Maryland Clay Co. v. Goodnow

• Decision Date: 30 January 1902
• Citation: 51 A. 292,95 Md. 330
• Parties: MARYLAND CLAY CO. OF BALTIMORE CITY v. GOODNOW.
• Court: Maryland Court of Appeals

51 A. 292

95 Md. 330

MARYLAND CLAY CO. OF BALTIMORE CITY v. GOODNOW.

Court of Appeals of Maryland

January 30, 1902

Appeal from circuit court, Harford county; James D. Waters, Judge.

"To be officially reported."

Action by Edward Goodnow against the Maryland Clay Company of Baltimore City. Judgment for plaintiff, and defendant appeals. Reversed.

Pearce J., dissenting.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.

Rich. S. Culbreth, John S. Wirt, and Thos. H. Robinson, for appellant.

Albert Constable and Jas. J. Archer, for appellee.

BRISCOE J.

This suit was brought by the appellee against the appellant to recover damages for an injury alleged to have been sustained by him through the negligence of the defendant. The appellant is a corporation duly incorporated under the laws of the state, and conducts a kaolin plant near the town of Northeast, in Cecil county. At the time of the accident it was engaged in the business of refining clay, and operated a railroad and cars for the purpose of carrying clay from the pits where it was dug to the works where it was refined. The plaintiff was employed by the company as a laborer, for the purpose of unloading the clay from its cars, and while so employed was knocked off the car where he was at work, and was permanently injured by being run over by a wheel of one of the defendant's cars. The declaration contains three counts. The first avers that the defendant had constructed its railroad in a defective and improper manner, and that by its negligence the end of the track upon the trestle of the road was unguarded by a bumper or any device whatever to prevent the cars upon which it was necessary for the plaintiff to work from being thrown over the end of the trestle. The second count avers that by the negligence of the defendant the cars used by it upon its railroad were without brakes, or other contrivances of that nature, which the defendant knew, but of which the plaintiff was ignorant. The third count alleges that the accident was due to the combined causes alleged in the first and second counts. The defendant pleaded, "Not guilty," and, the judgment being in favor of the plaintiff, the defendant has appealed.

It will be thus seen that the contention of the appellee in this case is: First, that the accident was due to the absence of a bumper at the end of the trestle; and, second, to the failure of the defendant to have brakes upon the cars composing the dirt trains.

There are a number of questions raised by the rulings of the court on the prayers presented at the trial below, but we only deem it necessary for the purposes of this case to consider the action of the court in rejecting the defendant's first prayer; and that reads, "There is no evidence of any such negligence on the part of the defendant in the discharge of its legal obligations to the plaintiff as entitles him to recover in this action." This prayer, which was rejected by the court below, raised the question of the legal sufficiency of the evidence, and of the right of the plaintiff to recover under the evidence in the case.

It appears from the evidence that the plaintiff had been employed as a laborer by the defendant company from September, 1896, to April 21, 1898, but during the construction of the railroad trestle had been employed to work around the company's sheds, together with other workmen, in loading and unloading cars at its kaolin works. It further appears: That the defendant operated a railroad and cars for the purpose of carrying the clay from the clay pits, which were located in the northern part of the company's property, to the sheds or works in the southern part, where the clay was dumped from the cars to be refined. That, in transporting the clay from the pits to the works, it was necessary to cross the tracks of the Philadelphia Wilmington & Baltimore Railroad, which passed east and west through the defendant's property, and that the defendant's works were located between the Northeast river and the tracks of the last-mentioned railroad. A bridge had been built over the railroad tracks, and a trestle from the pit, above the railroad to the bridge, and from the bridge to the sheds below the railroad. The clay was hauled from the pits to the works on the river, "in cars drawn by an engine over the tracks, which crossed the railroad on a bridge about 30 feet high, and then to the works, where the cars were unloaded. That the tracks below the bridge are located on a trestle which is about 13 feet high, and terminating about 427 feet below the bridge,--there being an incline from the bridge to the river of about 300 feet, the grade being about 6 feet,--but that the track was level for the rest of the distance to the end of the trestle. That across the tracks at the end of the trestle there was at the time of the accident an ordinary railroad cross-tie, fastened by ropes, to keep the cars from being thrown over the end of the trestle; the cross-tie being sixty-eight inches." The plaintiff testified that on the evening of the 20th of April "he went to the pit and helped to load four cars, and went from the pit home, leaving the cars standing there; that on the morning of the 21st he returned to the works, and found four cars standing at the same place where he had before unloaded them, and he and the other workmen (two others) climbed up the trestle and began to unload; that these cars were standing on the track, the last car reaching to the end of the trestle; that he and the other workmen had unloaded two of the cars, and were unloading the third, his back being towards the bridge, when suddenly a fellow workman, who was facing the bridge, threw his shovel down and leaped from the car; that he turned and saw the train of five cars descending the track from toward the bridge, and within six or eight feet from the train in which he was working; that he turned in an effort to escape, but at that instant the leading car of the descending train struck the train in which he was working, and he was thrown head foremost from his car, falling with arms across the iron rail of the track; that one of the cars of the stationary train ran over his arm, crushing it so that it had to be amputated up to the shoulder; that he was at the time unloading the third car from the end of the trestle, so that there was a car between him and the descending car train." The evidence further shows: That the dirt train, which was in charge of workmen employed by the defendant company, was hauling dirt and dumping it into the trestle south of the bridge. This train was composed of an engine and five cars. Only two of the cars had brakes, and one of these was broken. That small blocks of wood, about two inches thick, were used by the trainmen to block the wheels, in the place of brakes. As soon as the engine was detached and the first dirt car was dumped, the jar started the five cars down the incline (the brake and the blocks not being sufficient to hold the cars), and they struck the stationary train where the plaintiff was at work, and injured him. At the time of the accident there were four men with the train, named Parrott, Lynch, Page, and an Italian. A workman named Moore had charge of the dirt train, and it was his duty to keep the machinery in repair. The dirt train was made up according to Moore's orders, and he directed the particular cars to be used, and told the workmen to use short blocks of wood, six or eight inches long, to hold the cars on the incline while the dirt was being dumped from the cars. That the company had 20 cars, and 5 of these had brakes.

Now, we do not consider it necessary to review the testimony at length, nor to discuss it in detail, because we think it clearly appears from what has been stated that the immediate and direct cause of the accident, was the absence of brakes on the dirt train operated by the defendant. There can be no difficulty, in this state, as to the rule of law applicable to a case like this, where a servant sues his master for injuries resulting from the negligence of a fellow servant. All of the cases hold that one of the risks which the servant takes upon himself when he enters the service of a master is the negligence of fellow servants. The law upon this subject has been fully considered by repeated decisions of this court. Wonder v. Railroad Co., 32 Md. 411, 3 Am.Rep 143; State v. Malster, 57 Md. 287; Yates v. Iron Co., 69 Md. 370, 16 A. 280; Mayor, etc., v. War, 77 Md. 593, 27 A. 85; O'Connell v. Railroad Co., 20 Md. 212, 83 Am.Dec. 549. We have examined the testimony in this case with great care, and we can find no proof whatever of any such negligence on the part of the master as would make it liable in this action. The cause of the injury, it seems to us, was not due to any negligence on the part of the master, but it was solely caused by the use of a car, by a fellow servant, with a defective brake, instead of using one with a good brake. There were three other cars with safe brakes, which had been provided by the company, and which could have been used on the day of the accident. It is clear, we think, that the master cannot be held liable in this case for the carelessness and negligence of the fellow servant in using the car with a defective brake, which caused the injury. In Yates v. Iron Co., 69 Md. 385, 16 A. 286, it is distinctly said: "If the servants are in the employment of the same master, engaged in the same common work, and performing duties and services pertaining to the same business, the master cannot be held liable to the one servant for injuries caused by the negligent or unskillful conduct of another, unless he has been negligent in employing or retaining in his service such negligent...