Surry Lumber Co. v. Zissett

Offutt, J., delivered the opinion of the Court. ' On October 6th, 1924, a schooner, the Emily Katherine, carrying a cargo belonging to the Surry Lumber Company, a corporation engaged in the wholesale lumber business in Baltimore City, arrived at Baltimore and proceeded to Pier 6, Pratt Street, a public dock of Baltimore City, to dock and to unload its cargo on a space on that dock or wharf, which had been allotted at its request to the lumber company for that purpose by the Harbor Master of Baltimore City at a rental of twenty cents for each thousand feet of lumber stored thereon. On the same day the lumber company gave á contract for unloading the vessel to Clayton Jackson, a “stevedore contractor,” at “so much” per thousand feet. ⁴⁹⁷ The hunker was in two sizes, 2x4 and 2x6, and Jacfcson first unloaded and piled up the 2x4 lumber on the dock and then the 2x6 size. Theodore Mottu & Company had also at that time lumber piled on the same dock and, during the unloading; of the Emily Katherine, was engaged in loading it on a truck operated by its employees. Edward Zissett, an employee of Mottu & Company, helped to load its truck, and as he was carrying lumber from its pile on the dock to its truck, one of the piles of 2 x 4 lumber belonging to the Surry Lumber Company “buckled” and fell, partly covering him, breaking his right leg, and otherwise injuring him.

While it is quite impossible from the record to say what were the relative positions of Zissett, the Surry 'Company’s lumber, the Mottu Company’s lumber, and the truck, it does appear that the pile which fell was about ten feet from the pile at which Zissett was working. As a result of the accident, Zissett was badly injured and was for some time unable to engage in his ordinary work, and incurred expenses for hospital and surgical attendance and treatment, on account of which he applied for and wa's allowed twelve dollars a week by The Industrial Accident Commission during the period of his disability. And on January 16th, 1925, he and the Phoenix Indemnity Company (which paid the compensation) brought this suit against the appellant and Clayton Jackson to recover compensation for his injuries and the losses incidental thereto. The trial resulted in a verdict for Jackson, and against the appellant, and from the judgment on the verdict against it the Surry Lumber Company took this appeal.

At the conclusion of the whole case the plaintiff offered two prayers, which the court granted, and the defendant seven, of which the court granted two and refused the rest, and those rulings are the subject of the only exception submitted by the record. The refused prayers were designated “Defendant’s First,” “Third,” “A,” “B” and “D” prayers. Its “First” and ⁴⁹⁸ “A” prayers were demurrers to the whole evidence irrespective of the pleadings; its “Third” prayer was intended to present the proposition that if the accident was caused by the plaintiff’s negligence he could not recover; its “B” prayer instructed the jury that if they found that Jackson contracted with the Surry Lumber Company to discharge the cargo of lumber and pile it on the pier at a set price per thousand feet, that he was an independent contractor for whose negligence the Surry Lumber Company was not responsible, and that their verdict should be in its favor, and its “D” prayer submitted the theory that if Jackson was a capable and experienced stevedore and was employed as an independent contractor by the appellant to unload the cargo of lumber, that the plaintiff could not recover even though the lumber which fell on the plaintiff had been piled in a negligent and unskilled manner by Jackson’s employees. The plaintiff’s first prayer submitted the proposition that whether Jackson was or was not an independent contractor,, if, when the accident happened, he had fully piled and completed the pile of lumber which fell and injured the plaintiff and it had been accepted by the Surry Lumber Company, and “that the plaintiff, while standing and loading lumber from the adjoining pile, as set forth in the evidence, was struck and injured by the Limber from the pile of the Surry Lumber Company, suddenly falling upon and over him, when he, the plaintiff, was exercising due care, if the jury so believe, then their verdict must be for the plaintiff and against the Surry Imrnber Company, unless that defendant by preponderance of testimony satisfies the minds of the jury that the falling of said lumber was not caused by its negligence.” His second prayer instructed the jury as to the-measure of damages applicable to the facts of the case and' was in a form repeatedly approved by this court and need not be further referred to.

From these prayers it appears that the plaintiff rested his right to recover upon the theory that a presumption of negligence arose from the mere fall of the pile of lumber which ⁴⁹⁹ injured him, and that, having proved the fall and the injury at a time when the pile of lumber which fell was under the appellant’s control, he w:as entitled to recover unless the defendant,- the Surry Lumber Company, affirmatively proved that its fall was not occasioned by any negligence or default on its part, while the defence of the appellant wa's that (1) the doctrine of res ipsa loquitur was not applicable to the facts of this case, and (2) that when the accident happened the pile of lumber which fell on and injured the plaintiff was under the control of an independent contractor for whoso negligence or default it was not answerable. We will therefore consider in connection with those contentions the evidence submitted by the record. Edward Zissett, the plaintiff, after testifying that he had been directed by Theodore Mottu & Company, by which he was employed to help load some lumber which it had on Pier 6 on its trucks, said that when the last truck came to “finish up' the pile” he had “moved to feed on the off side,” '“where they were piling this pile to make them handy for mo to get it on the truck when he gets in” and that some colored men were “piling on the other pile.” He was then asked to tell just what happened, but his statement in reply to that ■question, as well as the testimony of other witnesses to which we will refer, is to some extent unintelligible because of his •constant use of" such indefinite expressions as “here” and “there” and “this,” which may have been perfectly intelligible to the jury, but which are quite meaningless to us, in the absence of any chart or diagram illustrating their appli•cation, as will appear from this quotation from his testimony: '“Say, for instance, this is the pile they were piling. There was another pile up here, like this, and our pile was right 'in here, this here space, about ten feet, and this pile wasn’t any more than about this high (indicating), and this pile they were piling was, I guess, ten or twelve feet high, and at the time, they were still piling on it; and I put the lumber •over here, because there was a pile right in front of this, you ⁵⁰⁰ see, on the driveway, which was back there, and the pile over here on the driveway was about there, and the. pile over here on the driveway was about here (indicating).

Well, I yiit it over here, so that I could make it handy to g.et on tha truck, took it all away from this pile, and I had to put it all on the truck excepting, I guess, eight or ten pieces of 2 x 8’s twelve feet long. And when I stooped down to pick it up, which is about the middle of the pile — there was the truck, backed down that way (indicating), and just as I stooped down the whole pile came right on top of me. * * * Well, where were you standing with reference to this pile? A. I was standing right there (indicating). And I had these scantlings piled against here, and this pile, I guess, wasn’t over four or five feet high.

That was the only thing that saved my head, otherwise it would have knocked me clean down, and all of that hit me, and I had an eye like that, and I was bleeding like anything,” He further testified to the extent of his injuries, his medical and hospital expenses, and the duration of his disability resulting from the accident. On cross-examination he gave in part this testimony: “Q. Who was present at this accident besides yourself? A. Why, Mr. 'Sherfey was the only one that wa's at the truck, but all of those men were piling the lumber off the boat. Q. Well, where were the men that were piling this pile of lumber that you describe?

A. Right on top of' the pile. They seen when the lumber fell on me, because they were on the pile when the lumber fell on me. Q. And they fell down with the lumber, did they ? A. I couldn’t tell you that, with the misery I had.

I wanted to get the lumber off’ of me. They must have fell on top of me, they must have come down with the lumber, because they were piling it. * * * I had my back turned to the pile that fell on me, and I was picking up and putting on those few pieces I had left, to finish up that place back there, to clean it up^ and there were only a few pieces left there, and when I turned around, like that, stooped doAvn, like that, to .pick up¡ the pieces of ⁵⁰¹ 2 x 8, twelve feet long, jnst as I picked it up that way, the whole thing came right down on me.” On re-direct he added that lie was at least ten feet awray from the pile which fell, that he neither touched it nor went near it, but that he saw “them piling1 it, that’s all, throwing it np there.” Charles II. Sherfey, chauffeur, who was driving the truck upon which Zissett was loading Mottu & Company’s lumber, and who was present at the accident, testified that Clayton Jackson and his “gang1 of stevedores” were loading “the lumber on the pile which fell”; that the foreman of the stevedores told him that they were loading it for the Surry Lumber Company; that the pile which fell contained 2x4 lumber from ten to sixteen feet long, and was about ten feet high, lie further testified that he and Zissett wore at the truck which was hacked up at the Mottu Company’s lumber pile when the pile of 2 x 4 lumber owned by appellant fell, that it covered up Zissett and knocked the witness back of the truck, but that as he was “young and supple” he quickly got up and called for help for Zissett; that when he asked Jackson for help, he refused and told him that “he could not be bothered.’’ hut that some of the men on the dock came over and helped remove the lumber from Zissett. When asked whether he had noticed the “'Surry lumber pile,” he said: “Well, when I came in there, I didn’t take particular notice, because I was in a hurry to get back, and I carne back only to get those few pieces and I didn’t take much notice of the pile, but I know that they were up on it piling.

Q. How many men were working on it, piling it? A. Well, I won’t say for sure, I know* there was a few men up on the pile, piling it up. They were kind of up' the steps like, piling the stuff np high, you know, in layers like, pulling it up' on a slope. Q. Well, what methods were they using" in piling up there ?

A. Only just handing them up' to each other, you know, and placing them down. Q. And where were they getting the lumber from that they were piling? A. They were getting it off of this Kathaline.” The witness was then asked whether ⁵⁰² the “pile had been tied,” and in reply he said: “Well, after T came back to get Mr. Zissett, I investigated after I came back and I seen it was very haphazard put up; I mean it wasn’t put up properly like it should have been, but it looked like where they dropped the stuff it was just left lay, and it wasn’t very likely to. stay there any length of time, of course, a pile like that, putting1 up scantlings like, should be tied, which they weren’t doing.” This was in substance all the testimony offered by the plaintiff bearing directly upon the circumstance surrounding the happening of the accident of which he complains. On behalf of the defendant, Tames B. Blake, city salesman for the appellant, testified that he had charge of the “wharf” for it, that he saw the pile of lumber which injured the plaintiff, but that he “went away” before it was completed; that it was brought from the Tames River for the Surry I,umber Company in the schooner Emily Katherine, and that when that vessel arrived witness applied to the harbor master for a place to dock it and was allotted a space on Pier Ro. 6 by him; that then the Surry Lumber Company gave a contract for unloading it to Clayton Tackson, a stevedore; that such contracts were given out at so much per thousand feet; that Taekson was an efficient stevedore and his services were in such demand that they were at a premium; that the 2x4 lumber was piled in the “regular and usual” manner and “tied” at intervals by placing sticks transversely across the courses.

On cross-examination he testified that his company did not deliver any lumber, that they sell it and “mark it up” and that then their responsibility ceases; that he was ■at the pier every day, not all the time; probably an hour a ■day, and that his duties were “to see that the lumber was put out in shipshape, as we term it, to watch the lumber and see what it looked like. We had to sell it and I wanted to see what grade lumber it was and how it was manufactured, ■so that I could talk about it and sell it. No two piles of ■ lumber are identical. * * * Tust see that the vessels get ⁵⁰³ docked or the barges get docked and properly discharged, and put ont in the shape I want it to dispose of to the best advantage.” On his redirect examination he said that Clayton Jackson, in reporting the accident to him, said that the men loading the 2x8 lumber on the truck had placed a piece of scantling against the pile which fell and were throwing their 2x8 pieces on it” so that the trough could receive it.” and that he ha’d crawled under that scantling a short time before the accident happened. Daniel Campbell, the harbor master, said that he had leased a space on Pier 6 to the Surry Lumber Company at the time the accident happened, at twenty cents per thousand feet; that he had known Clayton Jackson in the course of his work at the city docks for five or six years, and that his work had been satisfactory and in “conformity with the rules and regulations of the dock.” Clayton Jackson testified that he was a stevedore contractor; that he contracted with the appellant to discharge a cargo of lumber from the schooner Emily Katherine on October 4th, 5th or 6th, 1924, and that he discharged it at Pier Ro. 6; that he had seen the pile of 2 x 4 lumber just before it fell, and to quote liis testimony: “A. Yes, sir; I just had came along, I just had came from another boat I had, the Kantista, and walked under a piece where this gentleman had resting on the 2 x 4’s and on another pile of lumber, which belongs to Mr. Zonck, throwing these 2 x 8’s on it, and I just had to bow my head and I stepped on the boat when I heard the rumble, and then when I heard the rumble 1 stepped hack, and this man was hollering, and the men ran over and lifted the scantlings oil of him, and this piece he had across the pile of scantlings, he had put it on this, other pile by the truck, and from the jar, naturally, it had throwed mv scantlings; but we weren’t working on the scant-lings at that time.

The scantlings had been finished some time.” He further testified that “just as I got on the boat I heard a rumble and when I stepped hack and looked at ⁵⁰⁴ the pile, this pile had fell and caught this gentleman who was putting the lumber on, and the scantling what he had resting on my lumber and on Zouck’s