Washington, B. & A. Electric R. Co. v. Owens

• Decision Date: 27 June 1917
• Docket Number: 17.
• Citation: 101 A. 532,131 Md. 1
• Parties: WASHINGTON, B. & A. ELECTRIC R. CO. v. OWENS.
• Court: Maryland Court of Appeals

101 A. 532

131 Md. 1

WASHINGTON, B. & A. ELECTRIC R. CO. v. OWENS.

No. 17.

Court of Appeals of Maryland

June 27, 1917

Appeal from Superior Court of Baltimore City; John J. Dobler, Judge.

"To be officially reported."

Action by Sylvia L. Owens, administratrix of Marcellus F. Owens deceased, against the Washington, Baltimore & Annapolis Electric Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

George Winship Taylor and George Weems Williams, both of Baltimore for appellant.

Thomas Mackenzie, of Baltimore, for appellee.

BURKE J.

The appellee, plaintiff below, recovered a judgment in the superior court of Baltimore City against the appellant, and this is the defendant's appeal. The suit was brought under the federal Employers' Liability Act, approved April 22, 1908, to recover damages for the death of Marcellus F. Owens, who was injured by the alleged negligence of the defendant, while he was in its employ, and died as the result of said injury. The first section of that act provides:

"That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; and if none, then to the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The declaration contained two counts. In the first count it was alleged:

"On the 2d day of July, 1915, Marcellus F. Owens, the deceased aforesaid, and the husband of the said equitable plaintiff Dora Owens, and the father of the said equitable plaintiffs, Sylvia L. Owens, Gilbert Owens, and Franklin Owens, was and for a number of years last preceding said date had been employed by and engaged in the service of said defendant corporation as a blacksmith or mechanic in the repair works and shops of the defendant, engaged in work upon the cars and instrumentalities used by it in interstate commerce as hereinbefore and hereinafter described; that on the said 2d day of July, 1915, the said Marcellus F. Owens was employed, engaged, and acting in the service of the defendant as a blacksmith or mechanic in the performance of his work upon the car and instrumentalities used by the defendant in its interstate commerce aforesaid between the state of Maryland and the District of Columbia, and within the jurisdiction of the United States of America hereinafter referred to."

At the conclusion of the evidence for the plaintiff the defendant submitted several prayers by which the court was asked to withdraw the case from the consideration of the jury upon various grounds. The same questions as to the plaintiff's right to recover were raised by the defendant's special exceptions filed to granting of the plaintiff's prayers. These prayers and special exceptions were overruled by the court. The rulings on the prayers and special exceptions constitute the only bill of exceptions in the record. These rulings present several important questions as to the plaintiff's right to maintain the suit under the act; but in the view we take of the case only one of these questions need be considered. That question is this: Did the plaintiff offer any legally sufficient evidence tending to show that Marcellus F. Owens was injured while he was employed in interstate commerce, within the meaning of the federal Employers' Liability Act? Upon the substantial and controlling facts, which are few and simple, there is no conflict in the evidence, and these facts are here stated.

The defendant is a common carrier, and owns and operates an electric railroad which runs from Baltimore City, Md., to and into the city of Washington, in the District of Columbia, and also from Baltimore City to Annapolis, Md. It is engaged in both interstate and intrastate transportation. The branch line to Annapolis connects with the main line at Annapolis Junction where the company's repair shops are located. Marcellus F. Owens was in the employ of the defendant working as a helper in the blacksmith shop at this place. There were four persons employed in this blacksmith shop, viz. Robert F. Bryant and Arthur T. Andrews, both blacksmiths, and William Lowman and Marcellus F. Owens as their respective helpers. About a year and a half before Owens was injured Robert F. Bryant brought to the shop an old army pistol. This old pistol was used in the hunting of rabbits near the shops, and was at times discharged about the shops for amusement or sport. It was kept in a locker in the shop in which Bryant and Lowman kept their clothes and tools. Early in the afternoon of July 2, 1915, William Lowman took the old pistol, which was loaded with powder and paper wadding, from the locker, intending to discharge it either for amusement or to frighten some one about the works. When he was at or near the door of the blacksmith shop the pistol was accidentally discharged and the load entered the right thigh of Owens, who was standing near by at the time. The wound was washed at the shop and Owens went home, and that evening he consulted Dr. Thomas W. Linthicum, who was called as a witness and testified:

"That on July 2, 1915, Marcellus F. Owens was brought to his office about 8 o'clock in the evening suffering from a gunshot wound in the right thigh. The hole at the entrance of the wound was about as large as a half dollar, ragged and torn. He dressed it. Some one had attempted to dress it before, and had removed some of the débris. There was not a bullet in the pistol, but it was loaded with hair or dirt or packing of some kind. The wound was blackened as if a powder wound. He was burned through his clothes. It was deep, and went through nearly all the muscles, practically to the bone. He removed some particles resembling hair. Owens stated to him that it was packing from an old refrigerator. He said that was what the pistol was loaded with. He removed from the wound a lot of hair that looked like packing, although he had never seen packing of a refrigerator. He saw Owens again July 3d, and every day until the day of his death, on July 9th, at the University of Maryland Hospital. He thinks he died from the effects of this wound."

It was essential to the plaintiff's right to recover to prove that at the time the deceased was injured he was employed in interstate commerce work. Howard v. Ill. C. R. Co., 207 U.S. 492, 28 S.Ct. 141, 52 L.Ed. 297; Osborne v. Gray, 241 U.S. 16, 36 S.Ct. 486, 60 L.Ed. 865; Ill. C. R. Co. v. Behrens, 233 U.S. 473, 34 S.Ct. 646, 58 L.Ed. 1051, Ann. Cas. 1914C, 163; Minn. & St. L. R. Co. v. Winters, 242 U.S. 353, 37 S.Ct. 170, 61 L.Ed. 358. In what particular service was Owens engaged on the day he was injured? Was it interstate or intrastate commerce? The record is entirely silent. The evidence of the character of work done by him is found in the testimony of Robert F. Bryant as follows:

"Q. What kind of work did you do in the shop? A. Blacksmithing. Q. You did it all? A. No; Mr. Andrews, he had a helper. Q. I don't mean you personally, but in your shop you four men did all the repairs on all the cars of the defendant? A. Doing repairs. Q. That was the only blacksmith shop out there in those works? A. Yes, sir. Q. This railroad line runs from the District of Columbia over to Baltimore? A. I rode on it that far; yes."

Whether he was employed on the day he was injured in work on cars used in intrastate service-on the Annapolis division-or in repairing cars...