O'Connell v. Baltimore & Ohio R. R.

GrOLDSBOROuaH, J., delivered the opinion of this. Court: The action in this case was instituted by the appellant against the appellee in the Superior Court of Baltimore ²¹⁹ City, to recover damages for an injury sustained by him while in the appellee’s employment. It is alleged in the declaration that whilst the appellant was engaged in his work as an employee, without any neglect or carelessness ou his part, but through the carelessless of another employee over whom the appellant had no control, a dumping or gravel car of the appellee was upset and fell upon the appellant, and he was permanently injured. That the car on which he was riding, was upset from its defective construction and the unskillfnlness and neglect of the employee having charge of the car.

To these allegations the appellee pleaded “not guilty.” At the trial and after the evidence detailed in the record had been submitted to the jury, the appellant offered nine, and the appellee five, prayers. The prayers of the appellant were rejected, and those of the appellee were granted by the Court. The verdict and judgment being for the appellee, this appeal was taken. The law arising out of the relation of the parties litigant in this case, is presented for the first time for our consideration.

It affects a large class of citizens, a class, constantly being augmented by the diversity of employment incident to the enterprise of the age. In the absence of any controlling decision in this State, we find ourselves aided in the formation of our opinion by a current “of decisions both in England and in this country, entitled to our highest consideration and greatly relieving us from the responsibility of settling the law as to the relative obligations of parties holding positions similar to the parties in this case.” It is proper to state that though the appellant received the injury stated in his declaration while riding on one of the appellee’s cars, it is not claimed that he was a passenger who had paid for the privilege of travel, but one of a number of laborers who were in the employment of the appellee, who were required to ride upon the cars to and from the place of their daily labor. ²²⁰ The appellant seeks to recover damages upon the ground ■that there is an implied warranty on the part of the appeLleo of the soundness of the machinery put in the hands of its servants .so far as any unsoundness therein may be dis.covered by the exercise of proper care and diligence; and in the employment of men of care, skill and capacity for the full and faithful discharge of the duties that appertain to the position they severally occupy. The appellant also relies upon the fact, as he insists, that he, with other laborers ■were updcr the management and control of one Downey as superintendent of the laborers; that Downey was rash and wholly regardless of the safety of the men, and that the train of dumping cars, upon one of which the appellant was riding wa.s managed by an engineer having charge of the train. That neither Downey nor the engineer inspected the cars at or before the time they were started, and that the fixtures by which the cars were adjusted to prevent their dumping, especially the car on which the appellant was riding, were out of order and unadjusted at the time of the accident, and from all these cauces he suffered the injury complained of in this suit.

The appellee rests its defence upon the relation of the parties as employer and employee. That there is no responsibility if the injury arose from the conduct of a co-employee engaged in the .same .employment, though the co-employee be superior to the one injured. That the appellee cannot be held responsible if it employed a competent and skillful engineer and superintendent; and does not warrant that these individuals shall faithfully discharge their duty in managing the hands and keeping the machinery in its original safe condition; and that it is a legal and sufficient defence to this action, if the appellee did in fact employ a skillful and competent engineer and superintendent; and if the cars put upon the road were of approved construction, and were in a proper state and condition when put into the hands of the engineer and ²²¹ ¡superintendent. That at the lime of the accident and injury to the appellant, he was riding on one of the cars of which he was required to avail himself in order to facilitate his labor and service.

That no compensation was paid