Buttner v. South Baltimore Steel Car & Foundry Co.

Fowler, J., delivered the opinion of the Court. The plaintiff who is the appellant in this case was employed by the South Baltimore Steel Car and Foundry Company as assistant brakeman and to couple cars in its yard. While in the performance of his duty he was injured, as he alleges, through the negligence of his employer, and he brought an action in the Superior Court of Baltimore City to recover damages as a compensation therefor. At the close of the testimony of the plaintiff, he being the only witness produced to sustain the allegations of his narr. the learned Judge below, at the request of the defendant, withdrew the case from the jury.

Judgment having been entered in favor of the defendant the plaintiff has appealed. The only question, therefore, presented is whether the plaintiff offered any testimony legally sufficient to entitle him to recover. In order to determine this question it will be necessary, of course, to make a careful examination of the testimony, which, however, is embraced in very narrow limits, only one witness, the plaintiff himself, having been examined, as we have seen. It appears that the defendant company is engaged in Balti ¹⁷⁶ more in the manufacture of steel cars and for that purpose has a factory and a yard attached thereto in which cars containing castings are moved from place to placé.

The plaintiff testifies that his duty as assistant brakeman was to couple cars and that before he was employed by the defendant he had been for eight months with the Baltimore and Ohio Railroad acting as brakeman and engaged in coupling cars but that the couplings used by the railroad were automatic; that on the 23rd day of September, 1903, while trying to make a coupling he was caught between two cars; that one of the draw-heads (sometimes called bumpers) project out about six .or eight inches; that two of them coming together, through defective construction, drew.the draw-head back through the sill which caught him in a position where there was only a space of two and a-half to three inches; that he became unconscious and dropped out towards the side when the cars were separated; that he was up in the office of the defendant when he recovered consciousness; that the distance between the sills when in a proper position and the cars are coupled would be from 18 to 20 inches. The witness continued in answer to various questions asked him by his counsel to testify as follows: that the wood of the sill was rotten and the bumper or draw-head “went right through that and it caused” him to be caught between the sills of the cars; that he could not see any defect in the draw-head; that “it was a defect in construction;” that he had never been warned about the old casting cars the defendant used in its yard. In regard to the nature of his injuries the plaintiff testified that he was in bed the evening of the day of the accident and the next day;- he returned to his work with the defendant on the third day after he was injured and remained there for two weeks when he was discharged because he could not perform the duties as he had done before he was injured, and that he was still suffering from the effects of the accident! Now if this were the only testimony in the case, perhaps, the plaintiff would have had good grounds to complain of the action of the Court below in withdrawing the case from the jury. ¹⁷⁷ But the cross-examination of the plaintiff shows clearly that almost all he knows is that he was injured between the two cars and rendered unconscious, and that when he regained consciousness he found himself some distance from the scene of the accident in the office of the defendant.

The theory which it was sought to establish by the plaintiff’s testimony appears to be that the cause of the accident was “defective construction’’as the witness several times thus described the alleged defect in the coupling, draw-heads or bumpers, and said that on the occasion of the accident both of these draw-heads were pushed back through the rotten wood of the sill and under the car, so that the space where he was standing was reduced from 18 to 20 inches to a space of 2 or 3 inches. But on his cross-examination it was discovered for the first time that on the occasion of the accident he had noticed nothing about the condition of the draw-heads on the particular cars he was coupling. It was some days after the accident that two of his co-employees pointed out to him two cars which were coupled so as to leave only a few inches between them. He was informed these were the cars which injured him.

It further appears that all the plaintiff’s testimony relative to the condition of the draw-heads was based