Yates v. McCullough Iron Co.

Miller, J., delivered the opinion of the Court. The plaintiff was injured while in the service of the defendant, a corporation, engaged, among other enterprises, in making charcoal by a patent process. Its works for this purpose are in Cecil County near the village of North East, and the plaintiff was employed at these works. The charcoal, when the process was finished, was taken from the retorts in large iron buckets called ££ coolers,” and these when cooled were hoisted by an elevator into the upper story of a shed or building, where the charcoal was dumped from them upon the floor, and thence through shutes affixed to the sides of the building run into wagons and hauled to the Company’s Rolling Mills at North East.

The building was about eighty feet long, and the story to which the coolers were hoisted about twenty feet from the ground. Beginning at a point directly over the elevator was an over-head track about twelve feet above the floor, extending the entire length of the ³⁷⁴ building, and traversed by a wheel to which was appended a yoke with a rod at each end, and these rods by means of trunnions were attached to the sides of the coolers. The elevator well was surrounded by a circular platform three feet wide, raised about two feet from the floor, and the top of the elevator was brought up a few inches above this platform. The cooler was then by the means described attached to the wheel on the railway, and workmen standing behind and on its sides pushed the cooler along this over-head .track to the end of the building and there dumped it.

When empty these coolers weighed about twelve- hundred, and when filled about four thousand pounds. The overhead track was in sections, and was bolted’by iron rods called hangers to the-rafters of the building. On the 24th of May, 1886, plaintiff and another were at work pushing these co'olers along this track, and having pushed a loaded cooler out and dumped it, were bringing it back to the elevator for the purpose of returning it to retorts below. When it reached the platform around the elevator well, by being slightly tilted to one side it struck the platform, the wheel left the track, and the yoke with the other rigging in its fall struck the plaintiff on his head causing the injuries for which he brought this action.

The plaintiff alleged there was negligence on the part of the company in three particulars. 1st. That the building was too slight to support the .immense weights carried by this elevator track ; that the track was bolted by rods to the rafters, and these rafters as well as the entire structure itself, were insufficient for the service required, in consequence of which the track sagged under the heavy weights and got out of line ; that the end of one rail would get higher than its abutting neighbor, and then, to remedy these inequalities in the track, the end of the highest rail would be ³⁷⁵ chiseled off;' that afterwards when additional hangers were placed at the end of the rails, though the abutting ends would be thus held firmly together, the gutters produced by the former chiselling would remain, and into these gutters the wheel passed as each cooler was pushed over it; that the force exerted by those pushing the cooler; over one gutter would unduly increase its speed as it approached the succeeding gutter into which it was liable to rush at too rapid a pace. 2d. That the rail over the elevator was originally placed or suffered to become out of line laterally, the effect of which was to cut away the inner flange of the wheel which gave it-a less steady motion and made it less tenacious of the track. 3rd. That the insufficient timber in the building caused the track over the elevator to sag until the cooler, even when empty, was only about one inch above the platform surrounding the elevator, the effect of which was largely to add to the risk of its striking the platform as it passed over it; and that at the time of the injury the force exerted to get it over the gutters in the outer joints had increased its pace so that when the cooler came to the defective joint over the elevator, Maffitt, the other workman, was unable to prevent its tilting slightly toward his side and striking on the floor of the platform.

The testimony as to negligence on the part of the defendant and contributory, negligence on the part of the plaintiff'was, as is usual in such cases, conflicting, and it need not he stated. Instructions were asked on both sides. The Court granted all those proposed by the plaintiff except his second and third, and also granted seven of those asked by_ the defendant. The plaintiff's prayers which were 'granted are not before us for review (he being the appellant) but it is important to notice them briefly, in order to see wbat instruc ³⁷⁶ tions the Court gave the jury at his instance.

By-granting his first prayer the jury were instructed that it was the defendant’s duty to use reasonable care that the machinery -with which the plaintiff in his capacity as servant was required to work, and the building in which the machinery was placed, should he reasonably safe, and if they find this building or machinery was through the want of reasonable care on the defendant’s part unsafe in its original construction, or subsequently became unsafe for want of necessary repairs, and that the plaintiff was injured in consequence thereof, then he is entitled to recover, unless they further find that he knew that the building or machinery was unsafe and dangerous, or ought by the exercise of reasonable care on his part to have known it, or unless by his own negligence he directly contributed to the accident. They were also instructed, at the instance of the plaintiff, that if they found that the defendant failed in its duty to use reasonable care to furnish him reasonably safe machinery with which to work, and that the plaintiff was injured in consequence thereof, then it is no defence that the defendant employed a' skilful engineer to inspect and superintend the erection of said machinery; and also that if they found that the plaintiff was injured as stated in his first prayer, then in order to defeat a recovery on the ground of contributory'negligence, the onus is upon the defendant to satisfy the jury that the plaintiff was guilty of negligence which directly contributed to the accident. The defendant’s fourth, fifth and eighth prayers relate to the same subjects and were granted. These are manifestly correct and though excepted to in the Court below, no objection has been made to them in argument in this Court.

The only exceptions relied upon here are to the rejection of the plaintiff’s second and third, and to the granting of the defendant’s sixth ³⁷⁷ and tenth prayers ; and these present but two questions. 1st. The first arises thus. The plaintiff not content with the granting of his first prayer, hy his second asked the Court to instruct the jury that if they found that the machinery was, owing to some defect in it or in the building in which it was placed, unsafe and dangerous, by reason of the negligence of the defendant, then in order to establish that the plaintiff assumed the risks involved in using it, it is not sufficient to show that the machinery was defective, and that such defect was known to the plaintiff, but it must appear that the danger was known to him as wmll as the defect which caused the danger, or that by reasonable care on his part it would have been known to him. This instruction the Court refused to give, and by granting the defendant’s sixth prayer, instructed the jury that notwithstanding they may find that the machinery was in some respects defective, or oiit of repair, yet if they further find that the plaintiff knew of such defect or waut of repair, or by the use of reasonable care might have known it, and continued in the use of the machinery in the service of the defendant with that knowledge, or after he might by the use of ordinary care have obtained it, and that the accident complained of happened when he was thus in the use of the machinery, from such defect or want of repair, he cannot recover.

The Court also granted the defendant’s seventh prayer, to the effect that if the jury find that the accident occurred from the use of defective machinery, the character, construction, defects, and operation of which were open and obvious, and that the plaintiff knew of such defects, or by the use o'f ordinary care might have knovrn of them, then he cannot recover, notwithstanding the jury may find that the machinery was in fact imperfect and dangerous. ³⁷⁸ Are these rulings as applicable to the present case correct ? We take it to he clear as a general rule, that the servant assumes all such risks arising from his employment, as he knew or in the exercise of a reasonable degree of prudence might have known were naturally and reasonably incident thereto, and he cannot recover against the master for injuries arising from such patent risks; and if, therefore, the machinery or aj>pliances which the master furnishes him contain obvious defects, of which the servant knew or as a reasonably prudent man might have known, or if he continues in the service after he has discovered, or by the exercise of reasonable care might have discovered, the existence of such defects, he cannot recover against the master for injuries resulting therefrom. It may be assumed that this rule applies only to patent or obvious defects, such as persons of ordináry care would be likely to discover, and that the servant is not, bound to inspect the appliances to see whether or not there are latent defects that render their use more than ordinarily dangerous, but is only required to ascertain such defects or hazards as are obvious to the senses. 2 Wood’s Master and Servant, (2d Ed,) sec. 376. Hence in cases where knowledge of the defects does not necessarily carry with it knowledge of the resulting danger, it may be proper for the Court to instruct the jury as requested in the plaintiff's second prayer.

But this is not a case of that character. Here the work the plaintiff was engaged in was the simplest kind of manual labor, and the machine he used was exceeding simple in its construction and operation. The story of the building in which it was located and operated, was open from the floor to the rafters. The wheel and track on which it ran were not more than seven feet above the eyes of a man of ordinary height, were open to view, with no part covered, or concealed, ³⁷⁹ and there was no tiling latent about the whole apparatus.

The plaintiff, we must assume, was a man of ordinary intelligence, for there was no proof that he was stupid or dull of intellect, that any of his senses were impaired, or that lie was not possessed of ordinary powers of observation. Moreover, lie was perfectly familiar with the machine and its working. He had worked with it for three months in the preceding fall and winter, and during that time the wheel, while he was working it, fell from the track at least once iu the same place it-fell on the occasion of this accident. It is true, he says, he was told it fell on the first occasion because it was worn out, and tliat a new one was put on which as far as he knew never came off again until the accident.

But the unevenness of the track, caused by the depression of the rails at the joints, continued, and the wheel was not secured, so that it could not leave the track until after the accident. During all this time, he admits he knew the difficulty of pushing the wheel over the joints, and that, it would stop at the joints. He also knew, as he admits, the importance of keeping the cooler level, especially as it approached the elevator platform. When he returned to the employment of the defendant in the spring of 1886, he asked to be put at the same work, and had been so engaged for about two weeks before the accident occurred, with the wheel and track in the same condition they were in when he left them iu the preceding winter’.

Under these circumstances, this, as it seems to us, is clearly a case where knowledge of the defects necessarily, and in legal contemplation, carried with it knowledge of the risk or danger, and not a case where knowledge of the defects could possibly warrant any other conclusion than that the risk was voluntarily incurred. In fact, the only risk or danger arising from the defects in the track complained of, was that they ³⁸⁰ might cause the wheel to jump or leave the track, and fall to the floor, and this was what actually occurred. Legal language has no meaning, unless knowledge such as the undisputed facts of this case, (and such as the defendant’s sixth and seventh prayers left to the finding of the jury,) show the plaintiff had, amounts to a voluntary encountering of the risk. In such cases the law imputes and'presumes knowledge of the risk or danger, and will not allow the injured workman to aver or prove that' he had no actual knowledge thereof.

The law as thus stated, and the sufficiency in similar cases, of the instructions contained in these granted prayers of the defendant, have heen sanctioned by repeated decisions of this Court. Wonder vs, Balto. & Ohio Railroad Co., 32 Md., 420 ; Balto. & Ohio Railroad Co. vs. State, use of Woodward, 41 Md., 298 ; Cumb. & Penn. R. R. Co. vs. State, use of Moran, 44 Md., 292, 293 ; Balto. & Ohio R. R. Co. vs. Stricker, 51 Md., 68 ; Penn. R. R. Co. vs. Wachter, 60 Md., 400 ; State, use of Hamelin, et al. vs. Malster & Reaney, 57 Md., 312, 313 .

In many of these cases, English authorities to the same effect are cited, and to these we may add the following observation made by Cockburn, C. J., in Woodley vs. Metropolitan District Railway Co., Law Rep., 2 Excheq. Div., 384: But looking at the matter in a legal point of view, if a man, for the sake of the