O'Connell v. Baltimore & O. R. R. Co.

• Decision Date: 28 October 1863
• Citation: 20 Md. 212
• Parties: PATRICK O'CONNELL v. THE BALTIMORE & OHIO R. R. CO.
• Court: Maryland Court of Appeals

20 Md. 212

PATRICK O'CONNELL v. THE BALTIMORE & OHIO R. R. CO.

Court of Appeals of Maryland.

October 28, 1863

APPEAL from the Superior Court of Baltimore City:

This was an action brought by the appellant against the appellee on the 17th of May 1858, in the Superior Court of Baltimore City, to recover damages for an injury sustained by him while riding upon the cars of the Balto. & Ohio R. R. Co., from one point to another of their road in the performance of his duties as laborer, in which capacity he was employed by the company. The pleadings in the cause are set out in the opinion of this Court.

Exception. At the trial of the cause the plaintiff proved that on the 7th of September 1857, being in robust health, he was employed with others as a laborer upon the Baltimore and Ohio Rail Road, in shovelling and pitching dirt and gravel into dump cars, to be carried to other parts of the road to be dumped out; that the cars were not quite loaded when the signal was given for the men to get into the cars, that the train might get out of the way of a coming Washington train. One Shaefer was the engineer, and Patrick Downey the boss of the train who directed the laborers in their work, and gave the orders when to stop work and get into the cars. The dump train moved very fast, and as they were rounding a curve, the car in which the plaintiff was dumped and threw out all the men but one, who clung to the upper side of it. The collar bone of one of the men was broken and the five toes of one of the plaintiff's feet were so mangled and mashed that they had to be amputated; and he now goes on crutches, will suffer pain as long as he lives, and will never be an able-bodied man.

The defendant proved that the conductor of the dump train " was a steady industrious man, of competent skill and experience in his business as foreman, and of general good habits and character; that " the car was in good order that it was the practice for the men who dumped the car to adjust it; that if the blocks of the cars had been out of order, they could neither have been loaded nor used on the track; that it is the duty of the engineer and foreman of the ballast train to examine the condition of the cars and see that they are properly adjusted; and that the train in question was entirely under the control of Downey.

The plaintiff offered nine prayers, in substance as follows:

1. If the plaintiff was employed as a common laborer to dig gravel and dirt on the sides of the road, and was transported to different points on the road where he was required to work, in the dump cars used in said business, and said cars were under the control and direction of a superintendent, one Downey, and of the engineer of the locomotive; and the plaintiff had nothing to do with, and in point of fact, took no part in the management of the train; and while being so transported and employed, the car in which he was riding by reason of a defect therein was upset, and the plaintiff thereby injured, the plaintiff is entitled to recover.

2. That if there was no defect in the car, but it was upset by reason of the negligence of the superintendent in not properly adjusting the mechanism which maintained the car in its horizontal position, the plaintiff is entitled to recover.

3. That if the failure to adjust the mechanism was due to a want of system in loading, unloading and righting the cars, there was not reasonable care, skill and prudence on the part of the superintendent, and the plaintiff is entitled to recover.

4. Is like the third, except it refers it to the jury to find whether the practice in loading, & c., was reasonable and prudent.

5. If the jury should find the facts in the first prayer, except that there was a defect in the car, they constitute prima facie evidence of a defect in the car or of negligence in the superintendent or engineer, and cast upon the defendant the burden of proving that the accident was not occasioned by a defect in the car, nor by the fault of the superintendent or engineer.

6. If the jury find the facts hypothetically stated in the last prayer, it devolves on the defendant the duty of proving that the disaster was not caused by a defect in the car, and that Downey was a person of competent skill, and in every respect qualified for his position, and that the disaster was not caused by negligence, want of skill or prudence on the part of Downey.

7. If the disaster was caused by a defect in the car, which by the exercise of ordinary care the defendant might have known and provided against, the plaintiff is entitled to recover.

8. If the accident was caused by the substitution of a wooden pin for an iron one, the plaintiff is entitled to recover.

9. That if by the rules and regulations of the company, it was made the duty of the superintendent to examine the cars and see that they were in a good and safe condition, and to send them for repairs, when necessary, to the workshops of the defendant, and that the superintendent knew the car was injured and defective, the plaintiff is entitled to recover.

The defendant offered the following prayers:

1st. " That if jury shall believe from the evidence that the plaintiff in this action was on the 7th September 1857, employed by the defendant as a laborer, along with others attached to a dirt train on the road of the defendants, and under the direction of a foreman, and that the said foreman and the said plaintiff and others employed with the said train were engaged in the common employment of repairing and keeping in order the said road, and that the said plaintiff was on that day riding in one of the cars of said train in the usual course of his employment, and that while so riding, the said car accidentally upset, and that the plaintiff was thrown out and injured thereby, then the plaintiff is not entitled to recover damages for such injury, unless he shall satisfy the jury by evidence, that the car in which he rode was not of approved construction and material when put upon the road of the defendants for use by the employees thereof, or that the foreman of said employees, or the co-employees of the plaintiff, were not persons of competent skill and experience and general good habits and character in their respective employments.

2nd. That if the jury shall believe the facts in regard to the employment, and also those in regard to the happening of an accident to the said plaintiff stated hypothetically in the first prayer, and shall also find from the evidence that the said accident was to be attributed to the use of a wooden pin made on the day of the accident by the foreman, in place of an iron one to keep in place the block, that prevented the car already referred to from upsetting, even then the plaintiff is not entitled to recover, provided the jury shall also find that the said car when put upon the road of the defendants for use by the employees thereof, was of approved construction and material.

3rd. That if the jury shall find from the evidence the facts in regard to the employment of, and accident to the plaintiff, stated hypothetically in the first prayer, and shall further find that the said accident happened in consequence of the car, on which the plaintiff was riding at the time being out of repair, and being improperly used while so out of repair by the foreman, under whom the plaintiff worked, instead of being set aside until repaired, then the plaintiff is not entitled to recover, provided the jury shall find that said foreman was a person of competent skill and experience in the station he occupied, and of good habits and character.

4th. That if the jury shall find from the evidence the facts in regard to the employment, and also those in regard to the happening of an accident to the plaintiff, stated hypothetically in the flrst prayer, and shall further find from the evidence that the said accident happened in consequence of the imperfect adjustment and fastening in its place by the co-employees (of the plaintiffs) or any of them, of a block which prevented the car already referred to from upsetting, then the plaintiff is not entitled to recover, provided the jury shall find from the evidence that the co-employees of the plaintiff were persons of competent skill and experience in their respective stations, and of general good habits and character.

5th. If the jury shall believe from the evidence the facts in regard to the employment of, and accident to the plaintiff, stated hypothetically in first prayer, and shall further find that the said accident happened in consequence of the car on which the plaintiff was riding at the time being out of repair, and being improperly used while so out of repair by the engineer in charge of the train, (if the jury shall believe from the evidence that it was the duty of the engineer to determine when a car was not fit for use,) instead of being set aside and repaired, then the plaintiff is not entitled to recover, provided the jury shall also find that said engineer was a person of competent skill and experience in the station he occupied, and of general good habits and character."

The Court below (MARTIN, J.) rejected the prayers of the plaintiff, and granted those offered by the defendant, whereupon the plaintiff appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J. W. Meade Addison, for the appellant, argued:

1st. That a railroad company is responsible to its employees for injuries caused by the negligence of a superintendent, or by the use of defective or improper machinery. Randleson vs Murray, 8 Adol & Ellis, 109, (35 Eng. C. L. Rep., 342.) McGatrick vs. Wason, 4 Ohio St. Rep., 566, 575. C. C. & C. R. R. Co. vs. Keary, 3 Ohio St. Rep., 201. Gillimuster vs. Madison & Ind. R. R. Co., ...