Baltimore & O. R. Co. v. Davis

• Decision Date: 09 July 1964
• Docket Number: No. 419,419
• Citation: 235 Md. 568,202 A.2d 348
• Parties: The BALTIMORE AND OHIO RAILROAD COMPANY v. Lester DAVIS.
• Court: Maryland Court of Appeals

Page 568

235 Md. 568

202 A.2d 348

The BALTIMORE AND OHIO RAILROAD COMPANY v. Lester DAVIS.

No. 419.

Court of Appeals of Maryland.

July 9, 1964.

Fenton L. Martin, Baltimore (Hinkley & Singley, Baltimore, on the brief) for appellant.

Amos I. Meyers, Baltimore (Louis J. Glick, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

In this action brought in the Superior Court of Baltimore City by a railroad employee against the employer under the provisions of the Federal Employers' Liability Act for injuries sustained by the employee as a result of having fallen into an elevator shaft, the questions on appeal relate to the sufficiency of the evidence as to employer negligence and the correctness of court instructions that required the jury to use a measure of speculation or conjecture in arriving at its verdict.

Lester Davis, employed by the Baltimore and Ohio Railroad Company (B. & O. or railroad company) as a tallyman and trucker, was assigned to handle freight in an enclosed two floor pier at the Locust Point terminal in Baltimore City. The pier, which extends in a north-south direction with the shore end facing toward the south, is divided on each floor by a fire wall between its east and west sides. In that area of the pier between the fire wall and the shore (the part of the pier with which we are concerned) there are four elevators, two on the east side directly opposite two on the west side. The elevators on the east side of the pier, as well as those on the west side, are approximately one hundred feet apart, one being located toward the fire wall (or north) and the other toward the shore (or south). The elevators are not built against the walls, and each can be entered from either its east or west gate. There is an aisle or passageway on each side of the pier between the outside walls and the elevators.

At the time of the accident, stacks of palletized sugar approximately five feet high were arranged in the center of the second floor extending from the two northern elevators to a point even with the two southern elevators (hereinafter referred to separately as the shore-end east elevator and the shore-end west elevator and collectively as the shore-end elevators).

According to Davis, his foreman told him to bring certain boxes of merchandise from the second floor of the pier to the first. While on the second floor searching for the boxes of merchandise, he walked to the vicinity of the shore-end east elevator and stopped to examine the list of merchandise he was using. The elevator was then on the first floor, but the west gate guarding the elevator shaft was propped six or seven feet above the floor by a board. As he was facing east toward the elevator looking at a box, a fork lift tractor struck him in the back. He slid across the floor on his abdomen and fell into the elevator shaft and landed on his shoulder or side on top of the elevator, and the tractor landed beside him with its blades pointing upwards. Davis further testified that he knew the B. & O. employee, who had been operating a tractor on the second floor on the date of the accident, but did not identify him or anyone else as its operator at the time he said it struck him. Although Davis stated that he had never operated a tractor, his employment was terminated about three weeks later for the unauthorized use of a tractor on January 2, 1959, the date of the accident.

A longshoreman (Leroy Walden), testifying on behalf of Davis, stated that he had been on the second floor of the pier at the time of the accident. As he was walking south in the aisle on the east side of the pier and had gotten about half way between the two east-side elevators, he noticed a man standing with a piece of paper in his hands facing the east gate of the shore-end east elevator. (Note that Davis, by testifying that he was facing east, put himself in the position of facing the west propped up gate.) Walden glanced away, and 'all at once' or 'just a second later,' he heard an impact and someone scream. He went to the elevator shaft and saw Davis and the tractor (with its blades upwards) on top of the elevator. The east gate of the elevator was broken. He did not know where the men who helped Davis out of the shaft had come from and had not seen the tractor at any time until his arrival at the shaft after the accident. But he stated that just before he got to the elevator, after hearing the impact, he saw a man walking away 'fast' from the other side (apparently meaning the west side) of the elevator toward the shore-end of the pier. He saw the man's back, not his face, and knew only that he was tall, heavey set and was wearing a blue coat. He was 'pretty sure' that the man was not a longshoreman and 'almost sure' that he was a B. & O. employee. When asked whether or not he had seen this man jump off the tractor, he replied that he did not know where the tractor had come from or who was operating it, and that he did not see the man jump off it.

The railroad company produced as a witness the regular operator (Arthur Brown), who had been operating the tractor on the day of the accident. He testified that immediately before the occurrence he had parked the tractor to the south of the shoreend east elevator in order to go to the lavatory. While in the washroom, he heard a noise, came out, and found the tractor in an elevator shaft on the west of the pier. (Since all other witnesses designated the shore-end east elevator as the place of the accident, it may be that Brown meant to say that he had parked the tractor beside the shore-end west elevator and had found it in the elevator shaft of the shore-end east elevator.) Brown also stated that sugar was stacked between the two shore-end elevators.

Another B. & O. employee (Robert Byrd) testified that there were no stacks of sugar between the shore-end elevators and that at the time of the accident he was standing between them; that the tractor was parked beside the shore-end west elevator; and that he saw Davis get on the tractor and back it across the pier through the wooden elevator gate (probably the west side entrance) and into the shore-end east elevator shaft.

Two witnesses were called by Davis in rebuttal. One of them (Freeman Miller), another railroad employee, testified that Byrd worked in the same 'sugar gang' as himself and that at the time of the accident he and Byrd, who had his eyes closed, were sitting next to each other on some sugar bags near the shore-end west elevator. He did not witness the accident because the sugar was stacked too high to see the shoreend east elevator, but he did hear a scream. The other witness (Leon St. Rose), another railroad employee and a member of the 'sugar gang,' testified that Byrd had not been working with them on the day of the accident and that he heard a scream but did not see the accident because he was on the west side of the pier and the stacked sugar prevented him from seeing the shore-end east elevator. Both Miller and St. Rose ran to the shore-end east elevator shaft after hearing the scream and helped Davis get out.

The railroad company moved for a directed verdict at the close of all the evidence. The motion was denied and the jury returned a verdict for Davis in the amount of $10,000. The court also denied a motion for judgment n. o. v., and this appeal was taken.

The basic issue on this appeal, aside from that concerning the instructions, is whether or not there was sufficient evidence of negligence on the part of the employer to allow the case to go to the jury. This issue is governed by the standards of proof required by the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, § 51 of which provides in pertinent part:

'Every common carrier by railroad while engaging in commerce between any of the several States * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

Although state courts (under § 56 of 45 U.S.C.) have concurrent jurisdiction with the district courts of the United States to try cases brought under the F.E.L.A., the question as to what constitutes negligence under the act is a matter of federal law and the federal decisions are controlling. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1026, 93 L.Ed. 1282 (1949).

In Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944), the Supreme Court of the United States said that in order to recover under the F.E.L.A., the claimant must prove that the...