Clark Bros. & Co. Ex Rel. United States Casualty Co. Ex Rel. Henkelman v. United Railways & Electric Co.

Adkins, J., delivered the opinion of the court. This is a suit by the employer for the use of the Casualty Company, which was required to make certain payments to an employee under the provisions of the Workmen’s Compensation Act, and for the use of the employee to the extent of the excess of any verdict found by the jury over and above the total of such payments. The employee, Henkelman, was injured while driving a one horse wagon in the car tracks on the right side going West on Lombard Street between Eutaw and P'aca on the evening of October 28th, 1918. His wagon collided with a trouble wagon of the appellee standing in front of its trouble station on the north side of Lombard Street.

He .testified that he did not see the trouble wagon because it was dark and the wagon had no lights on it. He said “as I was opposite this wagon an object protruding out there struck me a blow and went right straight through my foot to the front of the wagpn; it struck, I suppose, a foot and a half almost directly in front of the wagpn and pinned my foot to this object like.” His wagon was on the left of the trouble wagon and he was sitting a little to the right of the center of the seat of his wagon at the front. The protruding; object pinned him to the front of his wagon. The object that struck him was a jumper track. “A jumper trade is the covering they have to cover over a fire hose * * * this impact was so great ¹⁶¹ it struck my foot in the wagon, and the jar of the thing was so great it unbuckled the shaft on the right-hand side of my wagon; these shafts are1 fastened with a patent fastener; this impact going up> against there, the jar was so great, and of course the impact unfastened the snap and the shaft on that side dropped down and veered the wagon in, and the shaft— not enough to break it, it just come unbuckled.” “That is what caused the shaft to become unbuckled was the impact of the thing up there; the shaft never broke, but it come unbuckled by this great jar.” The projection was from the rear of the trouble wagon towards the left.

It was standing still. Witness does not think the trouble wagon was plumb up against the curb1 — ho did not got out to look at it — witness was driving slowly and carefully. On cross-examination witness was asked: “Q. How could this object you have been talking about before the court and jury catch you in the leg when you were seated if you were in the tracks of the company? A. This truck or wagon or whatever it happened to be was sitting off at an angle, and' that is one way it could have got in there; this had been swerved like and this hose jumper, the position of the thing was at an angle, and the hose jumper just, smack got on my foot as I was going by; the position of the thing made it parallel with the front of my wagon.

Q. Can you explain why the horse’s head did not. run into it before it got upi to you, if it. was there ? A. That is hard to explain why it did not hit him, hut this thing probably was in motion; when it came back it might have slipped, such a, thing was possible; it might have moved after the horse got past it. Q. Nobody was on the truck, was there? A. No, sir; but those trucks are very heavy trucks and might have slipped; such a thing was possible.

Q. Did you seethe truck move? A. No, sir; I did not see it move, but that- is the only solution of it, Q'. Was there sufficient' room in going past that wagon in the position it was standing, the trouble wagon, to pass it?1 A. No, sir.” ¹⁶² There was no other witness to the accident offered by the plaintiff. One witness who saw the occurrence testified for the defendant, viz.: Charles L. Radulovieh, an employee of the Baltimore Dry Docks, who was a,t the time of the accident sergeant in camp utilities, Camp1 Meade.

He saw the accident and explained it as follows: He was on Lombard street going west on the north side about fifteen or twenty feet from the trouble station. The wagon of Henkelman was going west on the westbound track of the United Railways Co. “1 first noticed as I got, I said, about 20 feet from the station— that is the comer of'Paca — there is a United Railways station there — and I noticed a wagon sort of wobbling, and I noticed also something was wrong with it.” “The horse was going west on Lombard 'Street, and as he got near this thing the wagon veered from-the track, the horse remained practically in the track, but the wagon hit this trouble wagon, and I ran over to see what the trouble was.” “The truck that had the jumper or whatever was in it was facing west on the north side of Lombard Street, p'arallel with the car tracks.” It was “right up1 against the curb.” “Q. Was this truck with which this man collided at an angle on the street ? A. Absolutely not; it was level with the curb. Q|.

This jumper you speak about, was it projecting over and out on the tracks of the railroad company or not? A. Absolutely it was not. The jumper is probably three feet from the tracks, pointing east. Q. Did the accident, as a matter of fact, occur while the horse and wagon was in the westbound trade ?

A. No, it could not. He had to leave the tracks to have the accident occur. The coupling or something on the shaft gave way and that is what caused the wobbling, and it had to leave