part of the ed by the Baltimore Refrigerating & Heating defendant, and not to either the nature of the Company to have been constructed? A. All poultry itself or to the way it was packed the refrigerators I have ever seen, and I by the plaintiff." While we do not think the have been in abattoirs here, and in Washingquestion a proper one to have been asked or ton and in New York, and been through all answered, under the circumstances of this the abattoirs and they all have sewers in the broke beside Swift & Co.'s warehouse, at the puts the burden of proof of negligence upon corner of Eutaw and Camden streets, and we the defendant. More correctly speaking, it have as large, if not a larger, cellar than the may be said to declare a prima facie case to Baltimore Refrigerating & Heating Company, have been made out, and to shift the burden and we did not have a cent of damage be- of proof from the plaintiff to the defendant cause we had a sewer there. Q. I asked you by the presumption of negligence from cerhow the ice box ought to have been con- tain facts recited as a matter of law. Sevstructed, or how they are usually construct- eral authorities outside of this state are cited ed? A. They are usually constructed air- by the attorneys for the respective parties tight and water-tight." The objection to in support of and against the correctness of these questions is in both instances based on this prayer. the ground that the witness had not shown But we think the substantial question has proper qualifications to make him an expert been passed upon and settled in at least two on the subject of the construction of storage cases heretofore decided by this court; one warehouses. The admissibility of expert or of these being the case of Hambleton v. Mcopinion evidence is largely within the discre-Gee, 19 Md. 43. In this case an action was tion of the trial court, whose judgment is brought by a liveryman to recover damages nevertheless always subject to review by this for injuries to a horse which had been hired court. Dashiell V. Griffith, 84 Md. 363, 35 to the defendant. This court, speaking by Atl. 1094. It must be shown that the wit. Bartol, J., said: "We agree with the appelness possesses such intelligence and such fa- lant's counsel that the onus of proving want miliarity with the subject as in the sound of diligence and reasonable and proper care discretion of the court will enable him to was on the plaintiff. But surely it cannot express a well-informed opinion in regard be said that there was no evidence from thereto. Some'subjects, of course, require a which the jury might find a want of reasonmuch higher degree of intelligence and of able care in this case. The horse when hired special knowledge than others. It is there was sound and in good condition. On the fore said that expert capacity is a matter following evening when returned he was bad. wholly relative to the subject of the particu- ly foundered, hardly able to walk, and died lar inquiry. In the present case, besides the in a few days. One of the witnesses stated evidence of his qualifications contained in that in his opinion the horse was foundered his answer to the first of the above questions, by hard driving. On this point several witthe witness had before the questions were nesses testify that a horse may be foundered put to him testified that he was in the em- when properly and carefully used. But that ploy of Swift & Co. engaged in the packing was a question for the jury, properly left to business, and had charge of and looked after them by the court's instruction." The other the cold-storage department, and had done case in mind is that of the American District so for 8 years; that for the last 22 or 23 Telegraph Co. v. Walker, 72 Md. 454, 20 Atl. years he had been working in the cold-stor- 1, 20 Am. St. Rep. 479. In that case the age business; that he had been employed at American District Telegraph Company hired three or four places where there were cold- a boy to drive a two-horse team for the plainstorage plants, including the abattoir in Bal- tiff. The horses ran away while in the boy's timore; that he had been through some of care, breaking the vehicle, and so seriously Swift & Co.'s cold-storage plants in New injuring one of the horses that it had to be York, Washington, and Norfolk; that he shot, while the other horse was rendered unlooked after the produce end of Swift & Co.'s safe to drive. In an action for damages business, such as poultry, butter, and eggs; against the telegraph company this court, that he had knowledge of defendant's plant speaking by Chief Judge Alvey, said: “That, from packing goods there for Swift & Co. We if negligence or want of skill in the bailee or think these opportunities for observation, to his servant be the ground of action, the onus gether with the experience which he was of proof is on the plaintiff." The former of shown to have had in the cold-storage busi- these two cases comes under the third head ness, qualified the witness to answer the of Lord Holt's division of the subject of bailquestions propounded to him.

ments, as explained in his opinion delivered 3. The fourth exception relates to the in the case of Coggs v. Bernard, 2 Lord Raygranting of the plaintiff's six prayers and to mond's Report 919; and the latter under the the rejection of two of the defendant's pray- fifth head of such division. The fifth head

All the prayers are set out in full in includes all cases where goods are intrusted the report of this case preceding this opin- to the bailee for safekeeping or to be carion. The principal objection urged by the ried, or to have some work done upon them, defendant's counsel is to the granting of the for hire to be paid to the bailee. But under plaintiff's second prayer. By that instruc- both heads, when negligence is the ground tion the jury are told that if they find cer- of the action, the burden of proving neglitain facts therein recited, “then the law pre- gence is upon the ba ilor. The case at bar sumes that the damage to said poultry was comes under the fifth head, and according to caused by the negligence of the defendant.” the rule declared in the two opinions of this


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gence is on the plaintiff. This does not mean, i consideration of the jury, we think it was
however, that the plaintif must prove the properly rejected. There was evidence prop-
specific acts of negligence which caused the er to be submitted to the jury, from which
injury, evidence from which the jury may in- they could have found want of proper con-
fer such negligence is sufficient. As in the struction of defendant's cold-storage cellar,
case of Hambleton v. McGee, supra, while and ice box or freezer located therein, and
the court held that the burden of proving that such want of proper construction was
negligence was on the plaintiff', yet that there the proximate cause of the injury to plain-
was evidence in the case from which the ju- tiff's poultry. The court will not grant a
ry might infer negligence without proof of prayer that there is no evidence legally suf-
the specific acts of negligence. The vice of ficient to show want of reasonable care on
the plaintiff's second prayer is that it de- the part of the defendant, unless there is no
clares that negligence may under the cir- evidence in the case from which such want
cumstances set forth in the prayer be pre- of reasonable care may reasonably be inferred
sumed as a matter of law, whereas it is for by the jury.
the jury to determine whether negligence As to the defendant's third prayer, which
may be inferred or presumed or not, taking was also rejected, while in the abstract it
into consideration all the facts and circum- seems intended to express a correct proposi-
stances of the case. The court is to say tion of law, yet not only is its phraseology
whether any facts have been established by somewhat obscure, by reason of the use of the
the evidence from which negligence may be word "caused” twice in different senses in close
reasonably inferred. The jurors have to say connection with each other, but it also ignores
whether from those facts when submitted to the fact that the defendant's witnesses in
them negligence ought to be inferred. See testifying to the breaking of the water main
Schermer v. Neurath, 54 Md. 491, 39 Am. Rep. and the flood of water that in consequence
397. In the case of Russell v. New Haven ran into the cellar of defendant also testified
Steamboat Company, 50 N. Y. 121, Rapallo, to the fact that the freezer was not air-tight
J., speaking for the Court of Appeals of that or water-tight, but that there was a crevice
state, says, at page 127: "The nature of an under the freezer door, and also an opening
accident may itself afford prima facie proof under the partition where the gutter was lo-
of negligence, and we think, as the case cated, which crevice and openings allowed the
stood, the judge erred in not submitting the water to run into the freezer, thereby causing
question of negligence to the jury.” In a the injury complained of, and also that there
later case from the same court it is said, cit- was no drain pipe or sewer leading from the
ing Russell v. Steamboat Co., supra: “While cellar, from which facts the jury might have
it is true as a general proposition that a inferred want of due care without any fur-
bailor charging negligence on the part of the ther proof on the subject. In order to make
bailee rests under the burden of proof, yet clear the objection to this prayer, it may be
often times slight evidence will shift the bur-useful to say here a word upon the subject
den to the bailee.” Wintringham v. Hayes, of the burden of proof. As we have already
144 N. Y. 1, 38 N. E. 999, 43 Am. St. Rep. 725. stated, in this case the burden is upon the
But that there is sufficient evidence thus to plaintiff to show negligence on the part of
shift the burden of proof is not ordinarily the defendant; that is to say, the plaintifr
for the court to determine, but for the jury. must show that some negligent act or omis-
In Price's Case, 29 Md. 420, this court, speaksion of the defendant was the proximate cause
ing through Alvey, J., says: “It is very true of the injury in order to entitle him to re-
negligence may in some cases become a mere cover. If the plaintiff, by his testimony in
question of law, to be determined by the chief, make out a prima facie case, and the
court, upon a given state of facts, either ad-defendant, instead of producing evidence to
mitted or to be found by the jury. It is not, negative the facts which the plaintiff's evi-
however, the duty of the court to draw in-dence tends to establish, proposes to show a
ferences or make deductions from evidence. distinct proposition which avoids the effect
To do that falls within the well-defined prov- of the plaintiff's evidence, then the burden of
ince of the jury that courts should be ever evidence shifts, and rests upon the party pro-
careful not to invade.” The circumstances posing to show the latter fact. If evidence
of that case, it is true, were different from tending to prove this fact be adduced, then
those in the case at bar, but the principle the onus is cast again upon the plaintiff to
enunciated therein as quoted above is equal- show that notwithstanding such distinct fact
ly applicable here. We think, therefore, that the adverse party is still responsible because
there was harmful error in granting the such fact does not excuse him. Such a de-
plaintiff's second prayer.

fense amounts really to a plea of confession We understand that there is no objection and avoidance. "As is said by Thayer in his to the remaining five prayers of the plaintiff, Prelim. Treatise on Evidence: "The parties and we think these would fairly have in-are doing the work at the trial that it is the structed the jury had the erroneous second preliminary function of the pleadings to do. prayer been omitted altogether.

Practically they are pleading ore tenus." In As to the defendant's first prayer, by which this case the defendant confesses the injury,

showing the bursting of a city water main , approved by the common pleas, the title to the and the flooding of its cellar in consequence. right of way passes to the company. Such an occurrence, the testimony shows, had

[Ed. Note. For other cases, see Eminent Donot happened before for at least 16 years, and main, Cent. Dig. $$ 851, 852;' Dec. Dig. 320.*) it is contended that it is one that the defend- 3. EMINENT DOMAIN (8 320*)-RIGHT OF WAY ant could not be expected to provide against.


Where a sufficient bond approved by the But that was a question for the jury to de- court has been given, the railroad company, ac. termine; for if, notwithstanding such unusual quires as perfect a right to the easement as if it occurrence, the defendant could, by the exer- had paid cash therefor, and the landowner's cise of ordinary care and foresight, have with the statutory provision for assessment and

only remedy is upon the bond in connection averted the injury, he still must answer in collectiou of damages. damages to the person injured. Van Zyle on (Ed. Note.-For other cases, see Eminent Da Bailments, 88 202-204. In undertaking to main, Cent. Dig. $ 852; Dec. Dig. $ 320.*] show by way of confession and avoidance 4. EMINENT DOMAIN (§ 317*)-RIGHT OF WAY that this unusual occurrence was the cause

-TITLE ACQUIRED. of the damage to the poultry, the defendant's right of eminent domain is not a fee, or an ease

The interest which a railroad acquires by witnesses, as we have already stated, also ment in the proper sense of the word; but it is, testified to facts which in the minds of the in substance, an interest in the land special and jury might have given rise to the inference exclusive in its nature. of the want of ordinary care and foresight on (Ed. Note.-For other cases, see Eminent Dothe part of the defendant without further main, Cent. Dig. 88 83412, 836; Dec. Dig. 8

317.*] proof on either side. And, besides this, the plaintiff in rebuttal did adduce evidence still 5. EMINENT DOMAIN (8 323*)—RIGHT OF WAY

-ABANDONMENT. further tending to show a faulty construction

Where a railroad company under the right of the defendant's cold-storage cellar, and, of eminent domain appropriates land for its had the defendant's third prayer been grant- right of way, fixes the width of its appropriaed, the jury might have inferred that, even

tion, which is approved and adopted by its

board of directors, gives a bond to secure the if they deemed all the evidence taken togeth- damages resulting, and actually occupies and er sufficient to warrant them in finding such constructs its road on the land, it cannot therewant of ordinary care and prudence, yet that after refuse to take any part of the right of in the opinion of the court some further evi- ages for the width originally fixed by the com

way, so as to defeat the owner's right to damdence on the part of the plaintiff was neces- pany. sary to justify them in so finding. Negligence (Ed. Note.-For other cases, see Eminent Do is a question for the jury to determine from main, Cent. Dig. § 864; Dec. Dig. & 323.* ] all the facts and circumstances of the case, 6. EMINENT DOMAIN (8 84*)-TITLE ACQUIBand not from the evidence of either party

ED—SPRINGS. alone. For these reasons, we think the de- tion secure title to the waters of a spring with

A railroad company does not by condemna.fendant's third prayer, if granted, would have in the right of way, and in assessing, damages been misleading to the jury, and that under the landowner is not entitled to the value of the the circumstances of this case it was proper- spring, but is entitled to compensation for inter

ference with its use. ly rejected. But for the error in granting plaintiff's main, Cent. Dig. & 227; Dec. Dig. $ 84.*]

(Ed. Note.--For other cases, see Eminent Dosecond prayer, the judgment must be reversed, 7. EMINENT DOMAIN (§ 318*)–TITLE ACQUIRand a new trial awarded.

ED-SUBJACENT SUPPORT. Judgment reversed, with costs to the ap- A railroad company, in the exercise of its pellant and a new trial awarded.

right of eminent domain, secures not only the surface, but also so much of the underlying minerals as may be necessary to support the

surface. (222 Pa. 516)

[Ed. Note.-For other cases, see Eminent DoDILTS V. PLUMVILLE R. CO. main, Cent. Dig. $$ 841, 842; Dec. Dig. § 318.*] (Supreme Court of Pennsylvania. Jan. 4, 1909.) 8. EMINENT DOMAIN (8 153*)-PERSONS Ex


Where the owner of the surface had, prior Where the location of the route has been to the appropriation of the land for a railroad made by the engineers of a railroad company right of way, conveyed the coal underlying the and become complete by adoption by the com- surface, with sufficient mining rights to enable pany, the title to the route, as against other the grantee to remove all the coal, regardless of companies, passes to such company.

its effect upon the surface, the grantee of the [Ed. Note.--For other cases, see Railroads, coal must be compensated by the railroad comDec. Dig. $ 56.*]

pany for any part of it necessary for the sup

port of the surface. 2. EMINENT DOMAIN ($ 320*)-RIGHT OF Way (Ed. Note.–For other cases, see Eminent Do-TIME WHEN TITLE PASSES.

Where the location of the route of a rail- main, Cent. Dig. § 407; Dec. Dig. $ 153.*] road company by its engineers and adoption of 9. EMINENT DOMAIN ($ 203*)—ASSESSMENT or the location by the company has been followed DAMAGES-EVIDENCE-ADMISSIBILITY. by the payment of the damages due the land- The answer of a witness that he would not owner, or when a bond to secure the damages wish to own the farm after the appropriation of has been given and accepted by the owner or a railroad right of way across it was immateri

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