Foreman Co. v. Williams
| Decision Date | 12 November 1936 |
| Docket Number | No. 17.,17. |
| Citation | 188 A. 25 |
| Parties | FOREMAN CO. et al. v. WILLIAMS, to Use of MAYOR and CITY COUNCIL of BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Samuel K. Dennis, Judge.
Action by Edward Williams on his own behalf, and to the Use of the Mayor and City Council of Baltimore, against the Foreman Company and another. From an adverse judgment, the defendants appeal.
Affirmed.
Argued before BOND, C. J., and URNER, OFFUTT, PARKE, MITCHELL, and SHEHAN, JJ.
Daniel E. Klein and Paul M. Higinbotham, both of Baltimore, for appellants.
H. Beale Rollins and F. Gray Goudy, both of Baltimore, for appellee.
Edward Williams is a servant of the Mayor and City Council of Baltimore, a municipal corporation. He sustained an injury for which he was awarded compensation. The municipality brought an action at law against the Foreman Company, a corporation, and its servant Michael Piccarella, for their negligence in causing the injury. The suit is in the name of the servant, and, under the provisions of the Workmen's Compensation Law, is for the reimbursement of the master and then for the use of the servant. Code, art. 101, § 58.
The municipality owned and operated an incinerator for the disposal of garbage which was gathered in trucks and hauled by the Foreman Company to the incinerator where it was emptied and burned. The plant was on the south side of the Philadelphia road. The building in which the incinerator had been erected stood a short distance to the south of the road. The rectangle in front of the building is flat and open and is bounded on the north by the Philadelphia road and on the south and east and west by a concrete way, which is used by the trucks in the delivery of garbage and other refuse. The section of the way to the west extends south, along the west end of the building, a distance of 75 or 100 feet, to a small building at the terminus of the way. The last-named structure is called a "tin press" and is used for the treatment of metal material which cannot be disposed of by the incinerator.
On the east of the eastern section of the concrete way are scales and a small building where the loaded trucks, which uniformly enter the premises from the Philadelphia road by the eastern section of the way, are first weighed and then they proceed to the front of the building, which has three large metal, curtain doors. In the west side of the building and near its front is a similar wide metal door. If the loaded truck is carrying light metal pieces, it is driven to the front of the building and turned so as to be in position to be backed through one of the three front doors. After the doorway is opened, the truck is backed into the building until its end is at the edge of a pit into which the load, after the light metal pieces have been put on the floor for removal, is dumped.
After the truck is emptied, it passes out to the Philadelphia road by the western way. The pieces of metal are carried, dragged, or rolled away by workmen of the municipality and put into the tin press at the southern end of the western way. Should the truck be loaded with heavy or bulky metal material, the truck enters the eastern way and is driven by the front of the building and northward a short distance on the western way sufficient for the truck to be stopped and then, because the way is a cul de sac and there is not room to turn, to be slowly backed south on the western way until the tin press is reached where the metal stuff is to be removed.
The municipality had its complement of servants to operate the plant, and they, as well as the servants of the Foreman Company who operated the trucks, were wholly familiar with the premises and the manner in which the trucks were to be managed and the work to be done.
The only error assigned is the refusal to take the case from the jury. The question of primary negligence on the part of servants of the Foreman Company in the infliction of the injury upon the plaintiff is conceded, and that of contributory negligence by the plaintiff is submitted to the jury for its finding. 5-6 Huddy on Automobile Law, § 23. The sole question on this appeal is whether there was error in refusing to withdraw the case from the jury on the theory that as a matter of law the evidence established contributory negligence. There was conflict of testimony with reference to some of the facts which entered into this problem. The jury, however, refused to believe the testimony on the part of the defendant that the side door on the west was open and that through it the defendant, without stopping or looking, dragged the tank, thrust himself suddenly before the truck and was injured before his peril could have been discovered by the defendant's servants by the use of reasonable care and prudence. But there was other credible testimony, which, if believed, was in conflict with the defendant's conception of what happened. The question is whether this testimony when given its most favorable construction for the plaintiff is sufficient to bar a recovery by the plaintiff on the ground of his contributory negligence. If so believed by the jury, there was testimony tending to show these facts.
The accident happened shortly after noon on a bright day in September. The trucks of the defendant had been backed into the building; some metal pieces and two hot water boilers had been laid to one side on the cement floor; and the trucks had been then emptied of their contents. The side door in the front of the west side wall was closed, and the plaintiff and a fellow worker began to remove the metal pieces. Each dragged a boiler through the middle front door to the concrete way on the west. When the boilers were got clear of the west wall, the two men started to roll the boilers down the way to the building at the end of west way. His fellow worker kept well ahead of the plaintiff and had no mishap. The plaintiff had a piece of eight-inch galvanized pipe under his left arm as he rolled the empty 30-gallon hot water tank by kicking it along. At the time he came out of the building he looked around and no truck was in sight. He testified that one had to notice whether there was a truck behind when a tank would be started to roll down the road to the tin press; and that, at that point, he did look back, and that he saw no truck. He then started to roll the tank by standing back of it in the concrete way and kicking it along. Instead of keeping in the way, the tank rolled to the west side of the road and caught in the dirt. The plaintiff got the tank straightened out, and began again to kick it along and the tank was kicked and rolled about 15 or 20 feet to the plaintiff's left against a pile of steel right-angle plates or shields along the west side of the main building and there stuck about 30 feet from the front line of the building. He worked the tank clear, and while trying to roll it again by kicking, he, without seeing or hearing the truck, was struck in the back and thrown to the ground with his hip under the left rear wheel.
The truck was 20 feet in length and its body was 12 feet high, which was 4 feet higher than the cab, and the truck was not equipped with a mirror to reflect the scene to the rear. It was impossible for the driver to see anything to the right or behind the truck, and it was the custom for his helper on the truck to watch and give warning to any one in the rear...
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