Texas Co., Inc. v. Washington, B. & A. Electric R. Co.

• Decision Date: 16 January 1925
• Docket Number: 67.
• Parties: TEXAS CO., INC., v. WASHINGTON, B. & A. ELECTRIC R. CO.
• Court: Maryland Court of Appeals

127 A. 752

147 Md. 167

TEXAS CO., INC., v. WASHINGTON, B. & A. ELECTRIC R. CO.

No. 67.

Court of Appeals of Maryland

January 16, 1925

Appeal from Superior Court of Baltimore City; H. Arthur Stump Judge.

"To be officially reported."

Suit by the Texas Company, Inc., to the use of the United States Fidelity & Guaranty Company, to the use of John Miller against the Washington, Baltimore & Annapolis Electric Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Argued before BOND, C.J. and PATTISON, URNER, ADKINS, and WALSH, JJ.

J. Kemp Bartlett, Jr., of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellant.

George Weems Williams, of Baltimore (Marbury, Gosnell & Williams and Clarence W. Sharp, all of Baltimore, on the brief), for appellee.

WALSH J.

This suit was brought by the Texas Company, incorporated, for the benefit of the United States Fidelity & Guaranty Company and John Miller, against the Washington, Baltimore & Annapolis Electric Railroad Company, to recover for injuries sustained by John Miller and alleged to have been caused by the negligence of the defendant, and the present appeal is from a judgment in favor of the defendant.

Miller, one of the equitable plaintiffs, was employed by the Texas Company in the capacity of chauffeur's helper, and on February 1, 1923, he, together with a chauffeur named Walls, tooks one of the Texas Company's trucks to the freight shed of the defendant in Baltimore city for the purpose of obtaining about 40 empty oil drums consigned to the Texas Company. The defendant had sent a postal card to the Texas Company, notifying it of the arrival of the drums, and asking that they be called for, and it was in response to this postal that Miller and Walls went to the freight shed. On arriving there the truck was placed at a point about 15 feet from the oil drums, the space between the truck and the drums being filled with freight, and Walls, in accordance with the practice and rules of the defendant, went to the cashier's office to have his card O. K.'d so that he could obtain the drums. After leaving the cashier's office he went to the delivery clerk of the defendant, a Mr. Ballard, to turn over the card, and that gentleman being busy with another customer, Walls walked over to the oil drums, and just as he reached them Miller suffered the injury for which this suit was brought. When Walls went to the cashier's office, Miller went on the platform of the freight shed and, as, in his own words, "there was all kinds of freight in front of those drums, barrels, boxes, and bales, and things of that kind," he asked another employee of the defendant, a Mr. Mason, whom he described as a receiving clerk, whether they could have some help in getting the drums. Mr. Mason said:

"That they were all busy, and could not give us any help, and that there were two of us on the truck to get the empty drums."

Miller also testified that "Mr. Walls, the chauffeur, and I had gotten empty drums there lots of times before," and that they usually got them without help from the defendant.

"On this occasion I asked Mr. Mason and he said he was too busy to have any one help me. Then I went into the aisle and there was an empty barrel there which looked like a potato or flour barrel. This aisle was leading back to the drums and the freight was piled on both sides of it. The drums were at the far end of the aisle. There was nothing in this aisle except this empty potato barrel. It was necessary to move this barrel because the aisle was not wide enough to bring the drums through, and, as soon as I moved it, a radiator fell over on my foot. I could not get in and get the drums without moving the barrel, and as soon as I moved it the radiator fell on my foot and boxes fell all around me."

On cross-examination Miller stated he had been going to the defendant's freight station for drums for nearly two years; that the freight shed was open on both sides; and that it was lighter than the courtroom in which the case was being tried. He also admitted that in his application for compensation he stated that the radiator which fell on him seemed to be leaning, and he testified further on this point:

"Yes; it seemed to be leaning because there was other freight piled up against it.

Q. You saw it? A. Yes. Q. And it was leaning when you saw it? A. Well, it looked like it was leaning, yes, sir.

Q. Looked like it. But you saw that radiator? It was daylight, wasn't it? A. It was daylight, yes, sir.

Q. I mean you could see the various articles around, couldn't you? A. Well, there was so many. There was lots of stuff there, yes, sir. * * *

Q. And you could see the various articles of freight? A. Yes, sir. * * *

Q. Do you remember telling the person who made out this (application for compensation) that the radiator seemed to be leaning? A. Well, then, at that time I knew everything perfect, but it has been a good while now to remember everything exactly the way it was.

Q. Sure, of course, Mr. Miller. But have you any doubt that that is correct? A. Yes, that is perfect, the way it is there now.

Q. That the radiator seemed to be leaning? A. Yes.

Q. How did the radiator seem to be leaning, against anything? A. Well, I do not remember that exactly now either, but there was a barrel there I had to move to get in the aisle, and there was not only a radiator, but other things there too, a whole lot of stuff. They were not all setting straight, no matter what it was.

Q. The radiator was leaning? A. It is in all those stations, always."

He then continued:

"I have been engaged around freight terminals ever since I have been with the Texas Company. * * * I know about the way freight is ordinarily piled. * * * The radiator was near the barrel, for as soon as I moved the barrel it fell on me. * * * I do not know whether the empty barrel held the radiator up. It may have, but I did not see it. * * * The radiator had boxes against it on the other side."

He also stated that the freight shed was congested that day, and that the freight was piled about the same way it ordinarily was in all freight sheds visited by him.

It further appeared that Miller filed a claim for compensation under the provisions of the Workmen's Compensation Act, received an award, and had signed a final settlement receipt. The present suit was instituted under the provisions of section 58 of article 101 of volume 3 of the Code (the Workmen's Compensation Act) which authorizes the recovery of damages, where the injury was caused under circumstances creating a legal liability in some person other than the employer.

At the trial below the plaintiff offered five prayers and the defendant six, but the court refused all the prayers of the plaintiff and the defendant, and gave an instruction of its own, and the verdict of the jury being for the defendant, the plaintiff appeals. There are three exceptions in the record, the first two being to rulings on the evidence, and the third to the action of the court in refusing to grant the five prayers offered by the plaintiff, and in granting the court's own instruction.

The first and second exceptions were taken to the refusal of the court below to allow the witness Mason to answer the following questions:

"In what manner was the work of unloading cars by this colored labor done?" and "state whether, when freight was taken off cars and put on the platform, it was carefully and safely piled in place."

We find no error in these rulings. The answers to the questions asked would necessarily have included testimony regarding the manner in which the defendant's servants piled freight on other days and at different places on the platform, and such testimony would, in our opinion, have been irrelevant to the issues in this case.

The third exception embraces the rulings of the court in rejecting the five prayers offered by the plaintiff, and the action of the court in granting its own instruction. The court's prayer, which was the only one given the jury, was based on the theory that Miller could not recover, unless the jury found that the truck driver, Walls, had directed him to go in amongst freight of other consignees to get out the freight the truck driver had come for, and under this instruction the jury found a verdict for the defendant.

We do not consider it necessary to pass upon the validity of the foregoing instruction, nor upon the correctness vel non of the prayers offered by the plaintiff, because in our opinion the second prayer of the defendant, asking that the case be taken...