Cumberland Coal & Iron Co. v. Scally

Bowie, O. J., delivered the opinion of this Court. At the trial of this cause below the appellee offered but one prayer, which was granted with a modification by the Court; the appellant submitted twenty-one prayers, the first, second, third, ninth and tenth of which were after-wards withdrawn; the fourth, fifth, sixth, seventh, eleventh, twelfth, fifteenth, seventeenth and nineteenth were rejected; the eighth and fourteenth were granted ⁶⁰⁰ with provisos, and Mie rest as originally offered. The appellant exeeptéd to the rejection and modification of its prayers, and to the granting of the appellees as modified. The gravamen of the narr. is certain injuries sustained by the appellee whilst employed as laborer by the appellant, in the course of which service, in descending a heavy grade of the railroad of the appellant, in a train of gondola or open cars, with other laborers, under the direction of a conductor, the appellee was thrown out and severely wounded.

The appellee’s prayer claimed the right to recover if the “ injury were caused by either the want of ordinary sldll and experience on the part of the other hands in charge of said train to manage and conduct the same, the plaintiff himself using all the diligence of which he was capable in that behalf; or by any obvious defect or insufficiency that might have been discovered by ordinary care in said cars or any of them, or in the 'machinery and appliances for controlling and governing the same, at the time of placing the same on the road to be worked by the plaintiff and others with him, and which defect or insufficiency (if. any) was unknown to the plaintiff and which rendered the said cars unsafe, for the particular use or employment; or by the want of a locomotive engine under the management of an engineer of competent sldll to conduct doion said train, if the rislc of running said cars down the grade of said road without a locomotive engine was dangerous.” Which prayer was granted with this modification: “ Provided he can prove to the satisfaction of the jury by evidence, that the defendant did not use reasonable care in the selection and employment of the foreman, who conducted said cars, and that the said cars were not of approved construction and material, and selected by persons who were not of competent skill and judgment for the purpose.” The modification of this prayer seems to us substantially to embrace the doctrine announced by ⁶⁰¹ this Court in the case of O'Connell vs. The Balto. & O. R. R. Co., 20 Md. Rep., 222 , in which all the most recent cases of liability of employers to employees for injuries resulting from negligence were reviewed, and the following conclusions announced, viz : “ When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible. The liability to injury of one from the carelessness of his fellows, is but an ordinary risk, against which, the law furnishes no protection, but by an action against the wrongdoer. Though it is the duty of railroad companies to exorcise all reasonable care in procuring for their operation sound machinery and faithful and competent employees, and, though they are liable to their servants for the neglect of this duty, yet after they have procured such machinery and employees, they are not liable to a servant for the injuries occasioned by the neglect of any of their co-servants employed in the same general business of operating the road.” 23 Penn. Rep., 386, 387 ; 32 Verm.

Rep., 473 ; 4 Metcalf Rep., 49. The granting of the appellee’s prayer as modified, is objected to, because, as it is said, it submits facts of which there was no evidence, and which were positively disproved. Several examples of which are enumerated : 1st. That the plaintiff was employed as a miner, and was placed and detailed to work at the