County Commissioners of Prince George's County v. Timmons

Walsh, J., delivered the opinion of the Court. This appeal is taken from a judgment of the Circuit Court for Prince George’s County in favor of the appellee, who sued the county commissioners of that county for damages for injuries sustained by him when the Brooklyn Bridge, situated on the outskirts of the town of Laurel, collapsed. The suit was originally brought against the Mayor and City Council of Laurel, a municipal corporation, as well as against the appellant, The County Commissioners of Prince George’s County, on the theory that the location of one end of the bridge within the limits of the town of Laurel rendered the town equally responsible with the county commissioners for the proper construction and maintenance of the bridge, but the trial below resulted in a judgment against the county commissioners alone, and it is not contended on this appeal that any responsibility for the injuries complained of rested upon the Mayor and City Council of Laurel. It appears from the record that in August, 1924, the appellee was a laborer employed by one John Sadilik, and that Sadilik was engaged in operating a threshing outfit, consisting of a traction engine, thresher, and water barrel.

It was the practice in that locality to1 move this outfit from farm to farm for threshing purposes, and the appellee, his employer, and three colored helpers, were engaged in such a movement when the accident complained of occurred. On August 27th, 1924, they threshed wheat on the faim of Mr. Herman Millard, spent the night there, and on the following morning left the Millard farm to go to- the farm of Mr. William Thorp, which was about a mile and a half away. The most direct route between these two farms was along a road which crossed ⁵¹⁵ the Brooklyn Bridge', and when the traction engine, with the thresher and water barrel attached, got on this bridge, it collapsed and precipitated the threshing outfit, together with the appellee and Sadilik, who were on the engine, to' the water below. As a result of this fall, Sadilik was killed, and the appellee sustained the injuries for which this suit was brought.

It also appeared that at the time of the accident the appellee was steering the traction engine and Sadilik was firing and running it, and that the appellee had received some warning from Mr. Millard the night before that the bridge was unsafe for such an outfit as the appellee was working on. It further appeared that the bridge was what is known as a one-span bridge, that the iron work on the bridge was badly rusted, that some three years before a new flooring, weighing approximately twelve tons, had been laid over the old flooring^ and that no engineer had been consulted as to the ability of the bridge to safely carry this additional weight, and there is also testimony tending to show that the county commissioners knew, or by the exercise of due diligence could have known, of the defective condition of the bridge, and, by the exercise of similar diligence, could have repaired it before it collapsed. There are seven exceptions in the record, the first, second, third, fifth and sixth involving rulings on evidence1, and the fourth and seventh having been taken to the action of the learned court below on the prayers. The first exception was taken to the refusal of the trial court to strike out the appellee’s statement that Sadilik had told him he had crossed the bridge1 in question with a threshing outfit.

The appellant contends that this testimony was intended to show that threshing outfits constituted part of the usual and ordinary travel over the Brooklyn Bridge, and being, in this view of it, hearsay, was inadmissible. On the other hand, the appellee' insists that the testimony was intended to showr that he had information that similar outfits had gone over the bridge, and so was competent on the question of his contributory negligence, which was an issue in the case. Both of these views seem sound, and as the testimony ⁵¹⁶ was admissible for one purpose, and the appellant failed to ask that it be limited to that purpose, wo cannot hold that its admission was reversible error. In addition to1 this, the witness Wooten testified later that he had actually driven across this bridge with Sadilik about three years before on the same outfit on which the appellee was riding when injured, so that no substantial injury could have been done the appellant by admitting the testimony objected to.

The second exception was taken to the refusal of the trial court to permit the witness Eleister to testify on cross-examination _that he had advised Sadilik of the unsafe condition of the bridge. The ’appellant contends that this testimony was admissible on the theory that the alleged negligence of the employer Sadilik, in crossing the bridge, and in permitting his employee to cross it, after he was warned of its condition, can be imputed to his employee, the appellee. To this .we cannot assent. The appellee’s rights in this ease do not grow out of his status as an employee, they are his personally andi individually, and we are unaware' of any principle of law by which an employer can, without the knowledge or consent of his employee, deprive the latter of his right to sue for damages for injuries inflicted upon him by the negligence of a third person.

It was held by this Court in Western Md. Rwy. Co. v. Shatzer, 142 Md. 286 , that “where a carrier transports the employees of a telegraph company under a special contract, a provision in the contract, exempting the carrier from liability for injuries to such employees caused by its negligence, is valid, but it is not binding on an employee who has no knowledge of the contract.” Tf an employer cannot directly waive his employee’s right to recover damages for injuries caused by the negligence of a third person, we do not think such waiver can be accomplished indirectly by imputing the contributory negligence of the employer to the employee, unless the latter in some way 'acquiesced or participated in it. Here the alleged contributory negligence of the employer consisted in his failure to heed a warning as to the safety of a public bridge, and, as the employee had no knowl ⁵¹⁷ edge whatever of this warning', it would be manifestly unjust to hold him hound by it. Counsel for the appellant admit-that their theory is a novel one, but they allege that it is sustained by the decision in the case of Lundergan v. New York Central and Hudson River Railroad, 203 Mass. 460 , and that they have been unable to find any decisions holding a contrary view.

A careful reading of the Lundergan caso shows that, -although some of the language used in the opinion might be construed as giving support to the views of the appellant, the case itself does not establish the rule contended for by the appellant, and as such a rule would, in our opinion, be contrary to the most elementary principles of justice, we must- decline to adopt it. We accordingly find no error in the ruling covered by the second exception. The witness Wooten, -after having testified that he had driven several threshing outfits over the Brooklyn Bridge, was asked if he knew of anyone else who had over driven an engine over the bridge, and he replied: “I have? never seen it, but Mr. O’Neill threshed there, -and I guess he went that way, I suppose.” The appellant thereupon moved to strike out the words “1 suppose” in the witness’ answer, and the overruling of this motion is the basis of the third exception. There is no doubt that this ruling was incorrect, but wo do not think the error sufficiently prejudicial to warrant a reversal.

Had the motion been directed to the entire answer a more serious question would have been presented, but as the granting of the motion would still have left the “guess” or conjecture of the witness before the jury, we do- not feel that the failure to strike out the added words “I suppose” could have affected the result of the trial in any substantia] way. The fourth exception brings up for review the action of the trial court in refusing to- grant the defendant’s first prayer, asking for a directed verdict at the conclusion of the plaintiff’s case. Even had the C’ourt committed an error in refusing to grant this prayer, the appellant waived it by proceeding to take testimony and going on with the ease, ⁵¹⁸ and it cannot now complain of the ruling. Cohen v. Herbert, 145 Md. 203 ; Washington County v. Gaylor, 140 Md. 379 ; Krymski v. Kupidlowski, 139 Md. 656 ; Baltimore Car Wheel Co. v. Clark, 131 Md. 516 ; Bernstein v. Merkel, 126 Md. 454 ; Knecht v. Mooney, 118 Md. 583 ; Pennsylvania Railroad Co. v. Cecil, 111 Md. 288 .

The fifth exception was taken to the refusal of the court to strike out the statement of the witness Donaldson, “that at the joint meeting between the Mayor and City Council and the county commissioners at the site of the wreck, that the county commissioners acknowledged their responsibility of it.” And the sixth exception was taken to the refusal of the court to grant a. renewal of the motion to strike out this same testimony and the following comment of counsel for the appellee upon it: “Your Honor, I did not produce it, but I am very glad it got in. If the County Commissioners of Prince George’s County have a meeting at the scene of the accident and all the commissioners present, and in public meeting they acknowledge their responsibility for an accident, it seems to me that is competent to go to the jury in a case where they are being sued for damages.” After the taking of the fifth exception, and after the above quoted statement of counsel was made, the witness, Donaldson, was examined and testified in part as follows: “Q. Mr. Donaldson, did the county commissioners a.t that meeting say to you that if any damages were recovered against the town that they would be responsible for them? A. No. Q. They did not say that— A. No. Q. They were not discussing that phase of it at all? A. How is that?

Q. They were not discussing that phase of it at 'all ? A. If I understand what the meeting was for — and I think I do — it was to have an understanding between the town of Laurel and the county commissioners as to who was responsible for this bridge — as to who was responsible for this bridge and who owned this bridge? Q. Aid they said it was their bridge? A. It was their bridge.

Q. Did they say that they were themselves responsible for the happening of this accident? ⁵¹⁹ A. Absolutely no. Q. They said uo? A. Why, of course not. Q. They simply said that as between the Town of Laurel and the county commissioners, that that bridge belonged to the county commissioners?

A. Exactly so. Q. They said nothing about being responsible for the happening of this accident? A. Why, no.” Counsel for the appellant then renewed the motion to strike out the testimony, which was the subject of the fifth exception, and also asked that the quoted comment of appellee’s counsel be stricken ont. Thereupon the court, speaking through Chief Judge Digges, said: “The witness ha:s explained what he meant by it.

It is perfectly clear what the witness has said, that what the county commissioners said was that it was their bridge, that they built it and they were responsible for the maintenance of it. This witness said that the county commissioners did not recognize, in his presence, any responsibility for this accident.” According to the record, counsel for the appellant then excepted to the court’s refusal to grant the motion above mentioned, and this refusal, as we said above, constitutes the sixth exception. The appellant’s obj ection to this testimony is based on the theory that it was simply the statement of one or more of the individual members of the board of county commissioners, made at an alleged informal meeting, and so cannot be used to officially bind the board, but in the view which we take of the matter it will not be necessary to pass upon that question. It is apparent both from the