State v. Boyce

Irving, J., delivered the opinion of the Court. This action was brought in the name of the State for the use of the widow and children of Joseph Bashe, who was killed by the giving way of a plank on the wharf of the appellee, by reason of unsoundness and rottenness which was attributed to the negligence of the owner, James Boyce, the appellee. At the time of the accident the wharf was in the occupancy of the Consolidated Coal Company of Baltimore City, and the deceased was in the employ of that company. ⁴⁷⁰ There is hut one question involved in the appeal, and that is the correctness or not of the Court’s ruling in instructing the jury that there was. no legally sufficient evidence to entitle the plaintiff to recover. The only evidence in the case was as follows: first, an admission signed hy counsel in the following words: “It is admitted in this case, that, at the time of the accident mentioned in the narr., the property known as ‘Boyce’s Wharf,’ where the accident occurred, in regard to which this s“uit was brought, was owned by James Boyce, although Orville Horwitz, who died prior to the injury complained of, held a deed for the same to secure a loan, with defeasance, which was unrecorded; and also that the Consolidation Coal Company occupied said premises as tenant of James Boyce, who received the rent for the same until the Consolidation Coal Company had finished a wharf belonging to it in the course of erection.” Secondly.

It was also proved that the deceased was in the employ of the Consolidation Coal Company, which was the lessee of the appellee; and that while engaged in hauling a car, a board, which constituted part of the covering of an opening used for dumping coal between the rails of the railroad track, broke through and the deceased fell through the opening and died of the injuries he received thereby. It was also proven that the board was part of the wharf over which the men had to pass in discharging their duties, and that the board was rotten and unsound. When the plaintiff rested, the Court, in pursuance of its rules, called on the defendant to submit a prayer, and this was offered: “That there is no evidence in the case legally sufficient to show that the plank mentioned in the evidence was in an unsafe and dangerous condition at the time that the wharf or pier mentioned in the evidence was leased by the defendant to the Consolidation Coal Company, in whose employ the decedent was at the ⁴⁷¹ time of the accident mentioned in the evidence, and that therefore their verdict must he for the defendant.” This instruction was granted and the