Baltimore Boot & Shoe Manufacturing Co. v. Jamar

⁴⁰⁸ Schmucker, J., delivered the opinion of the Court. The appellee sued the appellant company in the Superior Court of Baltimore City for damages for injuries sustained by him, while he was a convict in the Maryland Penitentiary, from the falling of an elevator attached to the shoe factory in that institution. The verdict and judgment were against the appellant and it appealed. The record contains but one bill of exceptions and that relates to the action of the Court upon the prayers.

There was evidence tending to prove the following state of facts. The appellant in 1889, contracted with the directors of the penitentiary, for the use of certain buildings and the labor, of a given number of convicts, without specifying any particular ones, for the purpose of manufacturing boots and shoes. The buildings were inside of the penitentiary walls and the convicts whose labor was hired remained subject as convicts to the rules and discipline of that institution and continued in its custody and were watched by its deputy wardens and guards even while engaged at work in the factory. The selection of the particular convicts who were to labor under the appellants contract and of the class of labor which each one was to perform was made by the warden in obedience to sec. 467 of Art.-27 of the Code.

The appellant erected the elevator for the convenience of its manufacturing operations with the consent of the prison authorities. It stood against the outside of the south wall of the factory building and communicated with the interior of the building at its second and third floors. It was an ordinary freight elevator constructed inside of a frame of timbers and it was erected by James Bates an experienced builder of elevators. After Mr. Bates had finished the elevator the appellant caused it to be entirely sheathed with boards on its east and west sides and to be similarly sheathed on its north side from its top down to within about nine feet of the ground.

There were windows in the sheathing on the north side through which, and the opening below them, the position of the elevator could always be seen from the yard on that side of the structure. ⁴⁰⁹ The elevator was raised and lowered inside of the sheathed frame by a wire cable which was operated from a drum located inside of the factory building. This drum was set in motion and stopped by means of two shifting ropes, which were so connected as to form an endless rope, suspended inside of the west side of the elevator sheathing, where there also hung a check rope by pulling which the elevator could be stopped at any point. At the place where these ropes hung a hole was cut through the sheathing four or five feet above the ground and within a few inches of the factory building. There was a positive conflict of testimony concerning the size and purpose of this hole and the possibility of operating the elevator through it by one standing outside of the sheathing.

Five witnesses for the appellee of whom three had operated the elevator and the other two had often seen it in operation testified that this hole was only used to tap a signal bell, that you could barely get one hand through it and that it was impossible for one standing outside of the sheathing to operate the elevator through the hole. They further testified that the elevator was always operated from inside of the sheathing and that when it was in the upper part of the frame it was necessary to stand underneath it to pull the shifting ropes to lower it. The appellee further testified that when he was first assigned to operate the elevator the appellant’s manager explained to him how to use it and in doing so went inside the sheathing underneath the elevator and from that position pulled on the shifting ropes to lower it? and walked out before it reached the ground and also told him that there was no danger in it; and that Marshall who oiled and cared for the elevator told him that it had safety clippers on it and it would not fall if the cable broke or slackened. Seven witnesses for the appellant all of whom had either operated the elevator or frequently seen it in operation flatly contradicted the appellee’s witnesses as to the possibility of operating the elevator from the outside through the hole in the sheathing, and said that it not only could be operated in that manner with ease and safety but that it was currently so operated. ⁴¹⁰ After the contract between the appellant and the prison authorities had been in operation for sometime the appellee was; convicted and sentenced to the penitentiary for manslaughter and was assigned by the warden to labor under that contract.

He was at first put to work inside of the factory, but was in November, 1891, assigned by the warden to operate the elevator, which he continued to do until February 27th, 1893, when having gone inside of the sheathing for the purpose of lowering the elevator the latter suddenly fell upon him and dislocated his spine and greatly injured him. Immediately prior to the accidenta convict named Peacock, who had also been assigned by the warden to work in the appellant’s factory, was bringing a truck down on the elevator from the third to the second story. When the elevator- had nearly reached the second story he jumped off, but through his careless handling of the truck it was jammed between the second floor of the factory and the descending elevator which was thereby stopped and held fast. The drum continuing to revolve the cable was slackened and when the truck was extricated the elevator fell upon the appellee.

The elevator was provided with safety pawls, operated by a spring, which were intended to automatically enter ratchets on the guide posts of the structure and prevent the elevator from falling if the cable should break or slacken, but the appliance failed to do its work in this instance. A convict who was on the second story of the factory when the truck caught the elevator testified that he then called down to the appellee to get out from under it, but the appellee testified that he did not hear the call. The appellant, for the purpose of explaining the failure of the safety pawls to operate at the time of the accident, proved that immediately after the accident an iron plate on the elevator, which had held in position one of the four guide wheels intended to keep the elevator in line with the guide posts, was found to be broken. Bates a son and successor in business of the builder of the elevator, and Marshall who had charge of keeping it in repair and Williams who had charge of the machinery in the factory all testified that, in their opinion, a shock ⁴¹¹ such as the elevator would have received from being caught when descending by a truck on a floor of the factory would have been sufficient to break the iron plate and throw the elevator out of line with the guide posts and prevent the safety pawls from operating.

There was also evidence which will be hereafter noticed touching the current inspection of the elevator and its condition on the morning of the accident. At the trial of the case the appellee as plaintiff offered four prayers all of which were granted, the first being granted in connection with the defendants prayers. The appellant as-defendant offered nine prayers all of which were either conceded or granted, except the first and second one designated A- The plaintiff’s first prayer in effect instructed the jury that the'plaintiff was not guilty of contributory negligence in going underneath the elevator at the time of his injury if it was necessary for him to do so in the ordinary and usual performance-of the duty of operating it, if they further found that he had been assigned to that duty as a convict in the penitentiary and' was compelled to obey such assignment. The defendant excepted specially to this prayer, because there was no legally sufficient evidence to sustain it, but we think the learned judge below did right in granting it.

We are the better satisfied of the correctness of his action in that respect, because he granted it in connection with the defendant’s prayers which-instructed the jury that the plaintiff was guilty of contributory negligence if they believed that he might have operated the-elevator' from the outside without going under it, or that before he went under it at the time of the accident he saw that it was caught by a truck at the second floor, or that after he-got under it he heard calls to him to stand from under it, andi did not heed them. The plaintiff’s second prayer is the one which raises the cardinal issue in the case. It is as follows : “The plaintiff prays the Court to instruct the jury that it was the duty of the-defendant, the Baltimore Boot and Shoe Company, to use ordinary care and diligence in keeping the elevator used by it in repair, and if they shall find from the evidence that the ac ⁴¹² ■cident resulting in injuries to the plaintiff, Jamar, occurred by reason of a defect in said elevator which defect could have been discovered and remedied by the defendant previous to the accident by the use of ordinary care and diligence in inspecting said elevator, or if they shall find that the said accident happened by reason of an improper method of construction of ■said elevator, and shall further find that the plaintiff was in the usual, ordinary and proper discharge of his duties as the conductor of said elevator when hurt, then their verdict must be for the plaintiff.” . The defendant excepted specially