Maryland Steel Co. v. Marney

Pearce, J., delivered the opinion of the Court. This is an action to recover damages for injuries alleged to have been sustained by the plaintiff, John Marney, through the negligence of the defendant, the Maryland Steel Company of Sparrows Point. The appellant is a body corporate, engaged in the manufacture of iron and steel, and it owns and operates a large establishment and plant for that purpose located at Sparrows Point in Baltimore county. On the 16th of September, 1895, the plaintiff was in the service of the defendant company, being employed in the foundry where iron castings ⁴⁸⁸ were made, his special duties being to charge the furnace or cupola with metal and to see that a proper supply of molten metal was ready for the moulder whenever required.

The molten metal is drawn from the cupola through an orifice, called a tap hole, near the base of the cupola and about five feet from the ground. This orifice is from three quarters of an inch to an inch in diameter and is closed with clay, which forms an effective plug or stopper to retain the liquid metal. When a flow of metal is required the tap hole is opeiied by means of a tap bar, which is a clean, sharp iron rod or bar, which is driven through the clay stopper into the tap hole, thus opening the orifice and permitting the liquid metal to flow. When it is desired to stop the flow of metal, it is done by means of an implement called the bot stick.

This is a round iron rod or bar with a wooden handle, the whole being about three and a half feet in length with a fiat disc on the end from an inch and a quarter to an inch and a half in diameter. A piece of damp clay is placed on this disc, and is moulded by hand into the shape of a cone, completely covering the face of the disc. This stick, with the conical clay stopper upon the end, is driven through the stream of metal into the tap hole, and by a quick turn of the hand and arm the bot stick is withdrawn, leaving the clay stopper in the tap hole, thus closing the orifice until it is tapped for another flow of metal. ■ It is needless to sajr that the safety of a tapper and of his fellow-servants, whose duties bring them within range of the stream of liquid metal which he controls, requires that he should possess courage, coolness and skill in his business. The undisputed testimony was that the plaintiff had been a cupola tender for many years and was an expert in charging and tapping them; that he had been accustomed to the use of the bot stick since 1868, and was considered very skilful in that particular business; the foreman of the foundry department testifying that the foreman of the shops, who employed all the men in the foundry, brought Marney there, “ as an experienced cupola man, being such an extraordinary good hand at that work.” But ⁴⁸⁹ his duties in charging the cupola precluded his also performing the regular duties of tapper, and a regular tapper was employed by the defendant company, who was presumably a competent and skilful man, but who was absent on the day of the accident attending a funeral, and his place was supplied by a man who was known by the defendant to be both .unskilful and incompetent.

The accident occurred in the following manner: The cupola was charged from a platform supported by a scaffold twenty feet above the ground and reached by a stairway. The plaintiff came down the stairs to ask how much metal was required for the next draft, and being informed, stopped and looked at the man who was then tapping at the east tap hole of the cupola, there being another tap hole in the south side of the cupola. He says, “ I seen there was a little something the matter with him and I jumped up (on the elevation made for the purpose) and stopped her in— and then I went up stairs.” Sometime after this a workman, one Geo. Struckler, since dead, called out, “ John, O Marney, this is leaking over here,” and a moment later, Doyle, who was foreman of the laborers — and in a position of authority over all of them — called, “ Jack, she is getting away on this (the south) side”; whereupon plaintiff sprang down the stairs, seized a bot stick and a piece of clay, put it on the bot stick and just as he was about to apply it to the tap hole, the metal, which was oozing out, burst over the stopper then in the tap hole, flew up and struck him on the body, and in the face and e3res, causing intense agony for several months and absolutely and permanently destroying the sight of both eyes.

Plaintiff testified that he was in no danger himself when called; that he could in two steps have gotten behind the furnace, which would have saved him, but that there was a common gangway in front of the tap hole and a number of men were working in front of it; that he knew the danger to all these men if the iron, which was then oozing out, should burst through the defective stopper and fall upon the hard floor, and that he went there to save the life of the men ⁴⁹⁰ around there. This testimony was not disputed, nor was the incompetency of the temporary tapper denied, though it was claimed that this incompetency was as well known to the plaintiff as to the defendant, and it was contended that the plaintiff’s injury was caused by the negligent and reckless manner in which he attempted to stop the leaking tap hole, and that but for this negligence on his part no accident would have occurred. This defence was properly submitted to the jury by the defendant’s fifth and seventh prayers which were granted, but the jury rendered a verdict for the plaintiff for fifteen thousand dollars, and from the judgment thereon this appeal was taken. It was also contended at the trial below that as the plaintiff, by his own admission, voluntarily left a position of safety and exposed himself to peril, that he was thus guilty of contributory negligence which must defeat his recovery.

Three exceptions were taken by the defendant in the course of the trial. During the examination of the plaintiff as a witness his counsel asked him the following question: “ State whether or not there is any danger of injury to people standing or working in the neighborhood of a tap hole to be feared from the molten metal being allowed to escape or to continue to escape the way you say it was when you went there to stop it? ” Defendant objected to this question but the Court overruled the objection and permitted the question to be asked, and the witness answered: “ There was such danger from the simple fact that as soon as molten iron runs down any stick or hard surface, or anything that is damp, it wont stay there and it’s going to fly; it would have went 20 feet and burnt the people around there, and there was not a man, if it had occurred, that would have escaped out of that corner without being burned, because it would come like a shower of hail right on top of them. It would strike the hard surface and then fly all over the shop. Every man in the radius of 20 feet would get it, because it don’t give any notice when it is coming.

It comes in a hurry! I have seen too much of it.” ⁴⁹¹ To the action of the Court in overruling the objection to this question and in permitting the answer to be received in evidence, the defendant objected, and this constitutes its first exception. The second and third exceptions were taken to the rulings on the prayers, which wall be set out in the Reporter’s statement of the case. The defendant’s first and second prayers were offered at the close of plaintiff’s testimony, and their rejection at that stage of the case constitutes its second exception.

These prayers were renewed, with five other prayers, at the close of all the testimony, and the plaintiff also offered two prayers. The Court granted the plaintiff’s prayers and also granted the defendant’s fifth and seventh prayers, and rejected its first, second, third, fourth and sixth prayers, and overruled a special exception taken by the defendant to the plaintiff’s first prayer on the ground that there was no evidence to sustain it, and the defendant’s third exception was taken to the granting of plaintiff’s prayers, to the rejection of its own first, second, fourth and sixth prayers, and to the overruling of its special exception to plaintiff’s first prayer. The general principles of law upon the application of which this case must depend are well established, but there is involved one question which has never been passed upon by this Court, namely, whether one who voluntarily incurs peril caused by the negligence of another, in order to save the life of one imperilled by the same negligence, is debarred from recovery upon the ground of his own contributory negligence. This question is an interesting one and has received intelligent and thoughtful consideration in the decisions of other tribunals, by ■ the aid of which we think it will not be difficult to reach a correct conclusion upon the facts of this case.

The evidence shows that the temporary tapper, Felix, and the plaintiff, Marney, were fellow-servants of the same master, the Maryland Steel Company; that Thomas G. Doyle was foreman of the laborers and riggers in the foundry department; that John P. Hines was foreman of the shop, employed all the men in the ⁴⁹² shop, and had charge of everybody around the foundry, and that Mr. Sahlin was the superintendent of the Maryland Steel Company and “ was boss over all the bosses and men in the works.” In all cases where the relation of master and servant is created by a mere agreement that the servant is to labor for the master at a certain rate of compensation, there arise by implication certain reciprocal rights and obligations bn the part of each, which the law recognizes as fully as if expressed in the agreement. Bailey, in his work on the master’s liability for injuries to the servant, states the chief of these implied obligations as follows: xst, that he will provide suitable means and appliances to enable the servant to do his work as safely as the hazards incident to his employment will permit; 2nd, that he will provide a suitable and reasonably safe place for the doing of the work to be performed by the servant; and 3rd, that he will provide, when required by the nature of the work, other servants reasonably skilful and competent for the performance of their particular work, so that the servant may not be exposed to unnecessary risk or peril from unskilful or incompetent fellow-servants. In the performance of these and all other similar duties the master is not a guarantor against the negligence of his servants, and is bound only to the exercise of reasonable and ordinary care. Every servant entering into the employment of a master takes upon himself the risk of injury from the negligence of his fellow-servants, and for such negligence the master cannot be held liable, unless he himself has been guilty of negligence in the selection of the servant whose carelessness caused the accident, or unless, knowing his incompetency, or having sufficient opportunity to know it and failing to discover it, he has retained the negligent employee in his service.

Mayor of Balto. v. War, 77 Md. 597 . And in this case, as in the case just cited, the declaration is framed upon a distinct recognition of these undisputed principles. In order therefore to recover for the terrible injuries which the plaintiff has received in the service of the defendant, it is necessary for him to ⁴⁹³ establish by legally sufficient evidence, first, that the accident was the direct result of the negligence or incompetency of the tapper, Felix; secondly, that the defendant, prior to the employment of Felix as tapper on that special occasion, had knowledge of his incompetency, or that after his employment and before the accident the defendant discovered his incompetency but nevertheless retained the incompetent servant; and thirdly, it must not appear from the evidence that he has himself been guilty of any negligence directly contributing to produce his injuries. The evidence of the gross incompetency of Felix as a tapper, as well as the full knowledge by the defendant of such incompetency, before his employment on the day of the accident, and of its demonstration anew to the defendant on that day and before the accident, is undisputed and 'overwhelming.

Johnson, one of the moulders employed by defendant, testified that he had known Felix over a year; “ that he appeared to be of a very nervous disposition at that character of work, and judging from my knowledge of the foundry I should not judge him to be a man competent for the position; he wasn’t acquainted with the principles I have seen experienced men adopt for that character of work ”; and again he says, “ if he is timid of the hot iron, he is fearful of doing his duty; he wants to get away from it as soon as he can, and if he is an incompetent man he will leave it whether it is secured or not, because he is not aware of the fact.” Hines, another moulder by trade who had been with the Maryland Steel Company five or six years and who was foreman of the shop at the time of the accident, testified that Felix had been previously employed there as a tapper but had got burnt a couple of times, “ that he was afraid to tap — afraid he would burn himself and the other men; he would run away and let it go if it got the best of him — that the men around the cupola said he could not do the work right, so I took him away and put another man in his place — he zvas not competent, but I had to put him