Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
The cause was argued before Brune, C.J., and Henderson, Hammond, Horney and Marbury, JJ.
MARBURY, J., delivered the opinion of the Court.
We are presented with two appeals in one record. The appellant, Charles Leidenfrost, was an employee of Realty Investment Company (Realty), general contractor on a construction site in Prince George's County. As the result of injuries sustained when a pile of slag blocks fell on him at the site on November 29, 1961, Leidenfrost filed suit against three corporations. They were: Washington Brick Company, Inc., supplier of the slag blocks, Goad and Slocum, Inc. (Goad), which had contracted to deliver the blocks, and Atlantic Masonry, Inc. (Atlantic), masonry subcontractor which was to use the blocks. The appellee, Atlantic, in turn filed a cross-claim against Goad and a third party claim against one James Edward Lacey, he person who actually stacked the blocks.
After Washington Brick Company, Inc., had been let out of the case by the granting of directed verdicts in its favor, the original suit was submitted to the jury on the theory of res ipsa loquitur, and Atlantic's third party claim and cross-claim were also submitted to the jury. The jury returned a verdict awarding Leidenfrost $7100 against Atlantic only, and rendered a verdict for Lacey on the third party claim by Atlantic. Atlantic's cross-claim died with the jury's verdict in favor of Goad. Thereafter Atlantic filed motions for judgment n.o.v. which the court granted in part, but only against Leidenfrost, on the ground that he had not proved that Atlantic had exclusive control over the instrumentality causing the injury, an essential element to recovery in a suit based on res ipsa loquitur. Appellant Leidenfrost contends the trial court was in error in setting aside the jury's verdict. The cross-appellant, Atlantic, contends the court should have granted its motion for judgment n.o.v. as to Goad,
the cross-defendant below, and against Lacey, the third party defendant below, both cross-appellees here, though neither filed a brief or appeared.
The testimony showed the following facts surrounding the injury. Leidenfrost, assistant to the building superintendent Flynn, arrived at the job site between 8:00 a.m. and 8:30 a.m. One of his functions was that of timekeeper, and on this morning, as usual, he checked in the other three or four employees Realty had on the job. The weather was clear and cold, the ground, which had frozen the night before, had thawed. About the same time Leidenfrost reported to work Lacey delivered and stacked two piles of slag blocks at the construction site. The delivery was accepted by Richard E. Shriver, foreman for Atlantic, who told Lacey where to unload and stack the blocks. Shriver did not observe the unloading and in fact had no recollection of having seen the piles of blocks after they were stacked. He testified that Lacey came to him at some other part of the building site after the stacking and that at that time he signed a delivery ticket acknowledging receipt of the blocks on behalf of Atlantic. He added, the blocks were delivered for use by Atlantic employees and that no one else was working with this type of block, but he did not know if the men were using blocks from the stack which fell.
At approximately 10:00 a.m., Leidenfrost in the company of Flynn and Shriver, proceeded across the site on a path which passed within twenty-four to thirty-six inches of the stacks of blocks which had been placed on the site earlier that morning. Appellant testified that he casually noticed the stacks at that time and that their appearance was usual except that one pile was higher than several others which were located in the vicinity. The trio proceeded to one of the buildings under construction. Then, on instructions from the superintendent, appellant returned along the path past the same stacks. As he came abreast of them one pile gave way, and though his instinct warned him of something falling and he veered away, nevertheless he was struck by some of the falling blocks which weighed about forty-five pounds each. He testified he had not seen anyone in the immediate area of the stack just prior to the injury, nor did he brush against or touch the stack before
it tumbled. No one observed the accident, but the superintendent and Shriver both arrived shortly afterward and observed the appellant on the ground, his feet in the path and approximately a dozen blocks surrounding him. Briefly unconscious, appellant shortly regained his senses and was assisted to the office. From there he was taken in an ambulance to a hospital for treatment.
We will first consider Leidenfrost's appeal, where the issue turns squarely on the question of exclusive control. Since we have recently discussed in some detail the doctrine of res ipsa loquitur in Munzert v. American Stores, 232 Md. 97, 192 A.2d 59, we need only state for the determination of this appeal that to succeed in a tort action based on the doctrine one of the elements which the plaintiff must prove is that the defendant had exclusive control of the instrumentality which caused the injury. Since it is conceded the other elements are satisfied, if Leidenfrost produced evidence sufficient to show exclusive control of the blocks to be in Atlantic, then he has raised a permissible inference of negligence and established a prima facie case.
At the conclusion of the trial court's charge to the jury, counsel for Atlantic asked the court to expand upon the control aspect. He wanted it made clear that the question the jury had to decide was whether the defendants, or any of them, in fact had exclusive control, and this the court did to the satisfaction of all the parties. We think the ...