Eyre-Shoemaker Construction Co. v. MacKin

Stockbridge, J., delivered the opinion of the Court. This is an action to recover damages for personal injuries received by Joseph Mackin, the appellee, while acting as ⁶⁰ Captain of a scow for the appellant, the Eyre-Shoemaker Construction Company. The record presents a number of questions arising under twelve exceptions taken to rulings of the Court upon the admissibility of evidence, and one to the action of the Court upon the twenty-six prayers which were offered by the parties at the' conclusion of the testimony; but in the view which we take of this case it will be sufficient to deal with only a few of them, those involving the application of the legal principles which govern all actions of this character. At the conclusion of the entire evidence the defendant, by its first and second prayers, asked the Court to take the case fro-m the jury, upon the ground of the lack of sufficient evidence.

In this case, as in all other such cases, the foundation of the right to recover lies in some act of negligence, either of commission or omission on the part of the defendant, or its omission in the performance of some duty owed by it to the plaintiff. What then are the facts as disclosed by the record tending to show the negligence of the defendant or its failure of duty? The Construction Company was engaged in building concrete piers on Watson’s Island for the Baltimore and Ohio Railroad bridge across the Susquehanna river. The materials used in construction were brought by rail to a place called Erenchtown, about one mile north of Perry-ville, and from there transported by scow to the .Island.

Mackin was employed by the Construction Company as Captain of the scow used for such transportatioan. The method of transferring the materials from the railroad to the scow was by means of a hoisting engine, which operated a derrick, and to this was attached a boom, passing over the end of the boom from the drum of the engine was a cable to which could be attached iron receptacles or buckets, into which the materials were loaded, and when so loaded the bucket was raised clear of the ground by means of the hoisting engine, swung over to the scow, lowered into the scotv and unloaded. On the morning of the seventh of Eovember, 1907, the scow ⁶¹ was taken to Frenchtown. The material to be transported consisted of cement in hags, each bag weighing approximately 100 pounds.

As soon as the scow was made fast to the wharf Mackin proceeded to pump out the water which had collected in the bottom. The hoisting engine, which was what is known as a Mundy engine, was located some thirty-five or forty feet from the edge of the wharf, but between the engineer who operated it and the scow1 there was a pile of stone sufficiently high to render it impossible for the engineer, when at his post, to see a person on the scow, or for a person on the scow to see the engineer. Accordingly there was stationed at the end of the pile of stone a signal man, whose duty it was when the bucket had been loaded at the car to give the signal to the engineer to raise and' swing the bucket around until over that portion of the scow where it was desired to have the load deposited, and then by a signal to- direct the lowering of the bucket and the stopping of it for the purpose of unloading. The hoisting apparatus consisted of two drums, around one of which passed the end of the cable, and' thence to the top of the boom, and on to the bucket.

The revolutions of this drum were controlled by means of what was called the friction, that is, a cone composed of wood specially prepared, which by means of a lever was forced into the drum when it was desired to raise or hold a load, and released when the object was to lower the load; there was also on this particular engine a foot-brake, the purpose of which was to afford' a means of still further checking the revolutions of the drum. It was also in evidence that this foot break was deemed as an extra part of the engine, and not always attached since the same end could be accomplished through means of the friction. The engine was provided with a gear guard, and there was some evidence to show that this gear guard was not in place upon the morning of the accident; that, however, may he disregarded for the reason that it does not appear from the evidence that the absence of the gear guard would in any way have affected or prevented the accident. The engine stood ⁶² and was operated in the open, without shed, covering or protection of any kind, either to the engine or any of its parts.

On the morning of November 7th, the scow was towed to the Erenchtown wharf, and some half hour was consumed' after its arrival there in getting up steam in the boiler before work could be begun. A bucket had been left attached to the cable the night previously, and as soon as steam was gotten up, the bucket was raised from the ground where it lay, swung over to the car, where some thirty or thirty-five bags of cement were placed in it, and then swung around to the scow. The plaintiff was at the stern end of the scow, and §.s the bucket approached him it sucldenly dropped, and' swinging too far, struck the plaintiff, throwing him to the deck, and severely'injuring him. The bucket was stopped by the engineer when about one foot above the deck, with the plaintiff pinned between the bucket and the deck.

Such being the salient facts it becomes pertinent to examine the evidence tending to establish negligence, and to ascertain whether such negligence was the negligence of the defendant -Construction Company, or whether it was the negligence of a fellow servant. There is'no question raised' in the case as to the competency of the engineer. This differentiates the case at once from the case of McCall’s Ferry Power Company v. Price, 108 Md. 96 , where the evidence showed that the superintendent of the work had knowledge that the engineer was incompetent prior to the happening of the accident. It is manifest that the place in which the plaintiff had his duties to perform was a dangerous place, inasmuch as there were required to be continually passing over the scow heavily laden buckets with loads of from 3,500 to 6,000 pounds, but this danger was open and obvious, and was, therefore, one of which the plaintiff must be treated as having assumed the risk, and for any injury resulting from danger of the place he has no claim against his employer; ⁶³ Gleason v. Syskin, 110 Md. 141 ; Harris v. Con.

Coal Co., 111 Mel. 225. The type of engine used for the work was usual and appropriate for work of this description, the same that is used by many contractors. This was fully established by the evidence and was not attempted to be 'controverted. The engine was not new, but bad been inspected by Mr. Bowles about two days before the accident, and found to be in proper shape, and there is nothing in the evidence to suggest that Mr. Bowles was not a competent inspector, he being the man who put the engine up, and whose duty it was to keep the machinery of the defendant company in proper condition.

To entitle the plaintiff to recover in an action such as this, it is not sufficient to show that the plaintiff was injured from a defect in the machinery, but he must go further and establish the fact that the injury happened because the employer did not exercise proper care in the premises. Buttner v. Steel Car Co., 101 Md. 168, 178 . Kor can it be held to constitute negligence per se upon the part of the employer that the engine was run exposed to the weather. Dettering v. Levy, 114 Md. 273 .

The testimony in the case is not only to the effect that engines of this type frequently are so run, but that they are built for the very purpose of being so run. The fact that they are sometimes enclosed or covered over either in whole or in part, cannot make it negligence to operate them in the open, something more than this must appear. There remain, then, three possible matters upon which negligence may be predicated, (1) the fact that the gear-guard was missing, and (2) that the foot-brake did not work, and (3) that by reason of a rain the night previous the friction was wet, and slipped or failed to hold. With regard to the first of these, the fact that the gear guard was missing was disclosed in the testimony of Blose, the engineer; hu1 he further testified “the geai-guard being off had nothing particular to do with the working of the engine.” and the purpose of the gear-guard is explained in ⁶⁴ the evidence of the witness Higgins, who was employed by the Mundy Co., which manufactured the engine and his evidence is to the effect that when the machinery “is idle the part of the friction that is used that goes into the cone is covered by the gear-guard.” There is nothing, therefore, to show that the absence of the gear-guard on this particular engine had anything to do with the occurrence of the accident.

(2) The engineer Blose testified that the foot-brake wouldn’t work on'the first day when he tried it on loads, and that he “at once reported it to Mr. Bowes, who said he knew it wouldn’t work, but no one repaired it.”