Md. Steel Co. of Sparrows Point v. Marney

• Decision Date: 20 December 1898
• Citation: 88 Md. 482,42 A. 60
• Parties: MARYLAND STEEL CO. OF SPARROWS POINT v. MARNEY.
• Court: Maryland Court of Appeals

42 A. 60

88 Md. 482

MARYLAND STEEL CO. OF SPARROWS POINT

v. MARNEY.¹

Court of Appeals of Maryland.

Dec. 20, 1898.

Appeal from court of common pleas; Henry D. Harlan, Judge.

Action by John Marney against the Maryland Steel Company of Sparrows Point. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The prayers and defendant's exceptions thereto were as follows:

Plaintiff's second prayer: "The plaintiff prays the court to instruct the jury that if they find from the evidence in this case that on the 16th day of September, 1895, the plaintiff, John Marney, was, and for some months prior thereto had been, in the employ of the Maryland Steel Company, the defendant, as cupola tender in one of its foundries at Sparrows Point; that the said defendant owned and operated a large establishment and plant at that place for the manufacture of iron and steel, divided into various departments, such as the marine department, the machine shop, and foundry, in which various departments were employed a large number of men; that in the foundry, in which plaintiff was employed, there were three large cupolas in which the iron was melted; that in each of said cupolas there were tap holes with spouts at a height of about five feet from the floor of the foundry, from which tap holes and spouts the melted iron was drawn from the cupola when needed; that it was necessary to have various employés to attend to said cupolas, whose duty it was, when occasion required, to draw off said melted iron through said tap holes and spouts, and, when a sufcient amount had been drawn off, to stop the flow of said iron through said tap holes and spouts by putting in a stopper of clay, as described by the plaintiff in his testimony; and if they find that the escape of said melted iron through said tap holes and spouts could be readily stopped entirely, provided the said tap holes were properly stopped, and that the proper stoppage of said tap holes so as to prevent any leakage was done by a competent cupola tapper; that on the day above referred to (that is to say, the 16th day of September, 1895) one of these cupolas was being attended by a man named Felix, one of the defendant's employés; that said Felix did not properly perform the work of stopping the flow of said melted iron through said tap hole, but did it in such a negligent and improper manner as to cause the same to leak, and to give rise to the imminent danger that the molten metal in said cupola would press out through the said spout, and fly over a number of men who were working in the neighborhood of said cupola At the time; and if they find that the said condition of the tap hole was suddenly called to the attention of the plaintiff by an exclamation of one of his fellow workmen, and that the plaintiff, being suddenly called upon, seeing the condition of the said tap hole, and fearing that, if it were not properly secured, the metal would press forth and injure the men in the neighborhood as aforesaid, seized a bot stick usually employed for that purpose, put a quantity of clay upon the end of it in the usual manner, and hastened to the spout for the purpose of stopping said tap hole; that, just as he was in the act of pressing said clay into the tap hole for that purpose, he saw that the melted iron was beginning to flow over the top of the clay, and, fearing an explosion from the contact of the molten metal with the clay on his not stick, tried to shut his eyes in time but did not succeed, and that the said metal, falling upon said clay, exploded and splashed into his eyes, destroying his sight and otherwise injuring him, as testified to by him and by his daughter, Mrs. Gilman; and that if they find that in thus attempting to close said tap hole the plaintiff was employing the methods usually employed for that purpose, and exercising such care as a reasonably prudent man could be expected to exercise under such circumstances; and if they further find that the said Felix had been employed at said foundry for several years prior to said accident; that several months prior thereto he had been employed at the said work of a cupola tender, but had been found to be incompetent, by reason of timidity and nervousness, for said work, and had been twice burned as the result of his incompetency; that this fact had become known to the witness Hines, who was at the time of this accident the superintendent of the said foundry, clothed with the power and charged with the duty of employing and discharging, at his discretion, all the men needed for the work of said foundry, including cupola tenders, and by reason of his said incompetency the said foreman had taken him away from his work of attending the cupolas, and put him at other labor, but that on the day of said accident he put him at the work of attending this cupola again, notwithstanding his knowledge of his unfitness for the same; that in the early part of the afternoon, some hours prior to the accident complained of, the said Felix had again shown his unfitness for said work of stopping said tap holes in said cupola, in the presence of the said foreman, and also of Mr. Sahlin, the superintendent of the Maryland Steel Company at Sparrows Point, who had entire charge of all the various departments of the company there, and the power to employ and discharge the foremen of the various departments, including the foundry; and that Mr. Sahlin, as well as said Hines, thus had knowledge of the said Felix's unfitness for said work, but nevertheless allowed him to continue at the same until the accident complained of in this case occurred; and if they find that the said foreman, Hines, himself had no knowledge of the proper method of attending cupolas, and especially of stopping the tap holes of the same,—then the plaintiff is entitled to recover in this case, and their verdict should be for the plaintiff." Granted. Plaintiff's third prayer: "If the jury find for the plaintiff in this case under the plaintiff's first prayer, in estimating the damages they are entitled to take into consideration the plaintiff's state of health and physical condition prior to the accident, his capacity for doing work and earning wages prior thereto, as compared with his condition and capacity since the accident in consequence thereof; and they may also consider the question as to whether the injuries will be permanent in their effect; and they may also consider the physical and mental anguish which the plaintiff has suffered in the past, or is likely to continue to suffer in the future, and award him such sum as in their judgment will be an adequate compensation for the injuries which he has sustained." Granted.

Defendant's first prayer: "The defendant prays the court to instruct the jury that there is no evidence in the case of any such negligence on the part of the defendant in discharge of its legal obligations to the plaintiff as would entitle him to recover in this action." Refused. Defendant's second prayer: "The jury are instructed that the undisputed evidence in the case shows that the injury was caused by the negligence of the plaintiff himself, and the verdict must be for the defendant." Refused. Defendant's third prayer: "That the plaintiff, by voluntarily and unnecessarily placing himself in the position in which he was when he received the injuries for which he seeks to recover, was guilty of contributory negligence, and the verdict must be for the defendant." Refused. Defendant's fourth prayer: "That there is no evidence that it was necessary or proper for the plaintiff to be in the position in which he could be injured by the molten iron which exploded upon the day he was injured, and that he is not entitled to recover, under the pleadings in this case." Refused. Defendant's fifth prayer: "That even if the jury believe that the plaintiff was injured by reason of negligence or want of skill of the cupola tender, and that defendant was guilty of negligence in appointing said cupola tender, or retaining him in its service, the plaintiff is not entitled to recover, if the jury believe he would not have been injured except for want of ordinary care and prudence on his part." Granted. Defendant's sixth prayer: "The defendant prays the court to instruct the jury that the undisputed evidence in the case shows that the plaintiff had knowledge of the incompetency of the man called Felix Smith in neglecting to close the bot hole of the cupola, and that he undertook to close said bot hole at his own risk, and the verdict must be for the defendant." Refused. Defendant's seventh prayer: "If the jury believe from the evidence that the explosion by which plaintiff was injured was caused by the plaintiff thrusting a wet bot stick into the molten metal, and that he knew it was dangerous to thrust said wet bot stick into the metal, if they so find, then they should give a verdict for the defendant." Granted. Defendant's special exception: "The defendant excepts to the plaintiff's second prayer, upon the ground that there is no evidence to sustain it." Overruled.

Argued before McSHERRY, C. J., and BRISCOE, PAGE, BOYD, and PEARCE, JJ.

J. Alex. Preston and Alex. Preston, for appellant.

William L. Marbury, C. W. Kohlmann, and C. Bohn Slingluff, for appellee.

PEARCE, J. This is an action to recover damages for injuries alleged to have been sustained by the plaintiff, John Marney. through the negligence of the defendant the Maryland Steel Company of Sparrows Point The appellant is a body corporate engaged in the manufacture of iron and steel, and it owns and operates a large establishment and plant for that purpose, located at Sparrows Point, in Baltimore county. On the 10th of September, 1893, the plaintiff was in the service of the defendant company, being employed in the foundry where iron castings were made; his special duties being to charge the furnace or cupola with metal, and to see that a proper supply of molten metal was ready for the...