Baltimore & O. R. Co. v. Brown

• Decision Date: 28 May 1906
• Docket Number: 26.
• Parties: BALTIMORE & O.R. CO. v. BROWN.
• Court: U.S. Court of Appeals — Third Circuit

146 F. 24

BALTIMORE & O.R. CO. v. BROWN.

No. 26.

United States Court of Appeals, Third Circuit.

May 28, 1906

Wm. B Linn, for plaintiff in error.

Thomas Raeburn White, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.

GRAY Circuit Judge.

An action in trespass was brought in the court below by the defendant in error, hereinafter called the plaintiff, against the plaintiff in error, hereinafter called the defendant, to recover damages for personal injuries sustained by plaintiff while employed by defendant. The plaintiff had a verdict upon which judgment was entered in his favor in the court below, and the writ of error sued out by defendant brings the case into this court. The evidence set forth in the record shows that the defendant had twelve freight stations in Philadelphia, all under the supervision of a general freight agent, who was represented at each station by an assistant freight agent. One of these freight stations was a certain pier No. 12 in the Delaware river, to which freight cars of the defendant company were brought upon barges, which were moved in a dock alongside the pier, to be unloaded and loaded. One of these barges was so moved at the time of the accident complained of, and hogsheads of tobacco were being loaded from the pier into the cars on the barge. To accommodate the cars, there were two separate tracks, one on each side of the barge and parallel thereto. Between the tracks a platform ran lengthwise of the barge, six or eight feet wide, and at an elevation a little lower, or nearly even with the floors of the cars on each side. Between the cars and the edge of this elevated platform, there was an open space about 12 inches wide. For the purpose of facilitating the loading and unloading of heavy articles from or onto the platform, iron plates of sufficient length and width were provided by the defendant company to bridge the space between the door and the side of the car and the platform. At the time of the accident, large casks or hogsheads of tobacco were being rolled from the pier on a gang plank into one of the cars on the track next to the pier, across the same and out of the door on the opposite side of the car onto the platform, to be loaded into a car on the other track. This was being done by four or five men employed by defendant, one of whom (Mulch) acted as gang boss or foreman, and directed the work. One of the hogsheads had been thus rolled from the pier through the car nearest thereto, onto and across the platform, to the car to be loaded, one of the iron plates provided for that purpose being used to bridge the open space between the car door and the platform. In the movement of this hogshead, the gang boss assisted, standing with another man in front of the hogshead to steady it, as it was rolled across the floor of the car and out the opposite door onto the platform. It then appearing that the doors of the car through which the hogshead were to be rolled, were not conveniently situated with reference either to the pier or to the car to be loaded on the other side of the platform, the cars next the pier were pushed ahead some feet, and the iron plates from the doors to the platform were necessarily displaced. Mulch then summoned the plaintiff, who had been working at some other place, to take his (Mulch's) place in loading these hogsheads into the cars on the barge. It seems that it was more convenient to so load them when the tide was high, and as it was then falling, Mulch told one of the men engaged in the work, to never mind replacing the iron plates from the door of the car to the platform, as he 'wanted to rush the hogsheads in. ' By his direction, the plaintiff assisted in moving the next hogshead from the pier, and when it was being rolled across the first car, by like direction he took the place of Mulch had before occupied, in front of the hogshead, between two other men, walking backwards toward the door near the platform, and stepped out, expecting, as he said, the plate to be in its usual position at the door. Owing to its absence, he stepped into the hole or space between the car and the platform, and fell, the hogshead rolling over him, whereby he suffered the injuries complained of. Neither the general freight agent, nor the assistant freight agent in charge of this particular station was present, or had in any way interfered with the placing of the plates at the doors of the cars.

The plaintiff's contention as to the liability of the defendant, is based upon the following averments in the declaration:

'The defendant, its superintendent, or vice principal, with full knowledge of the danger and without informing the plaintiff of it, specifically ordered the plaintiff in front of the cask and that he should steady it as it was being rolled into the car. In pursuance of the company's orders, the plaintiff, believing he was in perfect safety, in order to steady the cask, was forced to step backward, and in doing so fell into a hole on the barge, unknown to him at the time, but known to the defendant and vice principal, whose duty it was to have the hole covered or to inform the plaintiff of the danger.'

It is in evidence, and not disputed, that the person responsible for not replacing the plates after the movement of the cars, was Mulch, the gang boss or foreman who had that authority and control that is necessarily reposed in one of several men engaged in such work as was here being performed. He was in no sense such a vice principal or representative of the defendant, as to take him out of the class of fellow servants of the plaintiff, or to impose liability upon the defendant, even if the situation had been such as to attach liability to the interference of a vice principal. If plaintiff has a right to recover at all, it must be upon the ground that the injuries of which he complains resulted from the neglect of the duty of the master to exercise reasonable care in providing a safe place in which and safe tools and appliances with which his servant is to work, and also due care in the selection of those with whom he is to work. This duty is an absolute duty, sometimes called a personal duty of the master, and cannot be delegated by him so as to avoid liability for its nonperformance. The one who may be charged for the time being with the performance of this duty, performs it for and in place of the master, and no matter what his grade of service may be, whether highest or lowest, his default is the default of the master.

In cases like the present, it is essential, then, to inquire whether the negligence averred pertains to such an absolute or personal duty of the master. There is no suggestion that there had been any lack of care in the selection and employment of Mulch and the other fellow servants of plaintiff. The physical situation disclosed by the testimony was not more than ordinarily dangerous. The elevated platform that ran between the tracks on the barge for the convenient loading and unloading of cars across the same, was faultless in structure, so far as the testimony shows, and at no more than the proper distance (12 inches) from these tracks. It can hardly be said that, even without plates or gang boards at all, it would have been an unsafe place in which to work so far as the ingress and egress to and from the car by the workmen was concerned, the open space between the platform and the car being obvious to any one with ordinary faculties of perception. These plates were...