State v. Malster

Alvey, J., delivered the opinion of the Court. This action was brought to recover for the death of Theodore Hamelin, alleged to have been caused by the negligence of the defendants. The defendants are bridge-builders, and were, at the time of the accident complained of, engaged in constructing what is known as the Calvert street bridge, over Jones’Palls, in the City of Baltimore. The bridge is a heavy iron structure, and, in putting it together, it required strong manual force as well as the use of mechanical appliances.

The deceased was employed by the defendants as one of the laborers in the construction of this bridge at the time of his death. With the declaration was filed a statement of the particulars of the claim, and the grounds upon which it was made. In that statement, it it alleged that the accident was “ caused by the negligence of the defendants, in selecting one Dudrow, an unfit person for such appointment, to be a foreman in said work ; and in failing to provide sufficient appliances to secure the safety of their workmen ; and in the general control and management of the said work by themsélves; or by one or more of the causes aforesaid.” The case was tried upon the general issue, that the defendants did not commit the wrong alleged. And, under the instruction of the Court, the verdict was for the defendants.

The evidence shows that the deceased was not an experienced bridge-builder, but that his vocation in life had ³⁰³ been that of a mariner. He was employed as an ordinary laborer, at ordinary wages, and had been at work on the bridge about two weeks previous to his death. He was at work under Curran, the foreman or superintendent of the work, who was an experienced and skilled bridge-builder; the defendants not being constantly at the work themselves, and not being there upon the occasion of the accident. There were two other men employed at the time on the work, named Dudrow, who were skilled workmen, and one of them, Parker Dudrow, was acting as leader or director of the gang of hands engaged in the particular work, in the doing of which the accident occurred; though, it appears, he had no special delegation of authority as foreman.

In regard to these facts there is no controversy whatever ; they are proven mostly by the evidence adduced on the part of the plaintiff. The way in which the work was done, in the doing of which the accident occurred, as shown by the evidence, was this: The arches of the bridge were constructed of heavy iron segments, of about 3600 lbs. each, and these 'segments were placed in position in the arches by the use of a derrick. But in order to put them in position to he raised by the derrick, they had to he moved along a gangway, in the centre of the scaffolding or frame work of the bridge, on a roller or buggy, as it is called, and thence to the edge of the scaffolding on greased iron bars or rails, where the segments were to be raised and placed in the arch. There was no flooring on this scaffolding or frame work, hut loose planks were provided and used to make foot-ways for the men over the scaffolding, to enable them to work.

It is shown that there were some eight thous- and feet of these planks provided and placed upon the scaffolding for this use; each plank being 16feet long, 12 inches wide, and 3 inches thick. When the segments were pushed to the end of the greased rails, they were then tilted or canted from the ends of the rails to put ³⁰⁴ them in position to he raised by the derrick: and this was done by manual force. In order to effect this move, a plank was placed in front of the segment upon which the men could stand while engaged in canting the segment. This plank should have rested flatly on the cross timbei’s ; but in canting the segment upon the occasion when the accident happened, it was allowed to rest upon the greased rails.

In this particular instance, moreover, the plank used had been sawn short some four feet, and it was too short for the purpose, being only ten or twelve feet long. Some fourteen of the segments had been put in place, and the same mode of proceeding had been adopted in reference to them-all, except in the use of the short plank, and the allowing it to rest on the greased rails instead of the timbers. In placing the first two or three segments in position, Curran gave personal supervision, and directed, in those instances, the withdrawal of the greased rails after the first tilt therefrom of the segments, and that the plank be placed on the cross timbers. He gave no special direction, however, that this same precaution should be observed in all subsequent cases of placing the segments.

In placing these first segments in position, Hamelin, the deceased, was present and co-operated as one of the laborers ; but afterwards, the hands were divided into two gangs, — the one being placed at the derrick, and the other assigned to the moving and handling the segments on the scaffolding; and Hamelin was placed with the gang at the derrick, under the immediate direction of Cur-ran. When the fifteenth segment was moved to the place where it was to be tilted or canted the second time, in order to be put in position to be moved by the derrick, call was made for assistance, and Hamelin was directed by Curran to go and give assistance in turning the segment ; and when he reached the scene of operation, the short plank had been placed in position in front of the segment, resting upon the greased rails, and the men had ³⁰⁵ taken their positions thereon, preparatory to a united effort to turn the segment into position. He took position also on the plank; and in the lateral pressure upon the plank in the effort to turn the segment, the plank slipped upon the rails, and several of the workmen were precipitated to the falls below, a distance of about forty feet, and among these was Hamelin, who came to his death thereby. With respect to these facts there is no conflict or dispute whatever ; and it is therefore clear that the immediate cause of the accident was the incautious use of the short plank on the greased rails, while making the effort to turn or cant the segment for the derrick, instead of a plank of proper length resting solidly on the timbers of the scaffolding or frame work of the bridge.

Upon the whole evidence, the Court below was asked by the plaintiff to instruct the jury in accordance with ten prayers propounded; hut the Court refused them all, and, at the instance of the defendants, instructed the jury, 1st, That there was no evidence in the cause of any such negligence on the part of the defendants in discharge of their legal obligations to the deceased, as would entitle the plaintiff to recover under the proceedings ; 2nd, That, upon the undisputed evidence, it was apparent that the deceased directly contributed to the happening of the accident, by his own want of ordinary care and prudence; and, 3rd, That, upon the undisputed evidence, it was apparent that the accident was the direct result of the want of ordinary care and prudence on the part of the deceased and his fellow-workmen, in doing the work on which the accident occurred; and therefore the plaintiff could not recover. These propositions all resolve themselves into this, that there was no sufficient evidence of negligence on the part of the defendants, to afford the right of action against them, though there was plain and undisputed evidence of the want of ordinary care and prudence on the part of ³⁰⁶ the deceased, and his co-laborers. And in reviewing this, ruling of the Court helow, and determining whether it he correct or not, we must first make reference to the settled principles of law applicable to the case. All the cases, English and American, fully agree in-the general proposition, that where a servant engages to-perform certain service for compensation, it becomes an implied part of the contract, that he will take upon himself, as between himself and the employer, all the natural risks and perils incident to the work, whatever the nature-of that work may he; and if the nature of the work be hazardous, involving the necessity for great care and caution on the part of the servant for his own protection against injury, the presumption of law is, that he fully understood the nature of the work, and that his compensation was fixed with reference to the risks and perils of the service undertaken by him.

And if, from the nature-of the service to be performed, the servant must or may be exposed to risk of injury from the negligence of other servants of the same employer, engaged in the same common employment, though it may be in different grades or departments of it, such risk is one of the natural perils-of the service which the servant takes upon himself, as between himself and the employer, and therefore, for any injury sustained from such cause, that is to say, the negligence of fellow-servants, he can have no right of action against the master. The servant, however, does not engage against the negligence or malfeasance of the master himself; and hence the master is bound to use due and reasonable diligence, having respect to the nature of the service, to provide the proper materials, appliances, and instrumentalities, for doing the work, and also to use due diligence and care in the selection and employment of competent and careful fellow-servants for the particular-work or service to be performed. Nor is the master justified in knowingly or negligently exposing the servant to- ³⁰⁷ any extraordinary or unreasonable peril in tbe course of the employment, against which the servant, from the want of knowledge, skill, or physical ability, could not, by the use of ordinary care and prudence, under the circumstances of the case, guard himself. For the violation of duty in these respects by the master, whereby injury is sustained by the servant, the master is justly liable.

These principles are laid down in a great number of adjudged cases, and have been explicitly enunciated by this Court. Wonder’s Case, 32 Md., 411 ; Hanrathy’s Case, 46 Md., 280 ; Hutchinson vs. Railw. Co., 5 Exch., 343; Wigmore vs. Jay, Id., 354 ; Roberts vs. Smith, 2 H. & N., 213 ; Williams vs. Clough, 3 H. & N., 258; Hough vs. Railw. Co., 100 U. S., 213, 217 ; Whart. on Neg., secs. 209 to 217, and Cooley on Torts, pp. 543, 545, where the cases hare been carefully collected and the results of them stated.

All the cases agree in holding that there is no obligation on the part of the master to give his own personal supervision to the execution of the work; but that he may delegate that power to a superintendent or foreman. And it is held by all the English cases, and by a decided preponderance of those of this country, that such superintendent or foreman is a fellow-servant within the rule, and that the omission or negligence of such superintendent or foreman is among the incidents of the service, and the risk of which the servant assumes upon himself, as between himself and the master, when he enters the employment. Consequently, for any injury to the servant, caused by the omission or neglect of the superintendent or foreman, the master is not liable to the servant, jjrovided the master has not been negligent or careless in the selection of such foreman or superintendent. It is said by Judge Cooley, in his work on Torts, in treating of the subject, at page 544, “that it cannot be disputed that the negligence of a servant of one grade is as much one of the risks of the business as the negligence ³⁰⁸ of a servant of any other; and it seems.impossible therefore to hold that the servant contracts. to run the risks of negligent acts or omissions on the part of one class of servants and not those of another class.” The cases in which it has. been held that the superintendent or manager is a fellow-servant within the rule which exonerates the master, are quite numerous, and it is not necessary that we should do more than give reference to some of them.

Wonder’s Case, 32 Md., 411 ; Wigmore vs. Jay, 5 Exch., 354; Wiggett vs. Fox, 11 Exch., 832; Brown vs. Acrington Cotton Co., 3 H. & Colt, 513;