Maryland Clay Co. v. Goodnow

Briscoe, J., delivered.the opinion of the Court. This.suit was brought by the appellee against the appellant • to recover damages for an injury alleged to have been sustained by him, through the negligence of the defendant. The appellant is a. corporation duly incorporated under the laws of the State and conducts a kaolin plant near the town of North East, in Cecil County. At the time of the accident it was engaged in the business of refining clay and operated a railroad and cars for the purpose of carrying clay from the pits where it was dug to the works where it was refined..

The plaintiff was employed by the company as a laborer for the purpose of unloading the clay from its cars and while so employed was knocked off the car where he was at work and was permanently injured by.being run over by a wheel of one of the defendant’s cars. ³³⁹ The declaration contains three counts. The first avers that the defendant had constructed its railroad in a defective and improper manner, and that by its negligence the end of the track upon the trestle of the road was unguarded by a bumper, or any device whatever, to prevent the cars, upon which it was necessary for the plaintiff to work, from being thrown over the end of the trestle. The second count avers that by the negligence of the defendant the cars used by it upon its railroad were without brakes or other contrivance of that nature, which the defendant knew but of which the plaintiff was ignorant. The third count alleges that the accident was due to the combined causes alleged in the first and second counts.

The defendant pleaded not guilty and the judgment being in favor of the plaintiff, the defendant has appealed. It will be thus seen that the contention of the appellee in this case is, first, that the accident was due to the absence of a bumper at the end of the trestle, and second, to the failure of the defendant to have brakes upon the cars carrying the dirt trains. There are a number of questions raised by the rulings of the Court on the prayers presented at the trial below but we only deem it necessary for the purposes of this case to consider the action of the Court in rejecting the defendant’s first prayer, and that reads : “There is no evidence of any such negligence on the part of the defendant in the discharge of its legal obligations to the plaintiff as entitled him to recover in this action.” This prayer, which was rejected by the Court below, raised the question of the legal sufficiency of the evidence and of the right of the plaintiff to recover, under the evidence, in the case. It appears from the evidence that the plaintiff had been employed as a laborer by the defendant company from September, 1896, to April 21st, 1898, but during the construction of the railroad trestle had been employed to work around the company’s sheds together with other workmen in loading and unloading cars at its koalin works.

It further appears that the defendant operated a railroad and cars for the purpose of ³⁴⁰ carrying the clay from the clay pits, which were located in the nothern part of the company’s property, to the sheds or works in the southern part, where the clay was dumped from the cars to be refined ; that in transporting the clay from the pits to the works it was necessary to cross the tracks of the P. W. & B. Railroad which passed east and west through the defendant’s property, and that the defendant’s works were located between the North East river and the tracks of the last mentioned railroad. A bridge had been built over the railroad tracks and a trestle from the pit above the railroad to the bridge, and from the bridge to the sheds below the railroad. The clay was hauled from the pits to the works on the river, “in cars drawn by an engine over the tracks which crossed the railroad on a bridge about thirty feet high and then to the works, where the cars were unloaded; that the tracks below the bridge are located on a trestle which is about thirteen feet high and terminating about 427 feet below the bridge, there being an incline from the bridge to the river of about 300 feet, the grade being about six feet, but that the track was level for the rest of the distance to the end of the trestle “that across the tracks at end of the trestle there was at the time of the accident an ordinary railroad cross tie fastened by ropes to keep the cars from being thrown over the end of trestle, the cross tie being six by eight inches.” The plaintiff testified that on the evening of the 20th of April “he went to the pit and helped to load four cars, and went from the pit home leaving the cars standing there ; that on the morning of the 21st he returned to the works and found four cars standing at the same place where he had before unloaded them, and he and the other workmen, two others, climbed up to the trestle and began to unload; that these cars were standing on the track the last car reaching to the end of the trestle; that he and the other workmen had unloaded two of the _cars' and were unloading the third ; his back being toward the bridge, when suddenly, a fellow workman, who was facing the bridge, threw his shovel down áná ³⁴¹ leaped from the car; that he turned and saw the train of five cars descending the track from toward the bridge and within six or eight feet from the train in which he was working, that he turned in an effort to escape, but at that instant the leading car of the descending train struck the train in which he was working and he was thrown head foremost from his car, falling with arms across the iron rail of the track ; that one of the cars of the stationary train ran over his arm, crushing it so that it had to be amputated up to the shoulder; that he was at the time unloading the third car from the end of the trestle, so that there was a car between him and the descending car train.” The evidence further shows that the dirt train which was in charge of workmen employed by the defendant company was hauling dirt and dumping it into the trestle south of the bridge. This train was composed of an engine and five cars, only two of the cars had brakes, and one of these was broken; that small blocks of wood, about two inches thick, were used by the train men to block the wheels in the place of brakes.

As soon as the engine was detached and the first dirt car was dumped the jar started the five cars down the incline (the brake and the blocks not being sufficient to hold the cars) and struck the stationary train, where the plaintiff was at work, and injured him. At the time of the accident, there were four men with the train named Parrott, Lynch, Page and an Italian. A workman named Moore had charge of the dirt train and it was his duty to keep the machinery in repair. The dirt train was made up according to Moore’s orders, and he directed the particular cars to be used, and told the workmen to use short blocks of wood six or eight inches long to hold the cars on the incline while the dirt was being dumped from the cars ; that the company had twenty cars and five of these had brakes.

Now we do not consider it necessary to review the testimony at length, nor to discuss it in detail, because we think, it clearly appears from what has been stated that the immediate and ditect cause of the accident was the absence of brakes on the ³⁴² dirt train, operated by the defendant. There can be no difficulty in this State as to the rule of law applicable to a case like this where a servant sues his master for injuries resulting from the negligence of a fellow servant. All of the cases hold that one of the risks which the servant takes upon himself when he enters the service of a master is the negligence of fellow servants. The law upon this subject has been fully considered by repeated decisions of this Court.

Wonder v. The B. & O. R. R. Co., 32 Md. 411 ; State v. Malster & Reaney, 57 Md. 287 ; Yates v. McCullough Iron Co., 69 Md. 370 ; Mayor and City Council of Balto. v. War, 77 Md. 593 ; O' Connell v. B. & O. R. Co., 20 Md. 212 . 'We have examined the testimony in this case with great care, and we can find ho proof whatever of any such negligence on the part of the master as would make it liable in this action. The cause of the injury, it seems'to us, was not due to any negligence on the part of the master, but it was solely caused by the use of a car by a fellow servant with a defective break, instead of using one with a good brake. There were three other cars with safe brakes which had been provided by the company and which could have been used on the day of the accident. It is clear, we think, that the master cannot be held-liable in this case for the carelessness and negligence of the fellow servant in using the car with a defective brake, which caused the injury.

In Yates v. McCullough Iron Works, 69 Md. 385 , it is distinctly said: If the servants “arein the employment of the same master, engaged in the same common work, and performing duties and services pertaining to the same general business, the master cannot be held liable to the one servant for injuries caused by the negligent or unskilful conduct of another, unless he has been negligent in employing or retaining in his service such negligent servant.” There is not a particle of evidence to show that the master had not exercised reasonable care in the. selection of its employees or in retaining negligent ones in its service. There is no dispute as to the extent to which Moore, Parrott and Lynch, were representatives of the company, and it is admitted ³⁴³ that under the evidence, they were fellow servants of the plaintiff. But it is contended by the appellee that the result of the accident was not only due to the failure of the appellant to have brakes upon its cars, but to the want of a bumper at the end of the trestle. Now if we concede the appellee’s contention in this respect we are brought to the same conclusion as in the case of the broken brake, and that is that under the facts of the case it was the negligence of a fellow servant.

The witness Seeds testified that he was employed by the defendant company to build the trestle or a portion of it where the plaintiff was injured and the work was done under the direction of the company’s superintendent, Mr. Walker. We find nothing in this case that would bring it within the exception to the general rule that a superintendent or manager is a fellow servant within the rule which exonerates the master. Moran’s case, 44 Md. 293 . To make the superintendent a vice-principal so as to hold the master liable for his negligence the latter must relinquish all supervision of the work and entrust not only the supervision and direction of the work but the selection and employment of laborers and the procuring of materials, machinery, &c., necessary for the service.

The proof in this case does not march up to the requirement of the rule just stated. Balto: Elevator Co. v. Neal, 65 Md.; N P. R. R. Co. v. Herbert, 116 U. S. 642 . But it is insisted upon the part of the plaintiff, that the negligence of a fellow servant will not defeat the right of action, if the negligence of the company materially and approximately contributed to the injury. The answer to this contention is that the present case does not come within that rule.

According to the evidence here the company had exercised reasonable care in the selection of competent fellow servants and in the procuring of proper and suitable machinery. The plaintiff had been employed unloading cars at the same place where the accident occurred on the 18th, 19th and 20th of the same month, and the cars had not moved while they were ³⁴⁴ at work on those days. He testified that the track at that point seemed perfectly level and when they wanted to move the cars they had to use crowbars. The direct cause of the injury, as we have said, was the use of the car with a broken brake and for the negligence and carelessness of the fellow servant in using this car, when there were other good and sáfe cars, which had been provided by the company, the defendant cannot be held liable.

For the error then in refusing to grant the appellant’s first prayer which instructed the jury that there was no evidence of'any such negligence on the part of the defendant, as entitled the plaintiff to recover, the judgment will be reversed, and as there can be no recovery, a new trial will not be awarded Judgment reversed, and new trial refused, with costs. (Decided January 30th, 1902.) A re-argument on the question whether the case should have been allowed to go the jury was had at'the October Term, 1902, and on November 20th, 1902, the Court passed an order reaffirming the judgment of reversal for the reasons given in the foregoing opinion. Pearce, J., dissented and delivered the following opinion. My convictions of the principles which should control the decision of this case are so strong that I am constrained to dissent from the opinion of the Court, though I am aware that dissenting opinions are very often, and sometimes correctly, regarded as idle if not pernicious work ; nevertheless they are sometimes justified in order to relieve the dissenting Judge from the imputation of that which, unexplained, might appeár to be merely captious difference or obstinate adherence to individual opinion.

After stating such facts as the Court considered necessary for' the proper understanding of the case, the opinion says: “We only deem it necessary for the purposes of this case to consider the action of the Court in rejecting the defendants’ first prayer, which reads as follows : “The defendant prays the Court to instruct the jury that there was no evidence in 'this case of any such negligence on the part of the defendant in ³⁴⁵ the discharge of its legal obligations to the plaintiff as entitles him to recover in this action * * “and we think it clearly appears from what has been stated, that the immediate and direct cause of the accident was the absence of brakes on the dirt train operated by the defendant. * * The c^use of the injury, as it seems to us, was not due to any negligence on the part of the master, but solely to the use of a car, by a fellow servant, with a defective brake, instead of using one with a good brake. But it is contended by the appellee that the result of the accident was due not only to the failure of the appellant to have brakes upon its cars, but to the want of a bumper at the end of the trestle. Now if we concede the appellees’ contention in this réspect, we are brought to the same conclusion as in the case of the broken brake, and that is, that under the facts of the case, it was the negligence of a fellow servant. The witness Seeds testified that he was employed by the defendant company to build the trestle, or a portion of it, where the plaintiff was injured, and that the work was done under the direction of the company’s superintendent, Walker.

We find nothing in this case that would bring it within the exception to the general rule that a superintendent or manager is a fellow servant within the rule which exonerates the master.’’ I have reproduced the above passages from the opinion of the Court, and have put them in juxtaposition, because, so placed, they tersely and clearly present the whole view of the case taken by the Court. The seventh prayer of defendant was clearly designed by its counsel, and understood by the Court in granting it, to apply only to the second count, which charged the injury to be the result of using cars without brakes. By that prayer the jury was instructed that if they believed the accident was caused by the negligence of the fellow servants of the plaintiff, then the plaintiff was not entitled to recover, and further that Moore, Parrott and Lynch, by whom the dirt train was made up and operated, were fellow servants of the plaintiff. That it was intended to apply only to the second count is manifest from the refusal of the Court to grant the defendant’s first prayer, for if the Circuit Court ³⁴⁶ had held, as this Court has done, that the want of a burnper ■ at the end of the trestle was the negligence' of a fellow servant, it must necessarily have granted 'that prayer, since only two caúses of the accident were alleged, and if both of these arose from the negligence of fellow servants, then- neither-cause,-nor both combined, could warrant a recovery.' The theory therefore upon which the rulings of the Circuit Court were made upon the first and seventh prayers of the defendant ‘ was that the want of brakes upon the dirt cars was the negligence of fellow servants for which no recovery could be had, but that the want of a bumper- at the end of the trestle was not the negligence of a fellow servant, but that of the master,' for which recovery could be had upon proper proof, and that there was evidence in the case to go to the jury from which, they could find that such negligence caused, or contributed to, the injury complained of.

To my mind it'is clear that these rulings were correct, and in endeavoring to maintain this ■ position it is necessary before considering the principles upon' which the granting or rejection of defendant’s first prayer must depend, to refer to the testimony supporting the theory upon' which it was refused by the Circuit Court. The undisputed proof is that the trestle is thirteen feet above the ground and without a bumper of any description to keep the cars from being thrown from the end; that to supply this defect in the construction of the trestle, an ordinary railroad tie, 6x8 inches, was placed across the track near the end of the trestle, and was fastened with ropes. The plaintiff testified that at the time of the accident there were four cars loaded with clay standing on the trestle, the last car being near the end of the trestle, that he was standing on the third car from the end, unloading it, when his fellow workman leaped from the car, that he turned and saw the descending dirt train within six or eight feet of the car in front of him ; that he made an effort to escape, but at that instant the approaching cars struck the car in front of him with such force as to throw him upon-the track, and drive back the cars on which he was working, and that the- car of his train in front of him passed over his ³⁴⁷ arm, which had to be amputated at the shoulder. He testified that he had never seen the trestle until he was told to go to work there April 18th, and he was injured April 20th, and that he did not know the absence of a bumper, or the substitution of a cross tie in its place, and that neither the absence of a bumper nor the cross tie could be seen where he worked, nor from the point where he approached and got upon the trestle.

James L. Baker testified that he had worked all his life for the P. W. & B. R. Co., building, repairing and maintaining railroad