Martin v. Baltimore & O.R. Co.

• Decision Date: 18 October 1889
• Citation: 41 F. 125
• Parties: MARTIN v. BALTIMORE & O.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

41 F. 125

MARTIN v. BALTIMORE & O.R. CO.

United States Circuit Court, D. West Virginia.

October 18, 1889

Action to recover damages for an injury alleged to have been caused on the 22d of May, 1887, at Bay View station, in Baltimore county, Md., by negligence of defendant's servants. The plaintiff was in the employment of the defendant in its telegraph department at the time of the accident, and had been in that service from the 19th day of November, 1886,and on the day of the accident was in the camp train at Bay View on his way, with the other men in that service, to Chester Pa. The camp cars in which the plaintiff was housed were on a track in the railroad yard, and were run into by a freight train, going into a switch which had been improperly left open. It was the duty of the conductor and brakeman of the train which caused the accident to see that the switch was in proper shape and situation when approaching it, and not to rely upon others to attend to it. The facts showed that the plaintiff, with some of the other persons in the same camp were sitting on the brake-wheel on the platform between the cook car and lodging car of the camp train at the time the collision occurred, and these were the only persons hurt by it, being jammed in between the bumpers of the two cars mentioned. The men in the cars were not hurt in the least degree. At the time the plaintiff went into the service of the defendant he was under age, and, by the written consent and authority of his father, plaintiff was admitted into the company's service, and became a member of the Baltimore &amp Ohio Employes' Relief Association. The train causing the accident was not running more than four miles per hour, and did not hit the camp cars hard enough to damage the one it struck the slightest. The plaintiff himself testified that he was sitting on the platform, as stated, and no persons other than those with him on the platform were injured in the collision. He also testified that he was at the time of the accident in the employment of the company, and on his way to resume work at Chester, in the construction of telegraph lines for the company.

The plaintiff's declaration contains four counts; the first three alleging that he was a passenger, and was being carried by the defendant as such.

The fourth count alleged that he was in the employment of the company in its telegraph department, and, while being transported to the place of work, received the injury by reason of negligence of the employes of the company. Issue was joined on the plea of not guilty, and a special plea, which set up--

'That the plaintiff, on the 19th of November, 1886, was and desired to continue in the service and employment of the Baltimore &amp Ohio Railroad Company, in its telegraph department, and applied to be admitted a member of the Baltimore & Ohio Employes' Relief Association, a corporation organized under the laws of the state of Maryland, and thereby agreed to conform to, and be bound by, the constitution, by-laws, rules, and regulations of said association then in force, and recognized by said association; and also to conform to and be bound by such additional by-laws, rules, regulations, of said association then in force, and recognized by said association; and amendments of the constitution of said association as might thereafter by adopted by its committee of management,-- which application was in writing, and signed by the said J. Wilson Martin, Jr., the plaintiff, in his own proper handwriting; and, amongst other things, the plaintiff agreed that his application, when approved by the secretary of the association, should constitute a contract between himself and the Baltimore & Ohio Railroad Company as a condition of his employment by the company, and as such be the irrevocable power and authority of said company to make the deductions and payments mentioned and agreed upon in said application; and when so approved said application should likewise constitute the assignment in advance to the said relief association of such portion of the plaintiff's wages, which should have precedence over any other assignments by him of his wages, or of any claim upon them on account of liabilities incurred by him; and that the plaintiff further agreed that, in consideration of the contribution of the Baltimore & Ohio Railroad Company to said association, and of the guaranty by said railroad company of the payment of the benefits aforesaid, the said railroad company should not be liable to any claim or suit by reason of any accident happening to him while employed in any manner in the service of said company, whether such accident should be caused by the negligence of said company, its officers, or agents, or otherwise, except as guarantor of the benefits payable to him, or his beneficiary, under the terms of his application and agreement; and that the plaintiff further agreed that said association might require, as a condition precedent to the payment of such benefits, that all acts deemed appropriate or necessary by the secretary of such association, to effectuate the release...