Baltimore Elevator Co. v. Neal
| Citation | 5 A. 338,65 Md. 438 |
| Parties | BALTIMORE ELEVATOR CO. v. NEAL. |
| Decision Date | 23 June 1886 |
| Court | Court of Appeals of Maryland |
Appeal from superior court, Baltimore city.
John H. Thomas, for appellant.
J Morrison Harris and W. Hall Harris, for appellee.
The defendant in this case is the owner and operator of an elevator in the harbor of Baltimore, the business of which is the receipt, storage, and transfer of grain from and to vessels, and other conveyances engaged in the business of transportation; and the plaintiff was a laborer employed in the service of the defendant in July, 1883, when the injury was received for which this action was brought. The plaintiff was engaged as a laborer in shoveling grain from the cars into the hoppers of the elevator; and, so employed, he was ordered by the foreman, whose order he was required to obey to assist in hauling in and fastening to the pier of the elevator a square-rigged vessel to be loaded from the elevator, and it was while those in charge were engaged in the act of placing this vessel in position at the pier that the accident occurred, resulting in the injury to the plaintiff. The vessel had been brought to the pier by, and was in the charge of, a steam-tug commanded by an employe of the defendant; and the specific act of negligence or unskillfulness alleged is that the captain of the tug neglected to have yards of the vessel properly placed or stayed, so as to avoid contact with the elevator building while in the act of being placed along-side the pier, and in consequence of this neglect of duty the yards of the vessel came in contact with the building, and knocked off a parcel of slating, which fell upon the plaintiff and inflicted the injury complained of.
In the declaration, containing but a single count, after alleging the duty of the defendant to employ competent and careful servants and agents in conducting its business, and that the plaintiff was employed as one of its servants, the latter proceeds to allege that, while he was engaged in his work as such servant or employe, he was, by reason of the negligence and want of proper care and skill of certain servants of the defendant, who were unfit and incompetent persons to be such, and by reason of the failure of the defendant to exercise due and reasonable care and diligence in and about the control and management of its said work, and in and about the selection and employment of all agencies and instrumentalities appertaining to the conduct, direction, and prosecution thereof, and while in the execution of an order from a servant of the defendant whose orders he was bound to obey, in and about assisting in the mooring of a vessel to the building or wharf of the defendant, in connection with the prosecution of the said business, and which vessel was at the time under the control and management of the defendant, by its agents and servants, and was pushed or propelled up to the said wharf by means of a steam-tug, operated and directed by such agents and servants of the defendant, and which said vessel was by them so negligently, carelessly, and unskillfully controlled and managed, and so negligently and unskillfully pushed up to said wharf or building, as that the spars thereof, or one of them, was or were violently brought in contact with and driven against the side of the said elevator building, whereby sundry slates or tiles were broken off, and fell upon the plaintiff, inflicting upon him great hurt and injury, etc. The case was tried upon the general issue that the defendant did not commit the wrong alleged.
The action, as we perceive from the declaration, is by a servant against the master, to recover for injuries resulting from the alleged negligence or misconduct of one who is supposed to have been a fellow-servant engaged in the same general employment with the plaintiff. In such case the principle is that the master is not liable for such injuries, unless he is shown to have been guilty of negligence, or the want of ordinary care, either in the original employment, or the subsequent retention in service, of the servant whose alleged misconduct has caused the injury. Nor is the liability of the master enlarged or made different by the fact that the servant who has suffered the injury occupied a grade in the common service inferior to that of the servant whose misconduct caused the injury complained of; and for the same reason it is not necessary to the exemption of the master from liability that the servant suffered the injury, and the one causing it, should be at the same time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work, and performing duties and services pertaining to the same general business, the master cannot be held liable to the one servant for injuries caused by the negligence or unskillful conduct of another, unless he has been negligent in employing or retaining in his service such negligent servant. This is now the settled doctrine, by the great preponderance of authority, both in this country and in England. Here, on the facts of the case, there would seem to be no doubt or room for question but that the captain of the steam-tug and the plaintiff were fellow-servants, engaged in the same common service; that is, operating and carrying forward the business of the elevator, though employed in different departments of that service. And, such being the relation of the two employes, the two principal questions involved in the trial of the case were (1) whether the injury suffered by the plaintiff was caused by the negligent or unskillful management by the captain of the tug in attempting to place the vessel in tow in position along-side the pier; and, if so, (2) whether there was want of ordinary care and diligence on the part of the defendant in the employment, or in the retention in service, of the captain of the tug. The onus of proof was upon the plaintiff to establish affirmatively both of these propositions; and upon his failure to prove them both he could have no ground of action against the master.
There were a good many witnesses examined, and several to the main facts involved, and their testimony is by no means free from conflict. In the course of the trial several exceptions were taken by the defendant as to the admissibility of evidence, and the question there raised we will first consider.
The first and second bills of exception present substantially the same question, and those exceptions will therefore be considered together. The question presented is whether the witness Crawford was competent to express an opinion, as an expert, upon the state of the case as he observed it, and whether the vessel was skillfully or negligently brought to the pier by the captain of the tug to be placed in position to be loaded. This witness testified that he was, at the time of the accident, and had been for eight years, foreman of the defendant in conducting the work of the elevator, and during that time had frequent and constant opportunities of observing the way in which the tug brought vessels into the wharf at the elevator. He also testified that he had been engineer and assistant engineer in different steamers, plying to different parts of the country, and that he was familiar with the operation of tugs about the harbor of Baltimore, having been about the harbor for 23 years. He was certainly competent as an expert; and he was asked to give his opinion upon the state of the case as he witnessed it actually occurring. In the case of Malton v. Nesbit, 1 Car. & P. 70, before Lord Chief Justice ABBOTT, it was held that you might call experienced nautical men, and ask them whether, in their judgment, particular facts, which had been proved, amounted to gross negligence in the captain of a vessel or not. And so, in the case of Fenwick v. Bell, 1 Car. & K. 312, in an action for running down the plaintiff's ship, it was held that a nautical witness might be asked whether, having heard the evidence and admitting the facts to be true, he was of opinion that the collision could have been avoided by proper care on the part of the defendant's servants. 1 Greenl. Ev. § 440. The principle of those cases would seem to be quite applicable here. We are of opinion that there was no error in overruling the objections made as stated in the first and second bills of exceptions, and in allowing the witness to answer the questions propounded.
The third bill of exception presents the question whether, upon former occasions, when...
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