Texas Co. v. Washington, Baltimore & Annapolis Electric Railroad

Walsh, J., delivered the opinion of the Court. This suit was brought by the Texas Company, Incorporated, for the benefit of The United States Fidelity and Guaranty Company and John Miller, against the Washington, Baltimore and Annapolis Electric Railroad 'Company, to recover for injuries sustained by John Miller and alleged to have been caused by the negligence of the defendant, and the present appeal is from a judgment in favor of the defendant. Miller, one of the equitable plaintiffs, was employed by the Texas Company in the capacity of chauffeur’s helper, and on February 1st, 1923, he, together with a chauffeur named Walls, took one of the Texas 'Company’s trucks to the freight shed of the defendant in Baltimore City for the purpose of obtaining about forty empty oil drums consigned to the Texas Company. The defendant had sent a postal card to the Texas Company notifying it of the arrival of the drums and asking that 'they be called for, and it was in response to this postal that Miller and Walls went to the freight shed.

On arriving there the truck was placed at a point about fifteen feet from the oil drums, the space between tibe track and the drams being filled with freight, and Wall®, in accordance with the practice and rales of the defendant, went to the cashier’s office to have his card O'. K.’d so that he could obtain the drams. After leaving the cashier’s office ;he went ■to the delivery clerk of the defendant, a Mr. Ballard, to turn over the card, and that gentleman being busy with another customer, Walls walked over to the oil drams, and just as he reached them Miller suffered the .injury for which this suit ¹⁷⁰ was brought. When Walls went to the cashier’s office, Miller went on the platform of the freight shed, and as, in his own words, “there was all kinds of freight in front of those drums, barrels, boxes and bales, and things of that land,” he asked another employee of the defendant, a Mr. Mason, whom he described as a receiving clerk, Whether they could have some help in getting the drums.

Mr. Mason said “that they were all busy and could not give us any help', and that, there were two of us on the truck to get the empty drums.” Miller also testified that “Mr. Walls, the chauffeur, and I had gotten empty drums there lots of times before,” and that they usually got them without help from the defendant. * * * “On this occasion I asked Mr. Mason, and he said he was too busy to have any one help; me. Then T went into- the aisle, and there was an empty barrel there which looked like a potato or flour barrel. This aisle was leading back to the drums, and the freight was piled on both sides of it. The drums were at the far end of the aisle.

There was nothing in this aisle except this empty potato barrel. It was necessary to move this barrel because the aisle was not wide enough to bring the drums through, and as soon as I moved it a radiator fell over on my foot. I could not get in and get the drums without moving the barrel, and as soon as I moved it the radiator fell on my foot and boxes fell all around me.” On cross-examination Miller stated that he had been going to the defendant’s freight station for drums for nearly two years, that the freight shed was open on both sides, and that it was lighter than the court room, in which the case waa being tried. He also admitted that in his application for compensation he stated that the radiator which fell on him seemed to he leaning, and he testified further on this point, “yes, it seemed to- be leaning because there was other freight piled up against it.

Q. You saw it? A. Yes. Q. And it was leaning when you saw it ? A. Well, it looked like it was leaning, yes, .sir.

Q. Looked like it. But you -saw that radiator? It was daylight, wasn’t it? A. It was daylight, yes, sir.

Q. I mean you could see the various articles around, ¹⁷¹ couldn’t you ? A. Well, títere was so many. There was lots of stuff there, yes, sir. * * * Q. And you could see the various articles of freight? A. Tes, sir. * * * Q. D'o you remember telling the person who made out this ('application for compensation) that the radiator seemed to be leaning?

A. Well, then, at-that time I knew everything perfect, hut it has been a good while now to remember everything exactly the way it was, Q. Sure, of course, Mr. Miller. But have you any doubt that that is correct? A. Yes, that is perfect, the way it is there now. Q. That the radiator seemed to be leaning?

A. Yes. Q. How did the radiator seem to be leaning, against anything? A. Well, I do not remember that exactly now either, but there was a barrel there I had to move to get in the aisle, and there was not only a radiat-or, but other things there, too, a whole lot of stuff. They were not all setting straight, no matter what it was.

Q. The radiator was leaning? A. It is in all -those stations, always.” He then continued: “I have been engaged around freight terminals ever since I have been with The Texas Company. * * * I know about the way freight is ordinarily piled. * * * The radiator was near the barrel, for as soon as I moved the barrel it fell on me. * * * I do not know whether the empty barrel held the radiator upi. It may have, but I did not see it. * * * The radiator had boxes against it on the other side.” He also stated that the freight shed was congested that day, and that the freight was piled about the same way it' ordinarily was in all freight sheds visited by him. : ■ It further appeared that Miller filed a claim for compensation under the provisions off the Workmen’s Compensation Act, received an award, and had signed a final settlement receipt. The present suit was instituted under1 the provisions of section 58 of article 101 of. the Code (Workmen’s Compensation Act), which authorizes the recovery of damages where the injury was ■caused under circumstances creating a legal liability in some person other than the employer.

At the trial below the plaintiff offered five prayers and the defendant six, but the court refused all the prayers of the ¹⁷² plaintiff and tke defendant, and gave an instruction of its own, and, tke verdict of tke jury keing for tke defendant, tke plaintiff appeals. There are three exceptions, in tke record, the first two keing to rulings on the evidence, and tike tkird to the action of tke court in refusing to grant tke five prayers offered by tike plaintiff, and in granting tke court’s own instruction. Tke first and second exceptions were taken to tke refusal of tke court below to allow tke witness Mason to answer tke following questions.: “In what manner was. tke work of unloading cars by tkis colored labor done, and state whether, when freight was taken off oars and put on tike platform, it was carefully and safely piled in place” ? We find no error in these rulings.

The answers to the questions asked would necessarily have included testimony regarding the- manner in which the defendant’s servants piled freight on other days and at different places on tke platform, and such, testimony would, in our opinion, have been irrelevant to tike issues in tkis case. Tke tkird exception embraces1 tke rulings of the court, in rejecting tke five prayers offered by tke plaintiff, and tke action of tke court in granting its own instruction. Tke court’s instruction, which was tke only one given tke jury, was based on tke theory that Miller could not recover unless tke jury found that tke truck driver, Walls, had directed him to go in amongst freight of other consignees to get out tke freight tke truck driver had come for, and under tkis instruction tke jury found a verdict for tke defendant. We do not consider it necessary to pass upon tke validity of tke foregoing instruction, nor upon tke correctness vel non of tke prayers offered by tke plaintiff, because in our opinion tke second prayer of tke defendant, asking 'that tke ease be taken from the jury on tke ground of contributory negligence, should have been granted, and an examination of the legal principles involved, and tke facts in tkis case will show clearly tke reasons for tkis conclusion.

Assuming, without deciding