Smith v. Philadelphia, Baltimore & Washington R.

Briscoe, J., delivered the opinion of the Court. This is a suit by the appellant against the appellee to recover damages for alleged personal injuries sustained by him while in the employ of the appellee corporation as a carpenter in the repair of certain freight cars near the City of Wilmington, Delaware. The suit was instituted in the Circuit Court of Cecil Comity, and resulted in a verdict and judgment in favor of the defendant. At the trial of the case, the Court below, upon the conclusion of the plaintiff’s testimony, granted the defendant’s prayers, which practically withdrew the case from the consideration' of the jury.

They were as follows: “The defendant prays the Court to instruct the jury that the plaintiff cannot recover in this case. “First, because there is no evidence legally sufficient to be submitted to the jury of the defendant’s negligence. “Second, because from the uncontradicted evidence the accident occurred from dangers which were open and obvious and the risk of which the plaintiff assumed.” The declaration contains two counts, and will now be considered. The first count charges that on the 9th day of October, 1906, the plaintiff was employed by the defendant as a carpenter and' engaged in the repair of one of the defendant’s freight cars, which was placed on the siding for ²⁷⁶ repair/ when without any notice or warning whatsoever to the plaintiff, one of the defendant’s trains was hacked in on said siding and struck the cars under which the plaintiff was working, thereby causing said cars under which the plaintiff was working to be moved and backed over the leg of the plaintiff, mashing the same, and causing much pain and suffering, necessitating medical treatment and skill and the shortening of the plaintiff’s leg about two inches, caused by the negligence of the defendant, in not providing the plaintiff with a reasonably safe place to work, although the plaintiff was using due care and caution and did not contribute directly thereto, and the said injuries are permanent. The second count charges that the accident was caused by the negligence of the defendant in not using and exercising ordinary care in the selection of competent employees, although the plaintiff was using due care and caution and did not by his negligence contribute directly thereto and the said injuries are permanent. The general principles of law applicable to cases of this character are well settled in this State, and need but few citations of authority to sustain them.

The cases of Gans Salvage Co. v. Byrnes, 102 Md. 247 and Wood v. Heiges, 83 Md. 269 , are directly in point. In the former case it is said: “An employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which he had an opportunity to ascertain. One who remains in a service which necessarily exposes him to harardous risks from causes open and obvious, the dangerous character of which he knew or had an opportunity of knowing must be considered as' having assumed such risks and if injured in consequence thereof has no claim against the employer. This doctrine while stated as a general rule constitutes an exception to or qualification of the broad principle which requires the employer to use ordinary care to provide a reasonably safe place in which the servant may perform his work.

B. & O. R. R. Co. v. Stricker, 51 Md. 47; Yates ²⁷⁷ v. McCullough Iron Works, 69 Md. 370 ; 20 A. & E. Ency. of Law, 114.” In the case of Wood v. Heiges, 83 Md. 269 , it is also said: The master is not an insurer of the servant’s safety. He cannot be bound for his servant’s injury without being chargeable Avith some neglect of duty measured by the standard of ordinary care. On the other hand, the servant is under an obligation to provide for his own safety when danger is either known to him or discoverable by the exercise of ordinary care. He must take ordinary care to learn the dangers which are likely to beset him,- and where the servant is as well acquainted as the master Avith the dangerous nature of the instrument used he cannot recover.

An examination of the record in the case at bar will disclose an absence of evidence legally