McCall's Ferry Power Co. v. Price

Thomas, J., delivered the opinion of the Court. The defendant (appellant) was engaged during the summer of 1906, in the erection of a dam across the Susquehanna river, at McCall’s Ferry, in Pennsylvania, and in order to secure the sand needed it decided to get it from the Chesapeake bay, and to convey it in scows as far as possible up the river and then by cars to McCall’s Ferry. This plan necessitated the devising of some means of transferring the sand from the scows to the cars, and accordingly the defendant sent its superintendent, John B. Coates, to Port Deposit to erect the necessary plant for that purpose. The contrivance finally adopted, and erected under the direction and supervision of Superintendent Coates, at a place called the “lower wharf,” in Port Deposit, consisted of two tall poles, called “gin poles,” one erected near the railroad track, and the other, not so tall,. ¹⁰¹ on a crib out in deep water.

Between these poles was stretched a cable or “runway,” and on this cable was placed a metal block, with various wheels inside of it, to serve as a carriage running along the cable, to which carriage was suspended by chains a “clam shell” bucket, similar to that used on a mud dredge. From one side of the carriage, and attached thereto, a cable ran to the engine, and from the other side a cable ran to the outer gin pole, and to it was attached what was called a “counter weight.” The engine was located on a tunnel or frame structure sixteen feet high, built over the railroad. The cable running from the carriage to the engine was attached to the drum of the engine, and by means of this cable the engine pulled the carriage, to which the bucket was attached, along the runway to a point above the tunnel, where the sand was dropped out of the bucket into the car, and when- the pressure of the engine was relaxed the counter weight drew the carriage out towards the outer gin pole. Running from the engine to the carriage, and through it to the bucket, were other cables by which the bucket could be lowered or raised, and opened or closed.

The plan was, by means of the engine and this contrivance, to open the bucket, lower it into the scow loaded with sand, then close the bucket, lift it out of the scow, pull it by the carriage cable to a point above the car, open the bucket, drop the sand in the car, and then by relaxing the pressure of the engine the counter weight would draw the carriage back along the runway out towafds the scow again. In the erection of this plant, which was begun about the 15th of July, 1906, the superintendent employed a foreman, J. N. Acker, and a number of workmen, including the plaintiff (appellee), Robert F. Price. There was also employed on this work an engineer, Nathan H. Davis, to run the engine. On the 23rd of August, 1906, as the plant was nearing completion, and after the bucket had been suspended from the carriage, and the cables running from the carriage to the engine, and from the carriage to the counter weight, and the several cables running from the engine through the carriage ¹⁰² to the bucket, had been attached, it was found that the chains from the bucket to the carriage were. either twisted or too long, and the plaintiff and Jesse Price were ordered by the foreman, Acker, to get on the bucket, which was then lying on the railroad built over one of the cribs, and take the twist out or shorten the chain.

In obedience to this order, they got on the bucket, when the bucket was suddenly lifted or moved and fell into one of the cribs and rolled on the, plaintiff, seriously injuring him, and to recover for such injury this suit was brought. The declaration, after alleging that the defendant owned and operated the plant mentioned, and employed the appellee on said works, charges that the defendant “knowingly and negligently employed or knowingly or negligently kept in its employ, a careless, negligent engineer or other servants, whose negligence was unknown to the plaintiff, to operate or run said engine or engines or other machinery connected with said works; that on the 23rd day of August aforesaid, the plaintiff was ordered by the foreman in charge of said works whose orders he was bound to obey, to get upon a bucket which was attached to a cable by means of a chain and shorten the chain attaching the bucket to the cable aforesaid; and in pursuance of said order he got upon the bucket and was proceeding to execute said order, using due care on his part, when the engineer negligently and recklessly started said engine and raised the bucket with the plaintiff on it some distance above the ground or wharf, and then the said engineer without any warning to the plaintiff, recklessly and almost instantly started said engine again and let the bucket fall so suddenly to the ground that the plaintiff was thrown off and crushed beneath it in such manner that he was bruised, wounded and severely and permanently injured, &c.” The defendant pleaded noncul, and the trial of'the case resulted in a verdict for the plaintiff, for $12,500. In the course of the trial the defendant reserved sixteen exceptions, fifteen to • the rulings of the Court on the admissibility of evidence and motions to strike out the evidence, and the sixteenth to the ¹⁰³ action of the Court on the prayers and the special exceptions of the defendant to the plaintiff’s prayer. As the sixth and seventh prayers of the defendant challenge the right of the plaintiff to recover under the pleadings and evidence, and as the questions raised by the rulings of the Court on the prayers may be determined without considering the evidence excepted to, the sixteenth exception will be disposed of first.

There can be no doubt, on the facts of the case, that the plaintiff and the engineer, Davis, were fellow servants, and we do not understand that to be questioned. That being their relation, the action here is one by a servant against the master to recover for injuries alleged to have resulted from the negligence or carelessness of a fellow servant. In such a case the master is not liable for the negligence of a fellow servant, unless it is shown that he was negligent, either in the employment, or in retaining in his service, the servant whose misconduct caused the injury. To entitle the plaintiff to recover in this case it was necessary, therefore, for him to show, first, that his injuries resulted from the negligence or carelessness of the engineer, Davis, secondly, that Davis was not a competent engineer, and thirdly, either that the defendant had not used proper care in selecting Davis as the engineer, or subsequent to his employment and prior to the accident, knew, or by the exercise of reasonable care could have known, of his incompetency, and retained him in its service.

O'Connell v. B. & O. R. R. Co., 20 Md. 212 ; Baltimore Elevator Co. v, Neal, 65 Md. 438 ; Baltimore v. War, 77 Md. 593 ; Maryland Steel Co. v. Marney, 88 Md. 482 ; Maryland Clay Co. v.Goodnow, 9 5 Md. 330 . (1) The plaintiff testified that he and Jesse Price were ordered by Mr. Acker, the foreman, to get on the bucket, which was lying on the railroad, on one of the cribs, and shorten the chain, and that by the time they got on the bucket the engineer started the engine and raised the bucket about eight or ten feet in the air, and then let it fall with a crash, and it rolled over on him and crushed his side; that Davis was the engineer; that there was no necessity for starting the engine at ¹⁰⁴ that time or for raising the bucket, and that the whole machinery was operated and controlled by the engine. Jesse Price testified that he and the plaintiff were ordered by foreman Acker to get on the bucket and shorten the chain, and that after they got on the bucket the engineer suddenly started his engine and lifted the bucket eight or ten feet in the air and then it fell into a crib, and struck or rolled on the plaintiff; that he saw Davis at the time of the accident, and saw him start the engine; that the engine was on the tunnel, and that the engineer was in a position to see them on the bucket, and that the movements of the bucket were controlled by the engine. Frank Nicholl testified that they found that the chain by which the bucket was attached to the carriage was too long to permit the bucket to go over the side of the boat, and that the plaintiff and Jesse Price were ordered to get on the bucket and shorten the chain, that they jumped up to shorten the chain and while shortening the chain “all of a sudden the bucket took a quick rise and dropped on this little railroad and broke a tie and plank;” that the bucket was lying still when they got on it; that the bucket weighed about two thousand pounds, and that when' it fell it rolled on the plaintiff and injured him; that Davis was at the engine at the time; that when the plaintiff and Jesse Price got on the bucket witness looked up to see if Davis was looking, and saw that Davis was at the engine and had charge of it; that no one signalled Davis to start the engine, and that there was no warning given to the plaintiff and Jesse Price that the engine was going to be started.

This evidence, which.was corroborated by the testimony of other witnesses, describing how the plant worked and how the movements of the bucket were controlled by the engine, and by the testimony of foreman Acker, a witness for the defendant, that the bucket was resting on the track when the plaintiff and Jesse Price got on it, and that the engine was the only thing that could have taken it up, was sufficient, in the absence of a suggestion that the engine was defective, to warrant a finding by the jury that the injuries were occasioned ¹⁰⁵ by the engineer negligently and carelessly starting his engine and lifting the bucket while the plaintiff was on it. (2) The evidence shows that engineer Davis went to .work in the construction of this plant about the 15th of July, and was put in charge of the engine used in working the derrick employed in unloading the cars and lifting heavy timbers for the construction of the tunnel and cribs, and the witnesses, Jesse Price, Frank Nicholl, William B. Chesney, John T. Remmie and Creswell, all testified to the manner in which Davis ran the engine between the time of his employment and the day of the accident, when John B. Coates, the superintendent in charge of said work, was present, and to numerous instances during that time when Davis so negligently and carelessly managed the engine that Coates would take him away from the engine and take charge of it himself, stating at the time that he was not competent to run the engine. Nicholl testified that when Davis was running the engine, and they were lifting timbers by means of the engine and derrick, he, Davis, “would snatch it up and he would be at a loss to get it one way or the other and Mr. Coates would drive him away.” “It seemed as if Davis would be at a loss to know what to do. He would zig-zag with it.

If he got it too high and some one gave him a signal to let it down, it would come down with a thump and wouldn’t land in the proper place. When Mr. Coates would take hold of it and handle it;” that Coates, would'say to Davis, “Damn it, you can’t run it,” and take the engine himself. Jesse Davis testified, “when we were building the tunnel Mr. Davis was at the engine. In building the tunnel you would have to boom up on the boom and go up on the load together.

In hoisting timber lots of times we hoisted two sticks together ten by twelve sixteen feet long. We would put the hook in the centre and carry it up on top. You would have to boom up on your boom and go ahead on your load at the same time to land it on the tunnel, and he on several occasions dropped the load and the boom at the same time. If you’d tell him to boom down the boom and the load was apt to go at the same time.” “When he was hoist ¹⁰⁶ ing timber he would either let the boom fall or the load fall.

He didn’t know how to control it. He didn’t know one lever from the other. I heard Mr. Coates time and time again cuss him from one end of the works to the other because he didn’t know how to run the engine and drove him away from the, engine and took it himself.” “He would get tangled up on his levers.” That he heard Mr. Coates say that Davis didn’t know anything about running an engine. It would seem unnecessary, and would unduly prolong this opinion, to recite in detail the testimony of the witnesses, Chesney, Remmie and Creswell, which was to the same effect, as to the manner in which Davis managed the engine, and as to the statements of Superintendent Coates that he was incompetent.

This evidence was sufficient to show not only that Davis was incompetent, but that his incompetency was known to the defendant prior to the time of the accident. John B. Coates was the superintendent, and had full charge of the work and men at this plant, and it is not questioned in this case, that if he had knowledge of the incompetency of Davis, that knowledge was legally imputable to the defendant. Baltimore Elevator Co. v. Neal, supra, Maryland Steel Co. v. Marney, supra. There was no error, therefore, in the rejection of the defendant’s sixth and seventh prayers.

What we have said in reference to the sixth and seventh prayers of the defendant disposes of all of-its special exceptions to the plaintiff’s first prayer, except the exception on the ground that there was no evidence that Coates put Davis in charge of the .engine. The plaintiff testified that Coates “had full charge of everything, he hired and discharged the men, erected the tunnel, erected the machinery and everything, and had full charge.” Mr. Coates testified that he was superintendent, that he sent to the chief engineer and manager of the McCall Ferry Company for an engineer and he sent him Davis, and that he, Coates, employed him. But even if he did not originally employ Davis and put him in charge of the engine, he had, as stated by the plaintiff and not disputed, the right to discharge him, and the plaintiff’s right to recover is ¹⁰⁷ based upon the negligence of the defendant, in either his original employment, or his retention in the service of the defendant. Counsel for the appellant further insist that the plaintiff’s first prayer is faulty in that (i) it ignores the testimony of the defendant’s witnesses tending to show that the movement of the bucket which caused the injury was caused by the counter weight and not by the running of the engine, and (2) that it does not require the jury to find that the injury was occasioned by the incompetency of Davis.

The defendant’s theory was that the movement of the bucket was caused by the counter weight, while the theory of the plaintiff was that it was moved by the engine. If the jury found, as they were required to do by the prayer to entitle the plaintiff to recover, that the movement of the bucket was caused by the running of the engine, it necessarily excluded-a finding that it was caused by the counter weight, and it was not therefore necessary to negative in the prayer a finding that the bucket was moved by the counter weight. The prayer also requires the jury to find that the injury was occasioned by the negligent and careless act of the engineer; that he was an incompetent engineer, and that his incompetency was, prior to the injury, known to the defendant, or by the exercise of reasonable care could have been known to it (as did the defendant’s seventh prayer in Baltimore Elevator Co. v. Neal, supra, which this Court said “was strictly correct”),