Baltimore & Ohio R. Co. v. Davis

Adkins, J., delivered the opinion of the Oourt. Charles W. Davis, the plaintiff, a railway postal clerk employed by the United States Government, was injured on December 18th, 1924, while assisting in closing a defective door of a railway mail car, Ho. 137, belonging to the defendant, the Baltimore and Ohio Railroad Company. He was substituting for another postal clerk, named Carrico, who, while working; on this car the night before, had taken cold because he could not close one of the doors, of the car. Plaintiff testified that he was in sole charge of the car and had a run out of Washington on the afternoon of December 18th; that the ear was operated over the tracks, of the defendant and bore the name “ ‘Baltimore & Ohio,’ that the mail that was to be placed in the postal ear in question included all ordinary parcel post and paper mail, either in bags or parcels that were too large to. put in bags, both of which are stored in the car; * * * that in loading the storage car at the terminal point, such as Washington, the car is supposed to-be loaded as nearly solid as practicable, with all doorways closed except such doorways as are needed to load and unload mail en route along the line; that there were three doors on each side of the car and a door at the end; that the mail was loaded in the end door on one side of the car, the ⁴²⁹ middle doors on both sides of the car were supposed to be closed and mail loaded solid against them; hut that the sliding doors in the side were double doors both ways; that, in. order that the side doors may slide when the car is loaded, there must be something to- keep the doors from going back against anything that may be in the car and interfere with its operation; that to prevent this there is a niche mad© and a false wall put on which allows the door to slide into this pocket, so that mail and boxes can be piled up against the pocket and the door will still slide back without any interference; that the doors slide both ways, one door, one way and one the other; that these sliding doors have a little knob on the inside that protrudes about five-eighths of an inch; that it is “sufficient plenty” to catch under the keeper that holds the door from slamming open in case the car was hit; that this door with the knob on it, when the ear is in proper condition, slides back behind the false wall without in any way touching the wall. “There is a loose catch back in this wall that has a bevel on the side of it that when this knob comes hack it slides that bevel, which raises the ridge until it gets hack to the- notch, which is straight down, and then the catch drops down over this knob which holds the door closed; and if anything may strike the car, the door is bound to stay where it is.

That is the object of tbis catch on the door, so that it would not slam shut and injure any one who might be in the door.” That witness had never worked on this car before, as it was only used for emergency purposes for a storage car for Christmas mail; that the false wall was steel, the same material as the rest of the car; that witness had been in the car five minutes before the accident occurred and was siipervising the loading of the car; that he told the porters to- close the end door; that he was probably three minutes going around chalking the car designating places where mail for different places was to> be put; and during that time the porters had been trying to close this door; that ho told them to leave this door open and close the other door, and they went to the side door to close it, and this was the door at which witness was hurt. “The porter takes hold of ⁴³⁰ the door. I had informed him that I had been informed that this door would not close the night before. On this account he used special effort on this account to' open the door. He grabbed it, and of course used all the strength that he had, and pulled the door, which would be really closed, pulling out from in the false wall; and he pulled it so hard that it pulled by a stick that was in the centre of this double door, which is supposed to stop this door when it gets there; but this stop evidently is faulty, because the door pulls clear past the stop, and leaves a place of about probably eight inches over against the other door. * * * He takes hold of the door and starts to pull it back.

It is stuck so tight that he does not succeed in moving. I put my hand against the wall and put my other hand against the door to assist him in pushing it back * * * against the false well * * *. Another porter is standing here. He also' pushed on that door, and pushed it against this door, which shoves it against my finger. * * * The knob of this door caught my finger where it struck exactly on the face of this false wall.

The knob that should have gone entirely behind the wall strikes the false wall, * * * because this false wall is caved in. * * * It was caved in when I noticed it. Of course I did not notice it when I put my hand against it, or I would not have put my hand there. It was caved in gradually.” Witness had been in the car about five minutes when the accident occurred. “We had been at this door probably half a minute; not more than that; no time for any examination.” Witness 'further testified that if this false wall had been true and straight it could not possibly have touched his finger. On cross-examination he said the work of bringing in the mail was done by the porters who work at the Union Terminal, and witness designated the points at which it was to be piled; there were probably half a dozen colored porters; Hr.

Callahan came in just about the time the accident happened; Callahan was foreman at Union Station: “I know he is the man in charge, looking after the things necessary to be done about cars, looking after fixing the water coolers, and anything that has to be done about the car, he is usually ⁴³¹ oil the job.” That if Callahan was there before, witness has no recollection of it. Witness was asked about a statement he had signed for a claim agent, in which it appears that Callahan was present and that witness had sent for Callahan to see about the door; that “no one asked me to assist in getting the door back, that is pushing it back, but I just volunteered to assist, as I had sent for Car Foreman Callahan to look at the door owing to it being defective.” There was at the foot of the statement, written by plaintiff, “I have read above and Hud it O. 3L” The witness said he made a statement to the agent, but did not read what he had written. “Mr. Steel was there, and with the pain that I had, and everything else connected with it, I was very much worried and would have been awfully glad to get rid of him. I signed it to get rid of him. * * * I cannot state that I sent for Car Foreman Callahan. After we had worked at this end door, as I stated before, which we could not close, I said to the boys, ‘We will have to have some one close this door ■ — not the door we were at later.

That was the door between the two ears. And one of the boys probably went after Mr. Callahan, which would be a most natural thing. I did not say, ‘Mr. Callahan’; I said, ‘Some one to close the door.’ ” “Q. Did you look when you put your hand there? A. Mo.

Q. You put your hand there without looking? A. Yes, because I knew the condition of those cars. I knew where it is safe to put your hand and where it is not safe to put your hand.” L. A. Carrico testified that he came early on Car Mo. 737 on December 17th, and told some railroad man, in the station when he came in, of the condition the doors were in; that witness told plaintiff that the car was in bad shape, that the door could not be closed; witness did not know what was wrong or what was the cause of it, but he could not close it. Arthur L. Van Horn, superintendent of the railway mail service, testified that the Baltimore and Ohio Railroad Company, on December 18th, supplied to the railway ⁴³² mail service, for the use of transporting storage mail, car Ho. 131 of their line.

So far as the record shows, Howard W. Marshall was the only witness offered by defendant. He testified that he was assistant baggage agent of the Washington Terminal Company, with offices in Union Station at Washington; that if a defective door of a baggage car is reported to him or to any one in his department it is the duty of the car department to fix the door; that Mr. Oallahan is the foreman of the car department; that there is no duty on the postal clerk to fix the doors; that witness does not know how often the cars are inspected. Plaintiff offered three prayers, the first and third of which were granted. The first instructed the jury that the care required of defendant in protecting plaintiff while engaged in his duties as postal clerk in its mail ear was that due to a passenger on its trains, so far as compatible with the performance of his duties as postal clerk, and that this includes the obligation to furnish mail cars with suitable doors and to keep them in repair and condition that they could be safely opened and shut with reasonable facility, and in this respect it was required to exercise the highest degree of care.

The third prayer was a measure of damages prayer and seems to be unobjectionable, if the case was to go to the jury. The defendant offered twelve, of which the seventh, eighth, ninth, tenth and eleventh were granted. The first five asked for a directed verdict on the grounds of: (1) Lack of evidence generally; (2) lack of evidence that the door or doors complained of were, at the time of the accident, operated or controlled by the defendant; (3) contributory negligence; (4) lack of evidence that defendant failed in the performance of any duty it may have owed plaintiff as alleged in the declaration; (5) lack of evidence under the pleadings— variance prayer. The sixth asked for an instruction that there was no evidence to show the responsibility of the defendant for the alleged negligent act of the employee of the Washington ⁴³³ Terminal Company in the operation of the door or doors of the car complained of, and that if the jury found the said negligent operation of said door or doors to be the sole cause of the injury complained of, their verdict should’ be for defendant.

The twelfth presented the proposition that, if the accident ■complained of was caused by the action of the plaintiff in attempting to open or close the door or doors of the ear, and if there were present in said car men whose duty it was to open or close said door or doors, and if it was not incumbent upon plaintiff to assist in the opening or closing of said door or doors, the verdict should be for the defendant. The only bill of exception in this case relates to the ruling on the prayers. The real contention of defendant is that the case should have been taken from the jury either on the ground of lack of evidence of negligence on the part of the defendant, or because of contributory negligence on the part of the plaintiff. And the reasons for these contentions, as stated by defendant in its brief, are: (1) That at the time of the injury plaintiff was undertaking wrongfully to transcend the duties of his position; (2) that this wrongful act of plaintiff and not the alleged defective condition of the door was the proximate cause of the injury; (3) that even if the door was defective and even if the act of opening or closing this door had been required of plaintiff as a part of bis duty, he would still he barred from recovery by contributory