Leland v. Empire Engineering Co.

²¹⁰ Boyd, C. J., delivered the opinion of the Court. The appellant was employed as a salesman by John O. Lewis, who represented in Baltimore City manufacturers of contractors’ supplies and pneumatic tools. Frederick W. Gaw was the sales engineer of the manufacturers. Pier No. 9 belonging to the B. & O. R. R. Co. had burned to the water’s edge and was being rebuilt by the appellee.

Amongst other things those manufacturers sold wood boring machines and spike driving machines. Their representatives had two wood boring machines and one spike driving machine at the office of the McLean Contracting Company, which was rebuilding Pier No. 8, and Mr. Howden, who was superintendent and chief engineer for the appellee, proposed that they give a demonstration of the wood boring machines on Pier No. 9. Mr. Howden carried the wood boring machine and Mr. Gaw carried the spike driving machine, and they and the plaintiff went out on Pier No. 9 for the purpose of having the demonstration. The piles had been sawed off evenly at the water’s edge and there were stringers upon the piles, running parallel with the shore, of different lengths but having a uniform breadth and thickness of one foot.

Upon some of the stringers there had been erected upright posts about six feet high and one foot square. The upright posts were temporarily nailed to the stringers by 20-penny nails. At yarious intervals there were also what are called “dummy clusters,” which were a number of piles covered with caps, making a kind of platform. The distance between the stringers was about six feet, and that between the dummy clusters and the stringers was from four to five feet.

There were planks a foot wide from one stringer to another to walk on, but as the planks were not in line they Went in a zig-zag sort of way- — after going over the plank they would walk ou a stringer to reach another plank and in doing. so> would, as claimed by appellant, have to get around the post. The appellant said that in getting round the posts, which were of the same width as the stringers, they would have to ²¹¹ take hold of them to balance themselves. Air. Howden took the lead, Air.

Gaw followed him, and the appellant followed him. The appellant testified that as he was about to g'o around a post he took hold of it and it fell, throwing him into the Water and he was very seriously injured, either by the post falling on him or his coming in contact with other materials. He claims that the post which fell was not properly fastened and that it was negligence in leading them into such a place. A trial of the suit he brought resulted in a verdict for the defendant and from a judgment entered thereon this appeal was taken.

The defendant contended that there was. a walk in the center of the pier of two planks in width, that there was no occasion to go around the posts and that the post which fell was fastened as the others were., hut that the appellant undertook to jump from one place to another, grabbed tbe post and fell with it. Air. Howden testified that, he told Mr. Gaw to put the machine he had on a dummy cluster, which he did, and told the appellant to wait there, but without his knowledge he started to come on. They were going to a point, where the demonstration was to take place which would be convenient to connect it with a tank of compressed air.

Thera are four hills of exception, the first two of which are in regard to the admissibility of evidence, the third embraces an offer made by counsel for defendant in the presence of the jury, and the fourth presents the rulings on the prayers. The plaintiff produced in rebuttal Air. Edward J. AHonaghan, an expert, who testified that he was in charge of rebuilding Pier 8 which was alongside Pier 9, and was being-rebuilt along the same principles as Pier 9. The attorney for the appellant asked Mr. Aionaghan whether he was in Court and heard the testimony as to how the posts were secured, and after stating that, he was, he was then asked: “Would you consider those posts, sufficiently secured to make it reasonably safe for a man to walk on the stringers and pass around the posts to get over on the other side of the stringer ?” ²¹² That was objected to and ruled out. — the ruling-being presented by the first bill of exceptions.

The appellant had testified that they had gone around approximately fifty posts and Mr. Gaw said possibly 25, or may be 30 or 40 posts before the accident, and neither of them spoke of any of- them being insecurely fastened except the one. The appellant testified that he followed Mr. Howden zig-zagging in and out from many of those posts. He was asked: “How did you find those posts.,” and answered, “They were absolutely fast. We had already passed numbers, of them.” The Court then asked him: “Approximately how many posts had you passed ?” And he replied: “Abo-ut fifty in finding this place where we were to go.” Again, he said: “Yes and as I passed numbers of posts I took particular care to watch my steps and reached out to take hold of those posts as the others did and there was no giving way at my hands-with the posts I had passed, but with this particular post the whole thing gave way with me.” Then this is in his evidence: “Q. These other posts that you passed around, did you grab a hold of them in the same manner as you did this particular one that caused the accident?

A. Yes, ás that was the only way you could get around. You had to steady yourself to go around them and then put your arms around that way (indicating) * * *. Q. And as I understood you to- say, you got around this post the same way as the others, and the others were absolutely fastened ? A. Yes, they were absolutely right and fastened securely.” Mr. Gaw testified that as he was passing the post where the accident occurred he noticed that it was unsteady and as he turned to warn the appellant he was falling into the water with the post.

He said that after the accident: “I called to Mr. Howden and Mr. Howden came over to me and I remarked to Mr. Howden, why didn’t you warn us that this post was unfastened. And he replied that it was possibly left unfastened by mistake.” With such evidence before the Court and jury we-cannot understand upon what theory the question in this exception could be admissible. It did not require an expert to ²¹³ prove that a post left unfastened was- not sufficiently secured to make it reasonably safe, 'and the plaintiff proved that the other posts were absolutely right, and fastened securely. In the second exception Mr. Monaghan was asked: “Is that the usual and approved method of doing it,” and answered: “We try to fasten them with heavier nails than that.” Upon being told to first answer, yes. or no, and then give his reason, he asked to have the question repeated, and, after that w’as done, replied: “There are different methods of doing that work and I do not care to make any statement about what the other man does.” Then this follows: “(The Court) : Simply say whether or not that is the general approved method of securing those posts ?

A. That is one preliminary step which some people take. (Mr. Ashman): “What in your opinion is the approved and usual method of doing' it? (The Court.) : Is there any general approved method of doing it? A. The methods differ.

Q. Then there is. no similar approved method ? A. E"'o. Q. Does this method of securing these uprights to the stringers lie in the judgment of the man. doing the work ? A. Yes, and according to the plans and specifications and the engineer in charge of the job.” The Court then said: “I will change my ruling and strike out the opinion of Mr. Monaghan and his answer now stands this way: There are different and various methods of securing the uprights adopted by different and various huildersi, and that is all he has to say.” There could he no possible injury to the appellant resulting from that ruling.

There was nothing material in what was said by Mr. Monaghan, and beyond that the question raised by appellant really was whether the post had been fastened at all. If it was not, the evidence offered was wholly immaterial, and the jury could infer whether the falling of this one was the result of negligence on the part of the defendant, as the plaintiff had proven that all of the others were absolutely right and fastened securely. There was., therefore, no reversible error in either of those exceptions. The taking of testimony was concluded about Noon, on December 13th, and after argument on the prayers the jury ²¹⁴ was discharged until 10 o’clock the next morning, when the Oourt convened and the jurors took their seats in the jury "box.

Mr. P'oe, of counsel for defendant, arose and while standing at the trial table, in the presence and hearing of the jury, addressed the Oourt as follows: “If it please your Honor, we have just discovered two eye-witnesses to this accident, one a white man named William Barringer, a master mechanic no longer in the employ of the defendant, but now with Bartlett Hayward Company, and the other a colored man still in the employ of the defendant. We can have the colored man in Court within about an hour and the master mechanic within two or three hours-. It was through no fault ■of ours that we did not discover those eye-witnesses before. It would prove a great injustice to us if we were denied the privilege of putting these witnesses on the witness stand to testify in support of our side of the case.” Mr. Poe, at the •suggestion of the Court, dictated to the stenographer, who was absent when the motion was first made, out of the hearing of the jury, his application, which is set out in this record hut need not be repeated in full in this opinion, although different somewhat from the offer quoted above, hut not in substance.

When the stenographer completed a record of this renewed •offer, the Court called the stenographer and counsel to him, .and quietly and out of hearing of the jury had the record read to the Oourt by the stenographer. Then the Court told counsel to take their places at the table and simply announced in the presence and hearing of the jury that the Court would refuse the request of the defendant’s counsel. Counsel for the plaintiff made no statement within the hearing of the jury, but quietly stated to the Court that they did not believe that the case should be delayed in view of what the record showed. The bill of exceptions concludes: