Winkelmann & Brown Drug Co. v. Colladay

Briscoe, J., delivered the opinion of the Court. The appellant is a corporation conducting the wholesale drug business at No. 31 Sharp Street, Baltimore. The appellee, who was plaintiff below, was employed by the company and was seriously injured by the falling of a dumb-waiter, while engaged in work on the second floor of the company’s warehouse. It is alleged by the declaration that the plaintiff was employed by the defendant and had charge of the defendant’s patent medicine department, on the second floor of its warehouse; that it was necessary for the plaintiff to receive orders which were given to him by calling in a loud voice from ⁸⁹ the first floor through the shaft of a dumb-waiter which was operated in the warehouse, and that on or about the 25th day of November, 1894, the plaintiff being in the discharge of his duties, and inclining his head toward the shaft of the dumb-waiter, as he was compelled to do, in order to discharge his duties, and in order to hear the orders given in the manner aforesaid, was violently struck upon the head by the falling of the dumb-waiter, which fall was caused by the negligence of the defendant in not providing a proper dumb-waiter and by its negligence in not properly maintaining the same, and the rope connected therewith.

At the conclusion of the testimony of the plaintiff, the Court was asked by the defendant to take the case from the jury and its prayers to this effect having been refused, the case was submitted upon the plaintiff’s evidence. The plaintiff offered two prayers, and the defendant eight additional prayers. The plaintiff’s prayers were granted, and-the defendant’s third, fifth, sixth and seventh were granted, but its fourth, eighth, ninth and tenth were rejected. The case was tried before a jury and the judgment being for the plaintiff, the company has appealed.

The questions are solely upon exceptions to the rulings of the Court upon the prayers and they come to this: was the defendant guilty of negligence, and second was the plaintiff guilty of such contributory negligence as would have warranted the Court in withdrawing the case from the jury. The evidence shows that the plaintiff was a young man twenty-four years of age and had been employed by the defendant company about six years at its place of business in Baltimore. At the time of the accident he had charge of the patent medicine floor, which was on the second story of a five-story warehouse, where it was his duty to fill orders for medicines and to send them down to the first floor by means of an elevator or dumb-waiter. This apparatus is described as a shaft running from the cellar to the fifth story of the warehouse, within which two boxes made of oak, each weighing about forty pounds, are used as dumb-waiters for hoisting to the upper floors, and lowering to the floors, ⁹⁰ the goods that are needed from time to time to fill orders.

There are speaking tubes between the first and other floors, except the second, and the employees on the first and second floors were compelled to'use the shaft as a means of communication in giving orders from one floor to the other. The plaintiff stated: “ The way we got orders out, from the second floor, the only way we could communicate from the second floor to the others, we had to incline our head in the shaft of the dumb-waiter.” “ The reason we had to do that was to get the sound — we could not hear what the orders were, because there was such a draught coming up there; we had no speaking tubes, and it was our place to do it.” And as to the accident, he stated, that all he knew about it was, that on the 24th of November, 1894, between a quarter after five and five thirty, the bell was rung for an order; “ I inclined my head on the side of the shaft to get the sound of what was said, to find out what the order was and just when I put my head there the waiter fell from the fifth floor.” He further testified that this was the only and usual way to receive orders between the two floors an'd it was the custom of the other employees to thus receive and give orders through this shaft. It further appears that