Baltimore & O.R. Co. v. Whitacre
| Decision Date | 06 January 1915 |
| Docket Number | 9. |
| Citation | 92 A. 1060,124 Md. 411 |
| Parties | BALTIMORE & O. R. CO. v. WHITACRE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County; Robert R. Henderson and M. L. Keedy, Judges.
Action by Harvey W. C. Whitacre against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.
George A. Pearre, of Cumberland (H. H. Keedy, Jr., of Hagerstown, on the brief), for appellant.
Albert A. Doub, of Cumberland (Frank A. Perdew, of Cumberland, and Charles D. Wagaman, of Hagerstown, on the brief), for appellee.
This court is now called upon, for the first time, to apply, in an action to recover for personal injury, the provisions of the act of Congress of April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases." The special importance lies in the fact that under that act the established rules of the common law with regard to contributory negligence negligence of a fellow servant, and assumption of risk were radically modified. The case presented brings up for review the rulings of the trial court upon demurrers to the declaration, 46 exceptions reserved to the admission or rejection of evidence, and one to the action of the court upon the prayers. It will not be necessary, however, to consider each one of these in detail, four of the bills of exception, the fifth, seventeenth, fortieth, and forty-third, having been abandoned by the counsel for the appellant in his brief, and the large proportion of the others will be sufficiently dealt with in an expression of the views of this court upon the act in question, as applied to this particular case.
The important facts in the case are as follows: Harvey W. C. Whitacre had been for several years all employé of the Baltimore & Ohio Railroad Company as a brakeman, and at the time of the happening of the accident in question, June 23, 1913, was what is known as front brakeman on a freight train, having a run from Cumberland, in the state of Maryland, to the Cumbo yards, near Martinsburg, in the state of West Virginia. The railroad was at the time a common carrier, engaged in doing interstate business, and the employment of Whitacre was in the conduct of interstate business. On the morning of the day named, Whitacre was called about 1 o'clock, with orders to join a train, in his capacity of brakeman, which was to leave Cumberland at 2 o'clock. In response to that call, at or about the appointed time, he reported at the caller's office, and then proceeded through the yard of the railroad company to join the engine, which was to be coupled to the train at the Evitts Creek yard, some half mile distant. The locomotive was then standing upon a "ready track," and as the brakeman approached it he did not see the engineer, but did see the fireman and Whitacre put on his working clothes. He then inquired of the fireman whether he was ready to start, and received the answer, "No, not quite." "The tool boy had not been there and had left him no tin cup, and he asked me to go and hunt the tool boy and get a tin cup." This is the testimony of the plaintiff himself. The fireman's version differs somewhat. Acting upon what the plaintiff understood to be the order or request of the fireman, he did start to look for the tool boy and tin cup, and saw at a little distance a moving light which he followed, supposing it to be a lantern in the hands of the tool boy. Suddenly the light disappeared around some object, subsequently ascertained to be an engine. The plaintiff then took a few steps backward and fell into a cinder pit, which was near the center of the yard, and used for the purpose of raking the cinders into from the firepan of the locomotive. This cinder pit was of large size, approximately 180 feet in length by 50 feet in breadth, and varying in depth from 3 1/2 to 9 feet. It was of recent construction, having been in use but about six months, and was what is known as a water pit, as distinguished from a dry pit. There was no railing around the pit, but at or near the center it was spanned by iron or steel beams, upon which was worked a traveling crane, that was used in the daytime for the removal of the cinders from the pit. The allegations contained in the declaration, and borne out in the testimony, were to the effect that it had been raining; that the night was somewhat thick and foggy; and that the top of the water in the pit was covered to a greater or less extent with ashes, which made it difficult, if not impossible, to distinguish it in appearance from solid ground. When the plaintiff fell into the pit he was wetted up to his waist, and fell across an iron bar or rail, but clambered out, returned to his engine without the tin cup, and the engine proceeded to the Evitts Creek yard, where it was attached to the cars to be hauled to the Cumbo yard. Tile plaintiff performed a portion, if not all, of his regular duties as brakeman, which involved getting down and coupling and uncoupling the air pipes between the tender of the engine and the front freight car. This operation was repeated several times between Cumberland and the Cumbo yard. He did, however, while on the trip, complain of his accident to the conductor of the train, and an accident report was made out at Hansrote, one of the intermediate stations. From the Cumbo yard the plaintiff returned to Cumberland on a passenger train. The following day he consulted a physician, who, after examining him, found a rupture, for which an operation was performed, and from which he recovered. After some months the plaintiff complained of pain in his spine, for which he was treated by applying a white hot iron; and still later there developed what was claimed to be a fracture of the bone of the thigh containing the socket, with which the head of the femur articulates. These are in substance the injuries, to recover for which the suit was brought. Some others were set out in the declaration, but not substantiated by the proof.
The declaration in its various counts charges negligence--negligence in the omission to supply the tin cup; negligence in the construction and maintenance of the cinder pit; and inferentially negligence in allowing the ashes deposited in the cinder pit, or some portion of them, to obey the laws of gravitation, and float on the top of the water.
The grounds upon which liability is denied by the defence are absence of negligence upon the part of the railroad company, both as to the tin cup and the construction of the pit; secondly, that the risk, if risk there was, was one assumed by the plaintiff when he entered upon the employment, and it was further urged that, in leaving the engine and going to look for the tool boy, the plaintiff was doing an act not materially or directly connected with interstate commerce, and that therefore the act of Congress had no application.
The first question to be answered is as to the applicability of the act of Congress. It is difficult to reconcile the various decisions, even to reconcile those of the same court. A few propositions, however, are clear. These are, that the act was intended to apply only in certain cases, thus recognizing that there was a class of cases which might arise between a common carrier by railroad and its employés in which the act had no applicability. This was distinctly recognized in the case of Ill. Cent. R. R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163, in an opinion by Justice Van de Vanter, and is further emphasized by section 1 of the act.
And in any given case the measure of the responsibility of the carrier is that of ordinary care. Seaboard Air Line v. Horton, 233 U.S. 501, 34 S.Ct. 635, 58 L.Ed. 1062.
The argument and brief of the railroad company devoted much attention to the question of primary negligence; but under the wording of the act this contention cannot be held sound. If there was any act of negligence upon the part of the railroad company, the even though there was contributory negligence upon the part of the plaintiff, or of a fellow servant, and the plaintiff was, at the time of the happening of the accident, engaged in interstate commerce, and there had been no assumption of the risk upon his part, then the act must be held to apply.
That the plaintiff must be regarded as being engaged...
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