State v. South Baltimore Carworks
| Decision Date | 09 June 1904 |
| Citation | 58 A. 447,99 Md. 461 |
| Parties | STATE, to Use of MORET, v. SOUTH BALTIMORE CARWORKS. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Henry D. Harlan, Judge.
Action by the state, to the use of Anna Di Nardi Moret, mother of Antonio Moret, deceased, against the South Baltimore Carworks. From a judgment for defendant, plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.
Edward I. Koontz, for appellant.
Vernon Cook, for appellee.
Antonio Moret, a young Italian, was killed while in the employ of the South Baltimore Carworks. The usual suit for damages soon followed. It was brought in the name of the state for the use of deceased's mother, Anna Di Nardi Moret. In addition to the usual plea of the general issue, the defendant filed a second plea, alleging that at the time of the accidental death of her son, and at the trial of the case below, the equitable plaintiff was, and still is, a nonresident alien being a resident of Italy. The plaintiff's demurrer to this plea was sustained, but at the close of her testimony in chief the jury were instructed that she had offered no evidence legally sufficient to entitle her to recover. Under this instruction there was a verdict and judgment for the defendant, and the plaintiff took this appeal.
It appears from the evidence that the defendant company is engaged in the manufacture, building, and repairing of steam railway cars at Curtis Bay, in Anne Arundel county, and that in connection with its works it has what is called a repair yard, in which there are a large number of railroad tracks switches, or sidings. On the occasion of the fatal accident which is the subject of this litigation, a train consisting of an engine and three or four cars belonging to the Baltimore & Ohio Railroad Company, and in charge of its employés, backed into the defendant's repair yard for the purpose of delivering a quantity of material. The Baltimore & Ohio train went in on what is called the "scale track," which was generally used to deliver material unless orders were given to the contrary. Further down on this same track there were standing ten or more new cars under construction, coupled together. Between the cars last mentioned and the Baltimore & Ohio train there were three service or box cars, and, for the purpose of making room on the scale track, the box cars were pushed into contact with the ten new cars above mentioned. The result was that the latter were put in motion, and the deceased, who was at work under one of them, was run over and killed.
It also appears from the evidence that it was the duty and the practice of John L. Smith, who was yardmaster, to receive and discharge cars, and to tell incoming engines on which tracks to go, and that it was also his invariable custom to give warning to any men working under the cars of the approach of a train. The employés of the defendant understood this, and the brother of the deceased, who was working with him at the time of the accident, so testified; saying that they all relied upon Smith for warning and protection. It is conceded or must be fromthe evidence, that Smith is a mere co-employé; and hence the familiar proposition is again presented, that, if the injury resulted from the negligence of a co-employé; there can be no recovery. But in the first place the contention of the plaintiff is that the direct and necessary cause of the accident was its failure to adopt and use the blue flag.
The testimony of a number of the witnesses was to the effect that it was customary in railway repair yards and shops to use a blue flag as a signal to protect men working under cars, and one of the witnesses said that, where the flag is used for that purpose, it is placed on...
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