Wonder v. Baltimore & O.R. Co.

• Decision Date: 12 May 1870
• Citation: 32 Md. 411
• Parties: JOHN WONDER v. THE BALTIMORE AND OHIO RAILROAD COMPANY.
• Court: Maryland Court of Appeals

32 Md. 411

JOHN WONDER v. THE BALTIMORE AND OHIO RAILROAD COMPANY.

Court of Appeals of Maryland

May 12, 1870

APPEAL from the Baltimore City Court.

This was an action on the case brought by the appellant, a brakeman, to recover damages for an injury sustained by him while in the employ of the appellee. The defendant pleaded not guilty, and thereon issue was joined.

Exception: The plaintiff asked the following instruction:

If the jury shall find, from the evidence, that the defendant was the owner of a railroad track, and of certain cars which were drawn on said track by horses, and that the plaintiff was employed by the defendant to work in its service as brakeman on said cars, and that, while engaged in doing his duty on one of said cars as brakeman, the brake thereof gave way, and the giving away of the brake caused the plaintiff to sustain serious, severe and permanent bodily injury, and that the giving way of the brake was caused by a defect or insufficiency therein, arising from an injudicious and unsafe construction, which might have been discovered by the exercise of ordinary care on the part of the defendant, and which rendered the car unsafe for the purposes for which it was used, and which was unknown to the plaintiff; and if the jury shall further find that the defendant did not use reasonable and ordinary care to provide a brake of safe construction for said car, and that the plaintiff could not have avoided the accident which injured him by the exercise of ordinary care, and that he was, on that occasion, using ordinary care, then the plaintiff is entitled to recover.

And the defendant prayed the Court to instruct the jury as follows:

1. If the jury believe, from the evidence, that the plaintiff, at the time and place when and where he suffered the injury complained of, was a brakeman in the employ of the defendant and acting as such, and that the said injury was caused by the brake on the car on which he was so acting as brakeman being defective and out of order, and that such defective condition was owing to the negligence of other servants of the defendant, whose duty it was to see that none but brakes in good condition should be put in service or used; yet the plaintiff cannot recover unless he shall satisfy the jury that in selecting the employés or servants, through whose negligence the accident occurred, the defendant did not use reasonable care in procuring for its operations faithful and competent employés; and further, that in this case the plaintiff has offered no evidence from which the jury may find that the defendant did not use such care in the selection of their said employés.

2. If the jury shall believe from the evidence that the happening of the accident, whereby the plaintiff was injured, was caused by the brake on the car in question being defective and out of order, and that such defective condition of the brake was owing to the carelessness or negligence of the agents or employés of the defendant, whose duty it was to see that the brake in question was in good order before being put in use by the defendant; yet the plaintiff cannot recover unless he shall satisfy the jury, from the evidence, that the defendant did not use reasonable care in procuring, for its operations, faithful and competent employés and sound machinery; and further, that in this case the plaintiff has offered no evidence to show that such reasonable care was not used by the defendant, and, therefore, their verdict must be for the defendant.

3. That to enable the plaintiff to recover in this action, he must satisfy the jury that the brake spoken of by the witnesses attached to the car on which he was acting as brakeman at the time of the accident, was insufficient and defective, and that such insufficiency and defectiveness was well known to the defendant, or that the defendant did not exercise reasonable care to procure sound machinery and faithful and competent employés.

4. If the jury shall believe from the evidence that the brake of the car on which the plaintiff was acting as brakeman at the time of the accident, was in good order and competent to its purpose, and that his neglect in not using it in a proper manner, was the cause of the injury complained of, then he is not entitled to recover.

5. If the jury shall believe from the evidence, that if the plaintiff, by noticing the action of the brake, could have seen the way to use it, so as make the brake effective, and failed to do so, whereby the accident happened, then he is not entitled to recover.

The Court refused to give the instruction asked by the plaintiff, and gave the instructions asked by the defendant. To this ruling the plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT and ALVEY, J.

Wm. Shepard Bryan, for the appellant.

It has been decided that the defendant was bound to use all reasonable care in procuring sound machinery--(27 Maryland, 603.) Machinery which was unsafe by reason of the mode of its construction would not fulfil the obligations of the defendant, even if it were in good repair. The evidence of the plaintiff tends to show that the hook's construction was unsafe, and that an eye-bolt ought to have been used. Even if the point of the hook in question had originally been turned in the right direction, (of which there is no evidence,) its liability to get out of order was a sufficient objection to the use of it.

If the jury were satisfied that the mode of constructing the brake rendered the car unsafe, and that this might have been discovered by ordinary care on the part of the defendant, it was the duty of the defendant to discover it. This is the doctrine of the plaintiff's prayer.

The jury could determine from the evidence whether the construction was bad or not; and also whether the objections were obvious on examination.

It is certain, from all the testimony in the cause, that if an eye-bolt had been used instead of a hook, the accident would not have happened. Hard vs. Vert. and Canada R. R., 32 Vermont, 479, 480; O'Connell vs. Balt. and Ohio R. R. Co., 20 Md., 213; Bartonshill Co. vs. Reid, 3 McQueen, 266, ( H. of Lords;) Bryden vs. Stewart, 2 McQueen, 30; Marshall vs. Stewart, 33 Eng. L. & Eq., 1.

Assuming that the plaintiff's evidence was true, the defendant had failed to use suitable arrangements to make the brake safe; such arrangements as were used by another railroad, and such as the judgment and experience of the witnesses approved.

The fact that the defendant did not use suitable machinery, is sufficient evidence that it did not use reasonable care to provide it, and this evidence could be countervailed only by showing that it had made an effort to procure it, and had been unable to do so; and furthermore, if any such exculpatory evidence had been offered, it would have been the province of the jury to determine the sufficiency of the excuse. Balt. & Susq. R. R. Co. vs. Woodruff, 4 Md., 257.

The negligence of fellow-servants is not a question in this case. The breach of duty alleged against the defendant consists in not taking all reasonable care to provide proper machinery. And this want of care is proved, as a cause is inferred from its effects.

F. C. Latrobe and James A. Buchanan, for the appellee.

ALVEY J., delivered the opinion of the Court.

This is an action by an employé against his employer, to recover for an injury received while engaged in the work for which he was employed, by reason of defective machinery that he was required to operate.

The plaintiff was a brakeman in the employ...