F.S. Royster Guano Co. v. State
| Decision Date | 31 January 1917 |
| Docket Number | 64. |
| Citation | 100 A. 104,130 Md. 170 |
| Parties | F. S. ROYSTER GUANO CO. v. STATE, to Use of McDONALD. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; James M. Ambler Judge.
"To be officially reported."
Action by the State, to the Use of Mary E. McDonald, widow of John McDonald, deceased, against the F. S. Royster Guano Company. Judgment for plaintiff, and defendant appeals. Reversed without new trial.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.
Jesse Slingluff and William L. Marbury, both of Baltimore, for appellant.
James J. Lindsay, of Baltimore (A. Herman Siskind and Chas. P Coady, both of Baltimore, on the brief), for appellee.
The appeal in this case is from a judgment recovered in the name of the state for the use of Mary E. McDonald against the appellant company, for the death of her husband, John McDonald, caused, as it is alleged, by the negligence of the defendant company.
The declaration alleges in substance that John McDonald, employed as a day laborer by the defendant company in its fertilizer plant in Anne Arundel county, was, on or about the 7th day of August, 1914, directed by one of its duly appointed agents to operate an electrical hoist, which was alleged to be dangerous to persons who had no previous experience in its operation, and "that the defendant was negligent and did not warn the said John McDonald, who did not understand the dangers attending the working around and about said machine; that the said John McDonald, exercising due and ordinary care and while operating said hoist * * * received an electrical shock in the operation of said hoist which burned the said John McDonald across his breast and resulted in his almost instant death," etc.
There is but one exception found in the record and that is to the rulings of the court upon the prayers. The plaintiff offered but one prayer, and to this the defendant specially expected, because of the alleged want of legally sufficient evidence "to enable the jury to find that the death of John McDonald was caused by any negligence on the part of the defendant as alleged in the declaration." The exception was overruled, and the prayer was granted.
The defendant company offered six prayers, the fifth and sixth were refused, and it was from the rulings of the court in granting the plaintiff's prayer, and the overruling of the defendant's special exception thereto, and to the refusal of the court to grant its said two prayers, that the defendant excepted. The defendant by its sixth prayer asked the court to instruct the jury that there was no legally sufficient evidence in the case "to show that the death of McDonald was caused by failure of defendant in the performance of any duty which it owed him as alleged in the declaration."
The evidence shows that on the 7th day of August, 1914, John McDonald was directed by one of the defendant's foremen, in charge of a gang of men, including McDonald, to relieve temporarily the regular hoister who was at that time operating the electric hoist. This electrical appliance, used for hoisting cargoes from vessels, scows, etc., to the wharf or plant of the defendant company was located in a tower said to be from 40 to 60 feet above the wharf. Several witnesses attempted to describe it and to state the manner in which it was operated, but it is difficult, from their testimony, to obtain any clear or definite impression of it, or just how it is operated. It is located in a room about 15 feet square, and in this room are four windows; one of these is used to enable the hoister to see the tub while it is being lowered and hoisted in unloading the boat at defendant's wharf. Upon the side wall of this room about 2 1/2 feet from the window referred to and to the "left and behind" the operator, when operating the machine, is a switchboard. The switch, which is upon the switchboard, is described as having a wooden handle some 5 inches in length used in turning on and off the current. This handle is attached to a wooden crosspiece some 2 or 3 inches thick, which is fastened to the metal of the switch, and, as the witnesses state, the metal parts of the switch become electrified when the current is on. The witnesses also speak of a controller and foot brake, the former as we understand it is used in hoisting the tub while the latter is used in lowering it. The empty tub descends to the boat by its own weight, and the foot brake is to regulate its speed in descending.
This electric machine or hoist was similar to the ones used by the Baugh Chemical Company and others, and it nowhere appears in the evidence that in its location, construction, or operation it was any more dangerous than those ordinarily used for such purposes, or that it exposed the operator to risks beyond those which are incidental to its efficient use. The danger as pointed out by the witnesses for the plaintiff was in the operator coming in contact with the metal parts of the switch; but so long as he used the handle and avoided contact with those parts there was no danger.
The evidence discloses that John McDonald some weeks before the accident, and while working at Baugh's factory, where he had been employed for a number of years, telephoned to James R. Smith, assistant superintendent of the defendant company, asking him if he could get him employment with his company, and upon being asked what he was doing at Baugh's, he said he was "running a hoist and running an electric car." His application was by Smith communicated to A. V. Decker, the defendant's superintendent, who subsequently employed him. Mr. Decker, when asked to state the circumstances under which McDonald was employed, said:
His employment commenced "next to the last week in July," and continued to the time of his death, two or three weeks thereafter. While with the company he was, as stated by Mr. Decker, at work cleaning up around the factory and bagging bone, etc., and on two occasions prior to the day of his death he temporarily relieved the regular hoister in the operation of the hoist. That he was so employed on those occasions as hoister was impressed upon the mind of Decker...
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