Baltimore & Ohio Railroad v. Belinski

Pear-ce, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court upon a verdict awarding the plaintiff $500 for damages caused by injuries received on the 28th day of June, 1905, through the alleged negligence of the defendant. The single exception was taken to the refusal of the Court, at the close of the plaintiff’s testimony, to grant the defendant’s prayer instructing the jury that there was no evidence legally sufficient to show that the accident complained of resulted directly from any negligence of the defendant or its agents, and that their verdict must be for the defendant. The only evidence offered was that of the plaintiff himself, his wife, Mary Belinski, and George Weglewitch, who was assisting him in his work at the time of the accident.

The plaintiff was engaged with other laborers in unloading loaded freight cars, and his leg was broken and he was severely injured by the fall of a heavy piece of timber from the car he was about to unload. The accident occurred on Pier No. 8 of the Baltimore & Ohio R. R. in the harbor of Baltimore. Two gondola cars loaded with timber were standing on the single track laid upon this pier, and the timber was to be transferred to a vessel moored alongside of the pier, the space between the track and the vessel being about fourteen feet wide. One of these cars was nearly unloaded, when the plaintiff was directed by the man in charge of the force, to superintend the unloading of the other car.

The sides of these cars are about four feet high, and the timber in them was piled about four feet above the sides, the pieces being twenty-four feet in length and fourteen inches in diameter, some square, and some round, and were held in place by four standards on each side of the car, seven feet high and four inches square, the ends of which were inserted in iron sockets on the sides of the cars; these standards on the opposite sides of the car were fastened together by wire, and in order to unload the car it was neces~ sary to cut these wires, and remove the standards from the sides of the car. The plaintiff and a fellow-workman, Victor Krauss, began the work as directed by the foreman, who gave ⁴⁵⁴ plaintiff no instructions as to how the work should be done, but told him he was the car man, and left the method to him. Krauss cut the wares connecting the standards on the opposite sides of the cars, and the plaintiff removed three of the four standards upon that side of the car next to the vessel. During the removal of these, no work was done in unloading the other car which was ahead of that on which plaintiff was working.

The fourth standard was jammed in the socket, and plaintiff and Krauss were unable to pull it out. Plaintiff then asked Krauss for an axe, and with it struck the standard twice between the two iron sockets in which it stood. Upon his examination in chief, he said he wanted “to cut it short and make easy work,” and “to unloosen it somewhat in order to take it out;” but upon re-direct examination he said the axe was a fireman’s axe with a pick on one side, where the head of an ordinary axe is, so that he could not use that side to dislodge the standard; that the blade side was used to cut iron with, and was dull and blunt; that he did not attempt to chop or cut the standard out, but only to loosen it, and to effect this he struck two upward blows with the dull side of the axe upon the standard, between the two sockets, so as to loosen it, and drive it upwards out of the sockets. While he was engaged in the