Yates v. McCullough Iron Co.

Citation16 A. 280,69 Md. 370
PartiesYATES v. MCCULLOUGH IRON CO.
Decision Date22 November 1888
CourtCourt of Appeals of Maryland

Appeal from circuit court, Cecil county; JOSEPH A. WICKES, Judge.

Action by James M. Yates against the McCullough Iron Company, for damages sustained through defendant's alleged negligence. Verdict and judgment for defendant, and plaintiff appeals.

Argued before ALVEY, C.J., and MILLER, IRVING, BRYAN, YELLOTT, and MCSHERRY, JJ.

A. Constable, for appellant.

William J. Jones and L. M. Haines, for appellee.

MILLER J.

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 Northeast, 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 rollingmills, at Northeast. The building was about 80 feet long, and the story to which the coolers were hoisted about 20 feet from the ground. Beginning at a point directly over the elevator was an overhead track about 12 feet above the floor, extending the entire length of the 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 overhead track to the end of the building, and there dumped it. When empty, these coolers weighed about 1,200, and when filled about 4,000, 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 coolers 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 the 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 the 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: (1) That the building was too light 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 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 chiseling 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. (2) 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. (3) 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 towards 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 be 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 what instructions 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 be 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 defense that the defendant employed a skillful 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 and tenth, prayers, and these present but two questions.

1. The first arises thus: The plaintiff, not content with the granting of his first prayer, by 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 well 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 out of repair, yet, if they further find that the plaintiff knew of such defect or want 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 of ordinary care might have known of them, then he cannot recover, notwithstanding the jury may find that the machinery was in fact imperfect and dangerous. Are these rulings, as applicable to the present case, correct?

We take it to be 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 appliances 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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT