Baltimore & Ohio Railroad v. Charvat

McSherry, C. J., partially concurring. In my view this case ought to be reversed without awarding a new trial. I think the second prayer of the defendant ought to have been granted. Judges Fowler and Page concur in this view.

Jones, J., delivered the opinion of the Court. This case was brought, by the appellee here, in the Court below to recover damages for injuries received by him in consequence of the alleged negligence of the appellant, a railroad corporation, under circumstances appearing in the evidence. The appellee was an employee of the Merchants’ Coal Company and at the time of the accident causing his injuries he was employed on the wharf of that company in unloading coal from the.cars of the appellant and pushing it with a crowbar into a chute in the wharf through which it was received into a scow of the coal company. Coal was delivered by the appellant on the wharf of the coal company in cars which were run upon the wharf so as to stand directly over the chutes.

The cars are described in the evidence as large iron cars and are so constructed that they can be opened from the bottom to let the coal drop into the chutes. Large lumps of coal coming from the car would stop up the chute and prevent the coal from going into it. To prevent this and to keep the ⁵⁷³ opening through the chute clear for the admission of the coal as it came from the car it was necessary that these large lumps of coal should be punched or pushed into the chute as they fell from the car. There were upon the wharf in question three tracks which were used by the railroad (appellant) in delivering coal there.

The length of the wharf, as given by one of appellant’s witnesses, an engineer, who testified that he measured it, is 573 feet including some trestle work that runs back over the land and its width is 36 feet. According to the same witness it is 420 feet from “ where the wood structure begins to the place where the chutes are.” The three tracks upon which the appellant operated its cars upon the wharf were, according to testimony on the part of the plaintiff below (appellee here), from three to four and a half feet apart, from five to six feet in width and the space between the outer track on either side of the wharf and the outer edge of the wharf from three to four feet. The cars projected over the track on either side so that when cars were passing, on the middle track, cars on either of the other tracks, the space between the cars was diminished by the amount of this projection of the cars over the two tracks. The space between the cars when opposite each other was according to the plaintiff only sufficient to admit of passing between them “side ways.” According to the testimony on the part of the appellant there was space enough between the cars for a man to walk down between them and the men did go along between them for the purpose of coupling the cars.

It appeared further in the testimony on the part of the appellant that the length of thé cars was from 36 to 38 feet; that the weight of one of the cars which were being put upon the wharf at the time of the accident, and which caused the injury to the appellee, was 32,000 pounds and of the other from 25,000 to 26,000 pounds, and when loaded with coal, as they were- at the time in question,-one would weigh about 40 tons and the other about 20 tons ; that the width of a car was about nine feet, and the projection of the car on either side over the track from one to two feet. The testimony of one witness upon the part of the ⁵⁷⁴ appellant, which that of others tended to corroborate, was that by actual measurement, the width of a car was found to be nine feet, the width of space outside of the tracks on the western side of the wharf four feet six inches ; on the easternmost side four feet eight inches ; the width of tracks on the wharf from outside to outside of rails five feet one inch ; space between tracks from rail to rail five feet nine and one-half inches ; thus making the projection of the cars, on either side, over the track one foot eleven and one-half inches, and the space between cars opposite each other on the middle and either of the side tracks one foot ten and a half inches. Appellant’s witnesses also testified that the cars were put upon the wharf by orders of the foreman of the wharf or notification of the yard master of the appellant company who gave the orders to the conductor; and that if the yard master is not there the conductor receives the orders direct from the foreman and they are put on the wharf by his (foreman’s) orders. The wharf is higher than the level of the land from which it is built out.

As one of the witnesses expressed it the cars have to go up “ a hill ” to be placed upon the wharf. The mode of putting cars upon the wharf is to attach an engine to them, take them a short distance out on the tracks of the railroad and then run them back with the engine with sufficient speed to push them up on the wharf where the cars are detached from the engine and proceed, by reason of the incline of the wharf or the momentum acquired, along the track to the proper position over the chutes—their motion being controlled by the brakes. Going upon the wharf the course of the cars described a curve around a house which stood near the point where the cars would go from the land upon the wharf, and intercepted a view of the wharf so that those in charge of the cars when they were being forced upon the wharf as described could not see anything thereon. Upon the occasion in question here two cars loaded with coal and of the size and weight already mentioned were pushed, in the manner described, upon the wharf and down the middle track.

There was evidence on the part of the ⁵⁷⁵ appellee that there was a custom with the employees of the appellant when cars were being “shunted” in this way upon the wharf to send a brakeman ahead of the cars with a lantern to give warning to persons on the wharf of their approach, and that on the occasion in question there was no man and no light on the cars that caused appellee’s injuries when they were “ shunted ” upon the wharf. According to appellant’s testimony there was no such custom ; and it was also in evidence on the part of the appellant that when these cárs were pushed upon the wharf they were in charge of a brakeman who was upon the rear end of the car, which was in front going upon the wharf, in a position to work the brakes. This brakeman had a lantern but he testified that it was so placed on the cars as not to serve any purpose of a warning to persons ahead of the car on the wharf as it could not be seen. It is not claimed that any warning of any kind of the approach of the cars that injured the appellee was given.

Cars were all the time being put upon the wharf at frequent intervals day and night; and appellee testified you could never tell when they were coming. When these cars were being unloaded the evidence was that there was great noise made by the coal falling from the cars. The appellee testified that the accident happened at eight o’clock at night on August 17th, 1899 ; that it was very dark and that there were no lights on the wharf. Appellee also testified that he had been in the service of the Merchants’ Coal Company and employed steadily upon this wharf for four or five years.

At the time of the accident to the appellee he was engaged with other’ parties in unloading a car standing to the right, (looking towards the water end of the wharf) of the middle track and was on the left side of the car being unloaded and next to the middle track. In his work he was using a crowbar weighing as he testified, about six pounds and long enough to reach to his forehead when he was standing up. He was working under the car that was being unloaded with his back towards the car that struck him and, as seems to be conceded in the case though that does not expressly appear in ⁵⁷⁶ the' evidence, he had his left foot and leg partly on the middle track. While he was in this position the cars that caused the injury to the appellee after being shunted upon the wharf as has been described, proceeded down the middle track and caught his foot and leg under the wheels of the car causing a very serious injury.

In the course of the trial below seven exceptions were taken to testimony in the case by the appellant, three of which have been abandoned. The appellant also excepted to the action of the trial Court upon the prayers which makes the eighth and the most important of the exceptions presented here for consideration. This last exception will be noticed first. It goes to the granting of three instructions asked for' by the appéllee and to the refusal of the trial Court to grant the first, second, fourth, fifth and sixth prayers offered by the appellant and to an instruction granted by the Court in lieu of the appellant’s fourth, fifth and sixth prayers.

There was no error in the rejection of the first and second prayers of the appellant. The first sought to withdraw the case from the consideration of the jury upon the ground that there was no evidence legally sufficient to show that the injury to the appellee “was directly caused by the negligence of the appellantand .the second sought to do the same upon the ground “that by the undisputed evidence in the case the negligence of the plaintiff (appellee), directly contributed to the injury sued for.” In both of these aspects of the case it was proper that the evidence should be submitted to the jury for their finding thereon. The care which the law exacts of a defendant in a case like this is the care which a person of ordinary prudence would, or ought to, use finder the circumstances of any given case to avoid injury to -others ; and it is relative. The degree of care to be observed depends upon the necessity for it which arises out of the circumstances.

Now in this case it is obvious that the operation of the defendant’s (appellant’s) cars upon the wharf in question was attended with danger to those' who had occasion to be upon thé wharf when they were being so operated. This appears ⁵⁷⁷ from the facts already recited as being in evidence. In addition to these, it is also in evidence that but a few moments before the cars that injured the plaintiff were pushed upon the wharf the