Ericsson Line, Inc. v. Hawkins

Sloan, J., delivered the opinion of the Court. This appeal is taken from a judgment against the defendant, Ericsson Line, Inc., sued as tort-feasor by another’s employee (Code, art. 101, sec. 58), who- had been awarded compensation for an injury sustained at the defendant’s pier in Baltimore. There were two exceptions in the record; the first on an objection taken to a question toj Dr. Edwin D. Weinberg, asking whether the plaintiff’s injury was permanent, which was renewed by a special exception (overruled) to so much of the plaintiff’s first and only prayer as submitted this element of damage to the jury; the second exception to the rulings on the prayers. The defendant asked an instructed verdict on two grounds; one for legally insufficient evidence of negligence, the other,, contributory negligence, so that it is necessary to review the evidence. ²²⁵ Joseph M. Hawkins, plaintiff,, who sues for himself, and for the use of the State Accident Fund, insurer, while in the employ of Hart & Clark Transfer Company, as a truck chauffeur, drove his truck to the pier of the defendant to pick up a shipment of three steel ship channels, which weighed 425 pounds each, and were twenty feet long.

After backing up the truck to the pier, plaintiff went to the defendant’s office to pay the freight bill. While he was doing this the defendant’s stevedores had loaded two of the channels on the truck. As Hawkins was going back to the truck, the stevedores were bringing the third channel off the boat on a hand truck, but instead of taking it to plaintiff’s truck, as they had the first two, they threw it on the floor. When Hawkins saw what they were doing he told them not to throw it on the floor, “to bring it right over to the truck, because it was easier to put it on, but they threw it on the floor anyhow.” He testified that Mr. Lang, the defendant’s pier superintendent, said, “What did they do that for, they know better than that.” “I said, ‘well, I told them not to throw it on the floor.’ So with that they went and got this here foreman of the stevedores, Captain Dick, who ‘called these two colored fellows over and to¡ the one with a hand truck he said “Pick that thing up * * *” and when they picked it up the third one went and put the truck under it and, as he did, one of them let go and the other men couldn’t hold it, and it come down and it hit the truck and bounced over,’ and fell on and injured his foot.

He said he did not give the three stevedores any orders or directions. ‘Captain Dick gave them instructions and told them to pick it up. When he told them that I stepped back out of the way. When they started picking up 425 pounds, no: one can’t hold that, you know these fellows couldn’t hold it. I jumped away and when I was pinned up against the pile of ladders I couldn’t get back no further.’ ” The defendant contends that in the facts as here related there is no evidence of primary negligence, because, as stated in its brief, “When the bar was dropped, the ²²⁶ expected happened, it bounced on the hand truck and on the plaintiff’s foot”; in other words, he had voluntarily placed himself in a position of obvious danger (Cooley on Torts, [4th Ed.] sec. 489; People’s Bank v. Morgolofski, 75 Md. 432 , 23 A. 1027 ), a conclusion with which we do not agree.

He might have felt, as he testified, that the load was too much for the stevedores to handle, but, if that belief was well founded, the work, according to his testimony, was undertaken and partly performed by the defendant’s employees. If there was any failure in the means employed, this would be evidence, for the jury, of a lack of that degree of care and caution which the plaintiff had the right to expect. The evidence offered on behalf of the defendant was that the stevedores were the fellow servants of the plaintiff, and it was no part of thir duty to load the plaintiff’s truck. William W. Lang testified: “The Ericsson Line, of course, pays these stevedores for the time that they spent working on the consignee’s shipment. * * * Neither Mr. Hawkins or I gave any orders to them as toj how it should be done.

I was about thirty feet away and it was my duty to watch this work. * * * I got the stevedores out of the gang and turned them over to Mr. Hawkins.” A comparison of the testimony of Hawkins and Lang discloses such a