Mayor of Baltimore v. War

McSherry, J., delivered the opinion of the Court. This action was brought to recover damages for personal injuries. The declaration contains three counts. The first has been abandoned, and need not therefore be alluded to.

The second alleges, in substance, that the defendant, a municipal corporation, was engaged in constructing a sewer under the bed of Cross street in the City of Baltimore; that the plaintiff was employed as a laborer thereon; that in the prosecution of this work a shaft was sunk through which a cage or elevator used for conveying the plaintiff and others to and from their ⁵⁹⁵ work in the sewer, and for other purposes, was raised and lowered by means of a steam engine; that the defendant was bound to furnish a safe, competent, and skilful, engineer to operate the engine, but that notwithstanding this duty the defendant did not employ a safe, competent, and skilful engineer, whereby the plaintiff whilst rightfully upon the elevator, to be conveyed down the shaft to his work, and whilst exercising due care himself was, by the negligence of the defendant, its agent and servants, precipitated down the shaft and seriously injured for life. The third count alleges that the defendant was bound to use care in the selection and in the retention in the service of a competent and trustworthy engineer to operate the engine used in hoisting and lowering the cage or elevator, but that the defendant was negligent in the selection and retention in its service of Thomas Burns the engineer who had control of the engine, and that by reason of the incompetency or negligence of Burns and the negligence of the city in selecting and retaining him, the plaintiff was injured in the manner and to the extent described in the second count. The defendant pleaded not guilty, and the trial resulted in a verdict against the city, upon which judgment was entered, and from that judgment this appeal has been taken. The gravamen of the second count is that the city was negligent in not employing a competent engineer to operate the elevator, and that the engineer himself was negligent; and of the third count that the city was negligent in selecting and in retaining in its service an incompetent engineer, and that the engineer was guilty of negligence whereby the accident happened.

If the city was guilty of negligence as imputed to it in the third count, it must have been negligence either in the original employment of Burns, or in continuing him in its employ after discovering his incompetency, if he really was ⁵⁹⁶ incompetent, or in continuing him in its employ after having had sufficient time to discover his incompetency, and carelessly failing to do so. It appears from the plaintiff’s evidence that ordinance No. 43 of 1889,'made provision for the construction of the Cross street sewer, and that the management and control of the entire work was placed in' the hands of the City Commissioner. He was entrusted with the power to employ laborers, mechanics and all other servants needed in the prosecution of the work, and had charge of and supervision over the whole improvement. He acted for the city and stood towards the employes under him in the relation of deputy master or vice-principal.

It is equally certain that Burns, the engineer, by whose alleged negligence the accident happened, and War, the plaintiff, were fellow-servants of the same master. It is true the one had charge of the engine which hoisted and lowered the cage in the shaft, and the other worked in the excavation below the surface, but they both served the same master, worked under the same control, derived authority and compensation from the same source, and were engaged in the same general business; though in different grades or departments of it; and each took the risk of the other’s negligence. Wonder vs. Balto. & Ohio Railroad Co., 32 Md., 420 ; State, use of Hamelin, et al. vs. Malster & Reaney, 57 Md., 287 ; Baltimore Elevator Company vs. Neal, 65 Md., 438 ; Yates vs. McCullough Iron Co., 69 Md., 370 . The master does not guarantee his servant against the negligence of a fellow-servant.

One of the risks which the servant takes upon himself on entering or remaining in the master’s employment, is the danger of injuries to himself from the negligence of co-employes. For these injuries the master is not responsible unless he himself' has been guilty of negligence in the selection of the servant whose carelessness caused ⁵⁹⁷ the accident; or unless knowing his incompetency or having sufficient opportunity to know it and failing to discover it, he has retained the negligént employe in his service. This principle is not only not disputed, but the declaration is framed upon a distinct recognition of it. To maintain this action it is consequently necessary for the plaintiff to prove not only the fact of the injury, but also, first, that the accident was the direct result of a co-employe’s negligence, and, secondly, either that the master had not used proper care to select a competent co-employe, or, that subsequently to the employment and prior to the accident the defendant discovered the incompetency of Burns, or could have discovered it by the exercise of reasonable care, but still retained the incompetent servant.

The burden of proof was on the plaintiff to establish these propositions by legally sufficient evidence, and unless the evidence adduced by him was of sufficient probative force to enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the proposition sought to be maintained thereby, it was the clear duty of the Court to exclude it from the consideration of the jury. Baltimore Elevator Co. vs. Neal, supra. Several of the prayers presented in behalf of the city, but rejected by the Court below, challenged the legal sufficiency of the evidence, and now raise in this Court the ultimate or fundamental question of the right of the plaintiff to recover at all. Turning to the evidence offered by the plaintiff, and assuming for the purposes of this discussion that the •objections to its admissibility are not tenable, there are two circumstances, and only two, relied on to show the imputed incompetencv of Burns and the lack of care on the part of the City Commissioner in selecting him to operate the engine.

It appears that the shaft where the ⁵⁹⁸ accident happened was forty-five or fifty feet deep, and that the cage or elevator was hoisted from the bottom by means of a cable which was coiled upon a drum as the latter revolved when the power of the engine was applied. ' This drum was provided with a brake which by friction retarded the revolution of the drum as the cage descended, and enabled the engineer to lower the elevator gradually. By not throwing' the engine out of gear the pressure of the steam further retarded the descent of the elevator. The engine had been erected but a few days before the accident, and Burns was placed in charge of it the day immediately preceding the occurrence. In lowering the cage the day before the injury happened he let it fall two or three times, but why he did this or for how great a distance it fell does not satisfactorily appear.

This is one of the two circumstances adduced to prove Burns incompetent. There are some speculations and some vague conjectures as to what caused the cage to fall as just stated, but they are far short of legal proof. Conceding, however, that it fell by reason of negligence on the part of Burns the day before the accident, this was no proof that he Avas incompetent nor that the City Commissioner had been negligent in selecting Burns for the position to which the latter had been assigned. Negligence and incompetency are not convertible terms, for the most competent may sometimes he negligent, and evidence of acts of former unskillfulness furnishes no legitimate ground of presumption either that Burns was negligent when the plaintiff was injured, or unless communicated to or knoAvn by Smyrk, the City Commissioner, before the accident to the plaintiff happened, that Smyrk Avas derelict in retaining Burns in the city service.

There is no testimony in the record to the effect that Burns was incompetent. Beever, one of' the plaintiff’s witnesses, testified that he had told Mr. Thomas, Avho Avas ⁵⁹⁹ superintending the work, that Burns was incompetent to run an engine, and that he told Thomas this when the cage fell the day before the injury, but he nowhere testified as a fact upon the trial to that alleged incompetency. The day before the plaintiff' was hurt the cage fell either because Burns was negligent, or because he was incompetent, or by reason of some accident referable neither to negligence nor incompetency on his part. No other cause can possibly be assigned.

The burden of proof is on the plaintiff to show that Burns was incompetent. The occurrence itself in cases of this character raises no presumption of negligence and justifies no inference of incompetency. If you say the cage fell the day before the accident, because Burns was then negligent, you do not thereby prove him incompetent, because negligence may be predicable of competency. If you say the cage fell because of some accident, you do not prove Burns negligent, because an accident may happen to the most prudent.

If you say the cage fell because Burns was incompetent, you assume the very proposition to be proved as the foundation of the plaintiff’s case, though there is no evidence to warrant that assumption. Against the objection of the defendant the plaintiff was allowed to prove the following facts for the purpose of showing that sufficient care had not been used by the defendant or its agents in the selection of the engineer Burns — the second circumstance relied on by the plaintiff: That in January, 1891, Walter A. Cox was a member of the City Council, and Cox testified in these words: “It was between the 15th and 18th of January, that I was at the City Hall. It was about ten o’clock in the morning, and Mr. Burns came to me in company with Mr. John Murphy, who was then and is now, doorkeeper in the City Council. Mr. Murphy remarked to