State, for Use of Chenoweth v. Baltimore Contracting Co., Inc.

• Decision Date: 06 June 1939
• Docket Number: 51.
• Parties: STATE, for Use of CHENOWETH et al., v. BALTIMORE CONTRACTING CO., Inc.
• Court: Maryland Court of Appeals

6 A.2d 625

177 Md. 1

STATE, for Use of CHENOWETH et al., v. BALTIMORE CONTRACTING CO., Inc.

No. 51.

Court of Appeals of Maryland

June 6, 1939

Appeal from Baltimore City Court, Edwin T. Dickerson, Judge.

Action by the State of Maryland, for the use of Margaret E Chenoweth, surviving widow of Oliver D. Chenoweth, deceased and others, against the Baltimore Contracting Company Incorporated, to recover compensation for deceased's death as alleged result of defendant's negligence in suddenly moving a railroad coal car, on which deceased was working, without warning him. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Leonard Weinberg and Everett L. Buckmaster, both of Baltimore (Weinberg, Sweeten & Green and George H. Dowell, all of Baltimore, on the brief), for appellants.

Rignal W. Baldwin, Jr., of Baltimore (William A. Fisher, Jr., and Semmes, Bowen & Semmes, all of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

OFFUTT Judge.

The Pennsylvania Railroad Company leases from the Northern Railway Company a railroad coal yard at the foot of Clinton Street in Baltimore City which it uses for the transfer of coal from its cars to ships tied up at a pier adjacent to the yard. The yard, known as No. 2, is equipped with railroad tracks, switches, a tipple, an elevated railway over which small hopper cars carry coal from the tipple to the ships, and other equipment designed to facilitate the transfer.

The whole yard is divided into a 'Gravity Yard' and an 'Empty Yard'. The tracks run generally east and west. Loaded cars enter the yard from the west and are pushed into the Gravity Yard by a locomotive, and brought to a stop on a grade sloping west. Then they are released one by one and permitted to run by gravity west pas the tipple where they are switched on to a track running to the tipple, and there engage a device known as a 'Dolly' which pulls them east upon the tipple. There by certain clamps the cars are seized, overturned, and emptied into the hopper cars, which carry the coal west again to the loading ship. After the freight cars are unloaded they are allowed to run by gravity eastward into the 'Empty Yard', where they stand until a sufficient number accumulate to require their removal from the yard. The tipple is an elevated structure higher than the surface of the yard and also higher than the elevated railway, so that all cars leaving it run east or west by gravity.

There is one track running east from the tipple to the 'Empty Yard' which at a point known as the 'Clearing point' branches off into other tracks in that yard.

To avoid blocking the 'Empty Yard' it is necessary to take empty cars beyond that point. In moving the empty cars to the 'Empty Yard', one car will be permitted to drift easterly down a grade on the track leading to the Empty Yard to some point west of the 'clearing point' and held there by a mechanical brake, and as other cars are emptied they will be run behind the first car until the operative decides that the 'draft' is large enough to be run into the 'Empty Yard'. The whole process of transferring the coal is done, not by the railroad company, but by the Baltimore Contracting Company, Inc., and for that purpose the entire yard is under its control and supervision. But to insure the safe and adequate operation of its track, cars and equipment, the railroad company at all times employs its own servants and agents, and charges them with the duty of seeing that its cars and equipment are in safe and serviceable condition. On September 21, 1937, it employed for that purpose two inspectors, Oliver D. Chenoweth and John E. Thompson, both of whom had been in the same employment there for many years. Their duties required them to inspect the cars, to make minor repairs, to discover defects and the absence of essential parts of the braking mechanism and other equipment of the cars, and their work naturally required them to be at times, in, on, under and between the cars.

On the morning of that day the body of Chenoweth was found crushed under the trucks of a standing car in the 'Empty Yard'. There were no eyewitnesses of the accident, but assuming that the position of his body permitted the inference that his death was caused by the negligence of the Baltimore Contracting Company Inc., the surviving widow and children of Chenoweth brought this action against that corporation to recover compensation under the provisions of Code, Art. 67.

At the conclusion of the plaintiff's case the court directed a verdict for the defendant, and from the judgment on that verdict this appeal was taken.

The record submits seventy exceptions of which one relates to the granting of the defendant's demurrer prayers, and the others to rulings on the admissibility of evidence.

The nature of the case requires this court to value all the evidence to determine whether it is legally sufficient to support an inference that the accident which resulted in the death of Oliver D. Chenoweth was caused by the defendant's negligence.

In that inquiry as of course the truth of any and all evidence and all proper and legitimate inferences deducible therefrom tending to support plaintiffs' claim is conceded.

That the purpose and significance of the evidence may be more readily understood, the conflicting theories of the parties as to their respective rights and laibilities will first be stated.

The appellant's contention is, that the position in which the decedent's body was found, permits the inference that the accident which caused his death resulted from some sudden, violent and unexpected movement of the train of cars under which he was found, and on which he was at the time employed in the performance of his duties as a car inspector, that there was no warning of the movement, and that the decedent was under no duty to anticipate it, but that the defendant knowing that the decedent might be at work on one of the cars of the train was under a duty (a) to so operate the cars as to avoid endangering him, or (b) if the normal operation of the cars necessarily created a danger, to warn him thereof, and that his death was caused by a breach of that duty.

The appellee contends (1) that no inference of negligence can be drawn from the mere fact that the decedent was killed by a car under its control, (2) that there is no legally sufficient evidence of any unusual or negligent operation of the car which caused the death, but that on the contrary the uncontradicted evidence shows that it was operated in the normal and accustomed manner with which the decedent had long been familiar, (3) that in the absence of certain protective warnings and signs which the decedent for his own protection was required by the rules of the railroad company and the custom of the defendant to give, it was under no duty to anticipate his possible presence on the train, and (4) was not therefore under any duty to warn him of a usual and customary movement which was an ordinary incident of the work but which might endanger him if in fact he was on the train.

The evidence in the case is consistent with the following statement of fact:

In the course of transferring the coal from the cars to a ship, the loaded cars are brought into the Gravity Yard, and left standing on a grade sloping towards the tipple. They are released one at a time, and permitted to run by gravity beyond and west of the tipple, they are then pulled eastward up a grade to the tipple, unloaded, and then allowed to drift eastward on a track sloping from the tipple down to the Empty Yard. In a given movement, the first empty car is stopped on that slope west of the clearing point and held there by a mechanical brake, until other cars accumulate behind it held in position by the first car, when the train or draft has a sufficient number of cars, a brakeman employed by the defendant releases the brake on the first car and permits the whole train to drift into the Empty Yard, which is level, and to stand there with the brakes released.

If there is not enough room between cars on the track in the Empty Yard and the Clearing point to permit the latest draft to come to a stop without blocking the clearing point the brakeman on the latest draft uses it to bump into the standing train and push it farther along the track. He stands at times at the front of the first car, and at times at the rear accordingly as the brake happens to be at one end or the other, but in neither position would he be able to see persons standing beside cars on the track ahead of him or between them.

As stated above, the track running east from the tipple to the Empty Yard branches at the Clearing point into several tracks. The south track is called Track No. 5, and near and north of it is another track called Track No. 4. It was Chenoweth's duty to inspect the cars while they were loaded and standing in the Gravity Yard and also after they had been unloaded and standing in the Empty Yard. On the morning of September 21st Track No. 5 was full, and there were four cars on Track No. 4, about eight car lengths from the Clearing point. Chenoweth and Thompson having some work to do on those cars were proceeding together towards the Empty Yard, when they separated. Chenoweth left Thompson to put a key in a brake of one of those cars, and Thompson went to the machine shop for a drink of water. He saw nothing more of Chenoweth until his body was found about thirty minutes later. After he left two drafts were added to the four standing cars, first one of two cars, and then one of seven. There was not space for the seven cars between the standing cars and the clearing point, and it was necessary for the brakeman...