McCalls Ferry Power Co. v. Price
| Decision Date | 19 May 1908 |
| Citation | 69 A. 832,108 Md. 96 |
| Parties | McCALLS FERRY POWER CO. v. PRICE. |
| Court | Maryland Court of Appeals |
On Rehearing, May 20, 1908.
Appeal from Circuit Court, Talbot County; James A. Pearce, Austin L Crothers, and Wm. H. Adkins, Judges.
Action for personal injuries by Robert F. Price against the McCalls Ferry Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Carroll T. Bond and L. Marshall Haines, for appellant.
J. H Covington and Omar D. Crothers, for appellee.
The defendant (appellant) was engaged during the summer of 1906 in the erection of a dam across the Susquehanna river, at McCall's Ferry, in Pennsylvania, and in order to secure the sand needed it decided to get it from the Chesapeake Bay and to convey it in scows as far as possible up the river and then by cars to McCall's Ferry. This plan necessitated the devising of some means of transferring the sand from the scows to the cars, and accordingly the defendant sent its superintendent, John B. Coates, to Port Deposit to erect the necessary plant for that purpose. The contrivance finally adopted and erected under the direction and supervision of Superintendent Coates at a place called the "lower wharf" in Port Deposit consisted of two tall poles called "gin poles," one erected near the railroad track, and the other, not so tall, on a crib out in deep water. Between these poles was stretched a cable or "runway," and on this cable was placed a metal block, with various wheels inside of it, to serve as a carriage running along the cable, to which carriage was suspended by chains a "clam shell" bucket similar to that used on a mud dredge. From one side of the carriage and attached thereto a cable ran to the engine, and from the other side a cable ran to the outer gin pole, and to it was attached what was called a "counter weight." The engine was located on a tunnel or frame structure 16 feet high, built over the railroad. The cable running from the carriage to the engine was attached to the drum of the engine, and by means of this cable the engine pulled the carriage, to which the bucket was attached, along the runway to a point above the tunnel where the sand was dropped out of the bucket into the car, and when the pressure of the engine was relaxed the counter weight drew the carriage out towards the outer gin pole. Running from the engine to the carriage, and through it to the bucket, were other cables by which the bucket could be lowered or raised and opened or closed. The plan was by means of the engine and this contrivance to open the bucket, lower it into the scow loaded with sand, then close the bucket, lift it out of the scow, pull it by the carriage cable to a point above the car, open the bucket, drop the sand in the car, and then by relaxing the pressure of the engine the counter weight would draw the carriage back along the runway out towards the scow again. In the erection of this plant, which was begun about the 15th of July, 1906, the superintendent employed a foreman, J. N. Acker, and a number of workmen, including the plaintiff (appellee), Robert F. Price. There was also employed on this work an engineer, Nathan H. Davis, to run the engine. On the 23d of August, 1906, as the plant was nearing completion, and after the bucket had been suspended from the carriage, and the cables running from the carriage to the engine and from the carriage to the counter weight, and the several cables running from the engine through the carriage to the bucket, had been attached, it was found that the chains from the bucket to the carriage were either twisted or too long, and the plaintiff and Jesse Price were ordered by the foreman Acker to get on the bucket, which was then lying on the railroad built over one of the cribs, and take the twist out or shorten the chain. In obedience to this order, they got on the bucket, when the bucket was suddenly lifted or moved, and fell into one of the cribs and rolled on the plaintiff, seriously injuring him, and to recover for such injury this suit was brought. The declaration, after alleging that the defendant owned and operated the plant mentioned and employed the appellee on said works, charges that the defendant "knowingly and negligently employed, or knowingly or negligently kept in its employ, a careless, negligent engineer or other servants, whose negligence was unknown to the plaintiff, to operate or run said engine or engines or other machinery connected with said works; that on the 23d day of August aforesaid the plaintiff was ordered by the foreman in charge of said works, whose orders he was bound to obey, to get upon a bucket which was attached to a cable by means of a chain and shorten the chain attaching the bucket to the cable aforesaid, and in pursuance of said order he got upon the bucket and was proceeding to execute said order, using due care on his part, when the engineer negligently and recklessly started said engine and raised the bucket with the plaintiff on it some distance above the ground or wharf, and then the said engineer, without any warning to the plaintiff, recklessly and almost instantly started said engine again and let the bucket fall so suddenly to the ground that the plaintiff was thrown off and crushed beneath it in such manner that he was bruised, wounded, and severely and permanently injured," etc. The defendant pleaded non cul., and the trial of the case resulted in a verdict for the plaintiff for $12,500.
In the course of the trial the defendant reserved 16 exceptions, 15 to the rulings of the court on the admissibility of evidence and motions to strike out the evidence, and the sixteenth to the action of the court on the prayers and the special exceptions of the defendant to the plaintiff's prayers. As the sixth and seventh prayers of the defendant challenge the right of the plaintiff to recover under the pleadings and evidence, and as the questions raised by the rulings of the court on the prayers may be determined without considering the evidence excepted to, the sixteenth exception will be disposed of first. There can be no doubt on the facts of the case that the plaintiff and the engineer Davis were fellow servants, and we do not understand that to be questioned. That being their relation, the action here is one by a servant against the master to recover for injuries alleged to have resulted from the negligence or carelessness of a fellow servant. In such a case the master is not liable for the negligence of a fellow servant, unless it is shown that he was negligent either in the employment or in retaining in his service the servant whose misconduct caused the injury. To entitle the plaintiff to recover in this case it was necessary therefore for him to show, first, that his injuries resulted from the negligence or carelessness of the engineer Davis; secondly, that Davis was not a competent engineer; and, thirdly, either that the defendant had not used proper care in selecting Davis as the engineer, or subsequent to his employment and prior to the accident knew, or by the exercise of reasonable care could have known, of his incompetency, and retained him in its service. O'Connell v. B. & O. R. R. Co., 20 Md. 212, 83 Am. Dec. 549; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 A. 338; Baltimore v. War, 77 Md. 593, 27 A. 85; Maryland Steel Co. v. Marney, 88 Md. 482, 42 A. 60, 42 L. R. A. 842, 71 Am. St. Rep. 441; Maryland Clay Co. v. Goodnow, 95 Md. 330, 51 A. 292, 53 A. 427.
1. The plaintiff testified that he and Jesse Price were ordered by Mr. Acker, the foreman, to get on the bucket, which was lying on the railroad on one of the cribs, and shorten the chain and that by the time they got on the bucket the engineer started the engine and raised the bucket about 8 or 10 feet in the air, and then let it fall with a crash, and it rolled over on him and crushed his side; that Davis was the engineer; that there was no necessity for starting the engine at that time or for raising the bucket; and that the whole machinery was operated and controlled by the engine. Jesse Price testified that he and the plaintiff were ordered by foreman Acker to get on the bucket and shorten the chain, and that after they got on the bucket the engineer suddenly started his engine and lifted the bucket 8 or 10 feet in the air, and then it fell into a crib, and struck or rolled on the plaintiff; that he saw Davis at the time of the accident, and saw him start the engine; that the engine was on the tunnel; and that the engineer was in a position to see them on the bucket, and that the movements of the bucket were controlled by the engine. Frank Nicholl testified that they found that the chain by which the bucket was attached to the carriage was too long to permit the bucket to go over the side of the boat, and that the plaintiff and Jesse Price were ordered to get on the bucket and shorten the chain; that they jumped up to shorten the chain, and while shortening the chain "all of a sudden the bucket took a quick rise and dropped on this little railroad and broke a tie and plank"; that the bucket was lying still when they got on it; that the bucket weighed about 2,000 pounds, and that when it fell it rolled on the plaintiff and injured him; that Davis was at the engine at the time; that when the plaintiff and Jesse Price got on the bucket witness looked up to see if Davis was looking, and saw that Davis was at the engine and had charge of it; that no one signaled Davis to start the engine; and that there was no warning given to the plaintiff and Jesse Price that the engine was going to be started. This evidence, which was corroborated by the testimony of other witnesses, describing how the plant worked and how the movements of the bucket were controlled by the engine and by the...
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