Philadelphia, Baltimore & WashIngton Railroad v. Devers

Page, J., delivered the opinion of the Court. The facts of this case are as follows. The appellee was a flagman in the employ of the appellant at the crossing of a street over its railroad in the city of Chester, in the State of Pennsylvania. His duty was to watch for passing trains and give notice thereof to persons passing along the highway.

For the better performance of his duty the appellant provided him with a watch-box where he could find shelter when not obliged to be upon the track. He had been so employed for more than seven years. Three tracks, two of them main, and one a siding, there crossed the street. The box was placed between the two main tracks; it was about eight feet high, four feet across, and weighed three or four hundred pounds.

It had been in use several months. On the morning of the ac ³⁴³ cident it had been moved temporarily by the employees o f the appellant, from its foundation for the purpose of being repaired. The appellee whose term of service was at night, was absent while the repairs were being made. He returned to his work before the repairs was fully completed, but after the box had been moved back to the place where it belonged.

There was testimony tending to show that it was replaced apparently in its original position with relation to the location of the track; and no change was observable other than that the step had been removed and some alteration had been made in its structure. He testified that on his return he noticed no change in the location of the box; it was “apparently in the same position;” far enough away not to be hit; as far as he could see, it was “in a safe place,” he “didn’t think of injury.” It was also in testimony, that the appellee when he arrived at his place was about to enter the box to leave his kettle and other things needed by him during the night, when the box was struck by a passing engine and the injury of w'hich he complains was inflicted. At the close of the trial the appellant excepted to the action of the Court upon the instructions asked for by the respective parties. The substantia] question in the case is whether this watch-box under the circumstances of this case falls within the familiar rule that requires the master to exercise all reasonable care to provide and maintain proper and safe machinery, appliances and places for his employees, and that such duty he cannot avoid by showing that he has used reasonable diligence in the selection of his agents to perform the work.

In such a case the negligence of the servant to discharge this duty would be a negligence imputable to the master for which he would be responsible, and this' is so because there rests on the master a positive duty which he cannot delegate. These principles are too well settled to require further statement, or citation of authority. They are sustained in the following cases. Russell’s case, 88 Md. 571 ; Jamar's case, 93 Md. 412 .

But the appellant contends that the watch-box ought not to be considered as a structure or appliance, or “a place in which ³⁴⁴ to work,” but must be regarded as “a structure used as incidental to the work.” The distinction thus sought to be made in order to relieve the master of his obligation, we think is more fanciful than real. It is certainly not borne out by any of the cases cited to support it. Yates, 69 Md. 370 ; Stricker, 51 Md. 69 ; Goodnow, 95 Md. 330 ; Strickling’s case, 88 Md. 500 . In the first and second of these cases the master was held not liable, because the servant after he became aware of the defects in the machinery voluntarily continued in the service.

In the Strickling case it was held negligent to permit a rapidly revolving shaft to remain unguarded without wárning, to one who was inexperienced and ignorant of the danger to those ■coming in contact with it. In Goodnow’s case the decision •of the Court turned upon the fagt that the injury was caused solely by the negligent selection and use" by a fellow-servant •of a car without a good brake when there had been provided other cars with safe brakes which might have been selected and used. So that none of these cases and none other to which we have been referred, are applicable