Crawford v. United Railways & Electric Co.

Pearce, J., delivered the opinion of the Court. This suit was brought for the recovery for personal injuries ⁴¹¹ sustained by the plaintiff while in the discharge of his duties as a conductor upon one of the cars of the defendant company. The car in question was an open summer car with nine seats for passengers running across the car, and with a foot-board upon each side used by passengers in entering and leaving the car, and by the conductor in taking up the fares, that being the only means of passing from one end to the other while the car was in motion. The plaintiff’s injuries were caused by the breaking of a hand hold attached to the side of the car, and provided for the use of the conductor in stepping up and down from his position on the rear platform to the foot-board, it being necessary for him to use this particular hand hold for that purpose.

There were a number of other similar hand holds to aid passengers in entering and alighting, and to aid the conductor in passing along the foot-board. When he first used this particular hand hold to step down from the platform on that morning, it pulled off and he was thrown violently into the street and received severe injuries to his knee and back. On the morning of the accident, September 16th, 1903, the plaintiff was assigned by one of the officers of the company to car No. 275, and left the northern terminus of that line at Druid Hill Park at six o’clock for the first run of the day to the southern terminus at Fort McHenry. This run was made without incident, the car running on the right or west track going south and the foot-board and grip handles on that side of the car next the pavement being exclusively used until Fort McPIenry was reached.

There the trolley was reversed, the rear end of the car became the forward end, and the foot-board and the grip handles on the right or east side of the car going north on the east track, being next to the pavement, were exclusively used until Druid Hill Park was reached. The plaintiff testified that during the return trip from Fort McHenry to Druid Hill Park he was on the foot-board, but did not have occasion to go and did not go, upon the rear platform until he was approaching and near the car barn, when he stepped up as he was required to do upon the rear platform to get his manifest which is kept there, for the purpose of ⁴¹² going to the register in the forward end of the car to enter upon the manifest the fairs registered in "the run up. That during the run up, and while on the foot-board, he used every grip handle-on that side of the car except that at the rear platform, but did not use that until he attempted to step with his manifest from the rear platform to the foot-board, when it pulled off and threw him down upon the street as stated; that in stepping up on the platform he used the post to which the handle was attached, but in stepping down he could not use the post, and was obliged to use the handle; that the step down from the platform to the foot-board was about eighteen inches and the foot-board about eight inches wide; that the handle was attache'd to the post by two screws through aplate at the bottom, and ran through a socket at the top, and that there was no visible defect in the handle or its attachment before the accident, and that he had never, to his knowledge, used that car before; that the car when assigned to him, was not in the car ' barn,, but was upon a track on the street, called the dead track. He also testified positively that there was no collision or- contact with any obstacle, either during the run to Fort McHenry, or on the return run to .Druid Hill Park.

Lawrence Hayden testified that on the morning of the accident he was in front of the car barn on the corner of Retreat and Francis streets, and as the car was approaching the barn, saw the plaintiff step down from the rear platform, and as he stepped, he went headlong in the street between the curb and the track; that he got up and hobbled down on one leg with the handle bar in his hand; that he (witness) examined the car a few moments later, and found that the post to which the handle bar was attached, was cracked near the plate at the bottom ofthehandle; that there was One bent brass screw still in the handle, and one screw was broken off and the handle bar had a dent or bend, in the lower part. . This witness was at that time a conductor on the. defendant’s line. This was the plaintiff’s case. Dennis Sheehan, the superintendent of this line of cars, testified for defendant, that instructions for conductors and mo ⁴¹³ tormén were posted in the car barn, and that they are required to report any accident or defect in a car, when it is turned in at night; that he received no report the previous night that this car was out of order, and knew nothing of any defect in it, until after this accident; that there was a night inspector whose duty it was to examine all cars turned in at night, before being put in service in the morning, and if any defect is found, to hang a shop sign on the car showing it is not to be taken 'out.

The motorman in charge of car No. 275, the night previous to this accident testified that he finished his run at one o’clock at night, and turned in this car in perfectly good condition for service. Hubbard,' foreman of the car barn at that time testified that it was Kenny’s duty to inspect every car in the barn, and every car on the dead track at night and report the result to him in the morning, and that he received no report of any defect in car No. 275. He also said, “sometimes when the cars are 'not put in the barn, they stand on that dead track. When the barn does not hold them, or for any reason, we want a supplemental place to leave them, we place them on these dead tracks.

I have seen as many as a dozen there over night. It is usual for cars to be on the dead track; if we have room enough in the barn we don’t use the dead track. All the cars go in, and when the barn is full we leave them on that track; there is room in the barn for the cars that come in early, and the last cars coming in at night are those that stay on the dead track.” Kenny, the inspector, testified that he was on duty the night of September 15th, 1903, and inspected every car in the barn and on the street; that he inspected car No. 275 and found it in good condition, at 2.30 A. M., and that he used a lamp with a reflector, which shows him any object or part of the car he wants to see and that if there is any defect he is sure to see it. That in the barn they do not need and do not use, this lamp, and use it only on the street; that there were twelve cars on the street that night, all of which he inspected ⁴¹⁴ after those in the barn.

That in the course of his inspection he took hold of each grip handle on each car, and swung his weight with both hands on each handle, and tested in that manner that handle of this very car and was prepared to say there was no crack in that handle that night; that he was engaged in inspecting that night from seven o’clock until 4.30, and that' during that time he swung his body on each handle of ninety cars, there being twenty-eight handles on each car. He said he saw the handle bar in question the night after the accident, and that it then “was like something had hit it when moving. The screws looked like it was broke out; it was not from the pull of the conductor, it was hit by something.” This closed the testimony, whereupon the plaintiff offered three prayers which were rejected, and the defendant offered two which were granted, as follows: “The Court instructs the jury that there is no legally sufficient evidence in this case to entitle the plaintiff to recover, and therefore their verdict must be for the defendant.” 2nd. “The Court instructs the jury that the defendant could delegate the duty of the inspection of the car,' and as it appears from the uncontradicted evidence that the defendant appointed an inspector, and as there is no evidence that he was incompetent, there could be no recovery in this case, unless the jury should find that the defendant had actual notice of the defect before the accident, and as there is no evidence of actual notice of the defect before the accident, the verdict must be for the defendant.” The plaintiff’s first and second prayers are framed upon the theory that it was defendant’s duty to provide a car safe in every respect, at the time when plaintiff was assigned to it, and that if it was not, at that time, a reasonably safe place for the performance of the duties required of the plaintiff, and defendant knew, or might have known, this, in time to make it safe, if reasonable care hadbeen taken to inspect the carat a proper time and place— orto protect the car from injury in the interval between the inspection, and its assignment to the plaintiff as a place for him to work on, then the plaintiff was entitled to recover. The plaintiff’s third prayer was the usual prayer as to dam ⁴¹⁵ ages where the case goes to the jury, and needs no consideration, but we shall request the reporter to set out the plaintiff’s first and second prayers in full.

The case was ably argued, and the appellee relied mainly upon three leading cases in Maryland upon the law of master and servant, viz: Wonder's case, 32 Md. 416 ; Hanrathy's case, 46 Md. 281; Hamelin's case, 57 Md. 307 , as conclusive; and, if in the present case, the master can be held to be free from negligence in the performance of any positive non-assignable duty, causing the plaintiff’s injuries, and these can be held to be exclusively due to negligence of the car inspector in the discharge of his delegated duty, then it must be conceded there was no error in the ruling on the prayers, for the reasons assigned in the three cases above, and other decisions in Maryland which might be cited. We have detailed all the evidence in the case at unusual length, in order that it may clearly appear why we think it does not fall within the class of cases illustrated by the decisions mentioned, and must be governed by other principles than those there applied. Ever since the decision in Wonder'scase, it has been settled in Maryland, that where injury was the consequence of the incompetency or neglect of a fellow servant, or where the evidence wholly fails to disclose the origin of the defect causing the injury, the master is not liable to his servant, it not appearing that he has been guilty of negligence, either in selecting the fellow servant, or in providing the machinery in which the defect occurred. It was settled also in this State, by the same decision, that all who serve the same master and are engaged in the same general business, though it may be in different grades and departments of it, are fellow servants, each taking the risk of the other’s negligence.

In that case, Judge Alvey said, “It follows therefore that the brakeman on the train (the plaintiff) is in the same common employment with the mechanics in the shop to repair, and keep in order, the machinery, and with the inspector of the machinery and rolling stock of the road, and the superintendent of the moving of trains.” ⁴¹⁶ Hanrathy's case presents the same general features as in Wonder's case, and is governed by the principles there enunciated. Hamelin’s case when decided was thought by some to have strained the doctrine of Wonder’s case, but in Yates v. McCullough Iron Company, 69 Md. 380 , it was carefully considered, and sustained, and has since been frequently cited with approval by this Court. In Hamelin’s case the deceased was engaged in the erection of an iron bridge, under the direction of a skilled bridge builder who was superintendent of the work. His death was caused by the negligent use by the superintendent of a plank in a high scaffold, cut tod short for safe use, and carelessly allowed to rest upon greased iron rails designed to support one of the bridge s'pans, instead of resting as it should have done upon the cross pieces of the scaffold, and a strenuous effort was made to discriminate that case from Wonder’s case, but Judge Alvey said: “All the cases agree in holding that there is no obligation on the part of the master to give his own personal- supervision to the execution of the work, but that he may delegate that power to a superintendent or foreman and it is held by all the English cases, and by a decided preponderance of those in this country, that such superintendent or foreman, is a fellow servant within the rule, and that the omission or negligence of such superintendent or foreman is among the incidents of the service, and the risk of which the servant assumes upon himself, as between himself and the master, when he enters the employment.” It is not, and could not be, contended that there is any evidence in this case of the incompetency of the car inspector, nor indeed that he was guilty of any negligence in th'e mere inspection of this particular car on the night preceding the accident, and therefore we have said that if the defendant was free from negligence in the performance of any positive, nonassignable duty causing the plaintiff’s injury, the ruling upon the prayers was correct, and this brings us to to the inquiry