SOBELOFF, C.J., delivered the opinion of the Court.
This appeal brings up for review a judgment obtained by an injured electrical worker to his own use and to the use of the equitable plaintiff, the insurer of his employer who paid him compensation for the injuries. The judgment was against the manufacturer and installer of an overhead motor court or garage door, the mechanism of which failed, catapulting the worker and causing him to fall a distance of about 20 feet. The principal question is whether there was legally sufficient evidence to justify the submission of the issue of negligence to the jury.
The building in which the garage door was being installed is at 230 Franklintown Road, Baltimore, Md., owned by DeBoy Smith, Inc. and leased to the Great Atlantic & Pacific Tea Company. The term of the lease began on February 1, 1949, when the building was still uncompleted. One of the improvements for which the owner had arranged was the installation of two large overhead garage doors to be equipped with electrical motors to operate them. The defendant, Rowe Manufacturing Company, was the manufacturer of the door; the installer was the defendant, William F. Walker, Jr. The defendants are in dispute as to the precise relation existing between them, Rowe claiming that Walker was an independent contractor for whose negligence, if any, it (Rowe) was not responsible, and Walker claiming that he was in reality the manufacturer's representative. The plaintiff agreed with Walker's contention in this respect, but we need not further consider this issue because of the view we take on the main question, namely, the legal sufficiency of the evidence to show negligence on the part of either or both defendants.
At the trial the inquiry was, assuming that the cotter keys were missing at the time of the accident and that this caused or contributed to the accident, had these keys ever been installed in the mechanism and, if so, when and by whom were they removed? As the direct
The injured plaintiff himself testified on cross-examination, without objection, that he had heard that there had been some difficulty with the north door before
It is true that the suggestion of tampering with the equipment was at best hearsay and rather vague; but even if, despite its admission without objection, this testimony is disregarded as proof of tampering with the mechanism, it nevertheless illustrates how the accident could well have happened through the intervention of causes set in motion by others and at times when the defendants were not in control.
The appellee argues that the appellants had a continuing duty in respect to the doors until after the date of the inspection; that the contract between Rowe and Walker contemplated that the doors would operate properly when motor-driven, and at the time of the accident the motor operation had not commenced. It is, of course, well recognized that joint actors may be legally responsible even though their participation in a tort occurred at different times, in different ways, and in unequal proportions; Cooley on Torts, Third Edition, page 213, Lawson v. Clawson, 177 Md. 333, 340, 9 A.2d 755, 758, but here the burden of going forward with the evidence cannot be imposed on the appellants if they were not in control, and control is not the same thing as a contractor's obligation to render further services. Liability for negligence committed by a manufacturer or installer may, of course, survive the change of control, but a defendant's burden of going forward with proof
Accordingly, the record here shows an accident which may have been caused by the absence of a cotter key, but there is no explanation as to when, how or through whom this condition was created. The cotter key could have been negligently omitted at the time of the installation, or it could have been installed negligently, or it could have been removed by third persons after a proper installation. The jury had no basis in the testimony for a choice based on a rational inference. It could reach a conclusion only by speculation. It is well settled that where either of two causes results in injury, for only one of which a defendant is responsible, and there is no basis for concluding that that was the cause rather than the other for which the defendant is not responsible, no recovery can be had. State, use of Boznango v. Blumenthal-Kahn Electric Co., 162 Md. 84, 91, 159 A. 106, 109; Klan v. Security Motors, 164 Md. 198, 164 A. 235; Cloverland Farms Dairy v. Ellin, 195 Md. 663, 75 A.2d 116; Washington Sub. San. Comm. v. Musgrove, 203 Md. 231.
In an earlier appeal of this case, Vail v. Walker, 199 Md. 441, 87 A.2d 171, the ruling of the trial court on demurrer dismissing the case against the A. & P. without leave to amend was affirmed and that company is not a party here. As to Rowe, the demurrer was sustained in the lower court but reversed on appeal, and was affirmed as to Walker but with leave to amend. In the amended declaration the A. & P. was, of course, no longer a party, but sufficient allegations were made against Walker and Rowe. The plaintiff had the burden of proving negligence, and this burden he failed to meet.
With the plaintiffs' contention that the garage doors were a dangerous instrumentality under the rule of MacPherson v. Buick, 217 N.Y. 382, 111 N.E. 1050, we do not agree. The doctrine has received a qualified recognition in Maryland, but has not been applied in any
The trial judge should have directed a verdict for the defendants.
Judgment reversed with costs.