State to Use of Hamelin v. Malster

• Decision Date: 15 November 1881
• Citation: 57 Md. 287
• Parties: STATE OF MARYLAND, use of ISABELLA HAMELIN, and JOHN NICHOLAS HAMELIN and THEODORE HAMELIN, by their next friend, ISABELLA HAMELIN v. WILLIAM T. MALSTER and WILLIAM B. REANEY, trading as MALSTER & REANEY.
• Court: Maryland Court of Appeals

57 Md. 287

STATE OF MARYLAND, use of ISABELLA HAMELIN, and JOHN NICHOLAS HAMELIN and THEODORE HAMELIN, by their next friend, ISABELLA HAMELIN v. WILLIAM T. MALSTER and WILLIAM B. REANEY, trading as MALSTER & REANEY.

Court of Appeals of Maryland

November 15, 1881

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exception.--At the trial, after the testimony summarized in the opinion, had been given, the plaintiff offered the following prayers:

1. That if the jury shall find from the evidence, that Theodore Hamelin, deceased, was related to the equitable plaintiffs as stated in the declaration, and was killed by falling from a great height, while working as a laborer for the defendants, in the construction of a bridge, and that his fall and death directly resulted from, and was caused by, the failure of the said defendants to provide such structures and appliances for securing the safety of persons engaged in the work aforesaid, as would have been provided by ordinarily prudent and careful persons in the circumstances of the said defendants, as disclosed by all the evidence in the cause then their verdict must be for the plaintiff, unless they shall further find that the said Hamelin was guilty of want of ordinary care and regard for his own safety, at the time of his injury, and thereby contributed to produce it.

2. That if the jury shall find from the evidence, that Theodore Hamelin, deceased, was related to the equitable plaintiffs as stated in the declaration, and was killed by falling from a great height, while working as a laborer for the defendants in the construction of a bridge, and that the manner of constructing the said bridge involved unnecessary risk to the persons therein employed, to which risks ordinarily prudent and careful employers would not have exposed their workmen under the circumstances of the defendants, as disclosed by all the evidence in the cause, and that the said manner of construction was known to and approved by the defendants; and that the fall and death of the said Hamelin was directly caused by the risks thereby incurred, then their verdict must be for the plaintiff, unless they shall further find, that the said Hamelin entered or continued in the employment of the said defendants with notice of and acquiescence in the above described risks as attending on his said work, and compensated by such wages as they may find he received, or else that he contributed to the said accident causing his death by a want of ordinary care and prudence in preserving himself from danger.

3. That if the jury shall find from the evidence that the defendants were, on the 5th of September, 1879, in possession of certain fixed property, to wit: a scaffolding on the line of Calvert street, in Baltimore City, and that the said scaffolding was traversed by a large number of persons with the sanction of the said defendants, and used by the said persons in the prosecution of works under the supervision and control of the said defendants, and with the nature of which the defendants were well acquainted; and if they shall further find, that the said scaffolding was suffered and permitted by the said defendants to be and continue so constructed and so destitute of ordinary and proper appliances for securing the safety of persons so traversing and using it as aforesaid, that the same became and was a source of peril to the said persons, and that Theodore Hamelin, deceased, being related to the equitable plaintiffs as stated in the declaration, if they shall find that he was so related, was, on the day and year aforesaid, killed while using the said scaffolding, with the approval and under the sanction and direction of the defendants, and that his death was directly caused by the said unsafe condition of the said scaffolding, and not by any want of ordinary care and prudence, or regard for his own safety on the part of the said Hamelin thereunto contributing, their verdict must be for the plaintiff.

4. That if the jury shall find from the evidence that the death of Theodore Hamelin, deceased, was directly caused by the wrongful acts or defaults of defendants, described in either the first, second or third prayers of the plaintiff, then the burden of proof is upon the said defendants to satisfy them that the said deceased was guilty of want of ordinary care and prudence, and regard to his own safety, which contributed to cause his death, and in determining whether he was so guilty, the jury will consider the ordinary instinct of self-preservation by which the said deceased is presumed to have been actuated, his intelligence and grade of employment, the length of time which they may find he had been engaged in the work in which he was killed, or in any similar work, and what, if any, familiarity they may find he had with the risks, generally attendant upon similar employment, and the proper means of avoiding them.

5. That in determining whether said Theodore Hamelin, deceased, so entered or continued in the employment of the defendants with knowledge of the risks to which that employment subjected him, as is in the plaintiff's second prayer described, the jury may consider the grade of labor for which he was engaged, the rate of wages he received therefor, the experience which they may find he had of the same or similar work, and how far the risks to which he was subjected while working for the defendants were necessary incidents to such work, or to what extent they might have been avoided by ordinary and reasonable precautions on the part of the said defendants.

6. If, under the Court's instructions, the jury shall find for the plaintiff, then in assessing the damages they are to estimate the reasonable probabilities of the life of the deceased, Theodore Hamelin, and give the equitable plaintiffs such pecuniary damages, not only for past losses, but for such prospective injury as the jury may find that they have suffered, or will suffer, as the direct consequence of the death of the said Hamelin; that for his children these prospective damages may be estimated to their majority, and as to the widow, to such probability of life as the jury may find reasonable under the circumstances.

7. If the jury shall find that Theodore Hamelin, deceased, was related to the equitable plaintiffs, as stated in the declaration, and that he was killed by falling from a great height while working as a laborer for the defendants in the constrnction of a bridge, and that his fall and death were caused by the slipping of a plank, upon which he stood on some greased rails, and would not have occurred had a longer plank been used or the rails removed; and that certain other employés of the said defendants, without any agency of the said Hamelin therein, selected the said plank, and failed to remove the said rails; and that the said other employés were not reasonably competent and skilful workmen to be employed in such work, unless placed under the immediate supervision and control of a mechanic skilled therein, whose orders they were bound to obey, or such as ordinarily careful and prudent bridge builders would have employed otherwise, and that no such supervision and control was provided by the said defendants; and that reasonably competent and experienced workmen, acting with ordinary care and prudence, would have used a longer plank or removed the greased rails, then their verdict, considering all the evidence in the cause, must be for the plaintiff, unless they shall further find that the said Theodore Hamelin, by standing, under all the circumstances of the case, upon such a plank so supported, was guilty of want of ordinary care and prudence in providing for his own safety; and the burden of proof is upon the defendants to satisfy them that he was so guilty.

8. The jury are instructed that in determining whether Theodore Hamelin, deceased, was guilty of want of ordinary care and prudence in providing for his own safety, by standing upon the plank mentioned in the plaintiff's seventh prayer they may consider the following facts, if they shall find them from the evidence, namely: that he went there by peremptory and unqualified command of the defendants' foreman; that the accident happened before he had time to examine the size and situation of the plank with any care; that it was covered with his fellow-workmen when he reached it; that he had never worked upon a bridge previously to his employment by the defendants, and during that had been habitually employed in a different portion of the work; that he had never been warned of the danger of using a short plank, or of not removing the rails, and that these had not been always removed at corresponding periods of the previous work; and finally, that it was the custom of bridge-builders to immediately discharge any workman who manifested unusual timidity or solicitude for his safety, and that the said Hamelin was out of his usual work, and had a family to support.

9. The jury are instructed that so much of the testimony of the witnesses, Curran, Bollman, Ramsey and Dudrow, as tends to show that the method of constructing the bridge upon which Theodore Hamelin was working at the time of his death, was the one usual among builders of similar bridges, is to be considered by them only in determining whether the said method was, or was not, a reasonably safe and prudent one and if they shall be satisfied from all the evidence in the case, that the said method involved unnecessary and unreasonable risks to the defendants' workmen, then the fact of its general use among bridge-builders, even if they shall find such fact, in the absence of all evidence of knowledge thereof by the said Theodore Hamelin, is irrelevant to the issues joined in this case, and...