Skinner v. McLaughlin

Boyd, J:, delivered the opinion of the Court. The appellee sued the appellant for injuries sustained by the former while assisting in launching a scow in the shipyard of the latter. Although the record shows that a great many exceptions were noted during the progress' of the trial, the action of the Court in rejecting the 17th and 18th prayers offered by the defendant is all that we are asked to review. They are as follows : Seventeenth. “The testimony failing to show that the plaintiff was injured through any fault of the defendant, the verdict under, the pleadings must be for the defendant.” Eighteenth. “The defendant prays the Court'to-instruct the jury that under the pleadings in this case there is no legally sufficient evidence tp' show any failure of duty oiy the part of the defendant and therefore the verdict must be for the defendant. ” *529 The appellee was employed by the appellant in the latter part of November, 1896, and received the injury complained of on the 21st of January, 1897. He testified that he was employed as a laborer and did such work as he was told to do. Although the appellant said he had no recollection of it, the evidence on the part of the appellee was to the effect that the appellant himself directed the appellee to assist in launching this scow, if John Revel, another employee, did not come back in time and as he did not come the appellee obeyed the order given him by the appellant. The method adopted in ■launching the scow is described with great detail in the record and briefs, and a model used at the trial was before us. The scow was eighty feet long, twenty-eight feet wide and eight feet deep. It was decked over, excepting the space for the deck-house near the lower end. When ready for launching it was supported by columns of blocks of wood so arranged as to ■make the scow incline towards the water’s edge, and under it were stationary skids which also inclined in the same direction. Sliding skids were placed on the stationary ways, all of which were greased, so that when the weight of the scow came on them it would easily move into the water. For the purpose of “snubbing” or stopping the scow-after it slid in the water, one end of a rope, which was something less' than two inches in diameter, was fastened to a beam at the water’s edge, near the lower end of the middle of the scow, and the rope was carried under the bottom of the scow, over the upper end and the rest of it was coiled on the deck. There were three “Sampson posts,” one on each side and one in the centre of the deck, a few feet from the upper end of the scow. Four men were placed upon the deck to handle and hold the snubbing line, and thereby stop the scow when far enough out in the water. The blocks and other supports were removed so as to lower the scow to the skids, and when it slid off the ways a turn of the rope was put around the centre Sampson post so as to enable the men to snub or stop the scow as it went out into the water. On the deck was a steam winch, five or six pieces of large *530 timbers, one hundred and sixty planks, one inch thick, one foot wide and sixteen feet long, and some other articles. The plaintiff’s testimony was to the effect that the planks were piled up about twelve or fifteen feet in the rear of the centre Sampson, post.. The four men were in line along the rope— plaintiff being the second one from the post, Mr. Wheltle,the foreman around the yard, being next to it. When the supports were removed the scow slid down on the skids, rapidly according to the plaintiff’s witnesses, Wheltle wrapped one turn of the rope around the Sampson post and about that time there was a jerk or jar which caused the plaintiff to lose his. footing and in some way the rope caught his foot and his leg was crushed against the Sampson post by the weight and speed of the scow pulling on the rope. He was taken to a hospital and after being there for some days it was found necessary to amputate his leg. The testimony on the part of the appellee, which we must in passing on these prayers accept as true, was that the appellant personally ordered him to assist the other men and it is not denied that he was on the scow a few minutes before it was launched. He was near when the accident happened, although he had gone off the scow. Several witnesses testified that he called out to the men not to let it run into a boat which was in the dock. The theory of the appellee is that the place where he was called upon to do this work was not reasonably safe, that the appellant knew that fact but he (the appellee) was not aware of the danger which was not apparent to an’ inexperienced person. In American Tobacco Company v. Strickling, 88 Md. 504, we quoted from the case of B. & O. R. R. Co. v. Baugh, 149 U. S. 368, where it is said : “ A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place, and the tools and machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools and machinery, *531 than such as is obvious and necessary.” Of course if the danger be such that the servant by the use of such care as can be reasonably expected of one occupying a position or undertaking the work he does can know it, and he voluntarily undertakes the work, he has no right to complain of an injury resulting therefrom, and in accepting the employment he assumes such risks as are usually incident to the service. There are but few occupations requiring manual labor that are not more or less dangerous, and there are many risks that the servant is subjected to from the negligence of his fellow servants for which he has no remedy against the master, if he is thereby injured. But as was said in Lorentz v. Robinson, 61 Md. 70, “ If injury results to the servant from the direct act or negligence of the master, as where he is personally superintending the work and giving orders, he is answerable for the damages to the same extent as if the relation of master and servant did not exist. This doctrine is illustrated by cases where the master, without warning him of the danger, orders his servant into a situation which the master knows, and the servant does not know, to be dangerous, and the latter obeys and is thereby injured;” or as stated in Wood v. Heighes, 83 Md. 268, “the master cannot negligently expose the servant to such extraordinary perils in the course of the employment that the servant from the want of knowledge, skill or physical ability, cannot by ordinary care and prudence, under all the circumstances of the case, guard himself against them.” This case was very fully argued and perhaps the authorities cited by counsel deserve more extended notice than we will give them in this opinion, but there have been so many cases in this State involving the liability of masters to servants that it seems useless to us to quote further from them or to enter into a prolonged discussion of the subject. The general principles applicable to them are well settled and it is only when the facts of a particular case distinguish it from the usual ones that any difficulty arises, and then it is usually determined by such facts. In this case the Court below granted ten prayers offered by the defendant and many of the propositions now *532 contended for by the appellant were embodied in them. There was unquestionably some evidence before the jury that .the place in which the appellee was directed to work was dangerous by reason of the fact that there was not sufficient room for the handling of the rope, and also that there was great danger of the rope injuring any one not acquainted with the ■ use of it when occupying such a position. As the scow slid into the water the rope had to be taken in so rapidly that it could not be regularly coiled. One witness said it “would coil, kink, go in every way, fling fashion and liable to catch any obstruction that is in its way, no matter how small or large.” When the scow started the men on the deck had to haul in about eighty feet of this heavy rope, which ran under the scow, and just as the rear end of the boat reached the water. the rope was wrapped around the Sampson post once and the men were expected to hold on to it, paying it out as gradually as the speed of the scow and their strength would permit, after it passed the beam to which the rope was attached. ■According to the appellee’s testimony, it went so rapidly that it jerked the rope that had been piled up behind the men, forming “ kinks ” in it, one of which'caught the appellee's foot which was in some way raised off the floor of the deck, and he was dragged in that kink to the Sampson post. Several witnesses said that such an accident was liable to occur to a .person unacquainted with the movements of a rope, under such conditions, and if the testimony offered by the plaintiff is to be accepted, as it must be, there can be no doubt that it .was dangerous to require four men to thus attempt to handle the rope in the space between the lumber pile and the Sampson post. Nor can there be any doubt that there was evidence to the effect that the plaintiff did not know the danger. His own testimony was that he had had no experience in launching boats, and', that of other witnesses was that one who was not acquainted with the peculiar movements of a rope in thus launching a boat would not know the danger attending it unless warned. It is true that this is contradicted by testimony offered, by the defendant, but that was for the jury and not *533 the Court to pass on. The plaintiff had never, before this accident, been engaged in this character of work. The appellant had no reason to assume that he was acquainted with the danger, as the work he had been doing prior to that time, in the employ of the appellant, was of an entirely different character. If it be conceded that under the appellee’s employment, as a laborer, he could properly be called upon to aid in launching a boat, still, if during all the time he had been employed there he was engaged in other work, and had no opportunity to become acquainted with this sort, and especially if it was dangerous to handle the rope by reason of the small space left between the lumber pile and Sampson post, or on account of the proximity of other boats in the dock, as testified to by some witnesses, but such danger was not apparent to an inexperienced person, the appellant owed a duty to the appellee to warn him when he directed him to take part in work that was thus dangerous. He had had a large experience in the building and launching of boats. He was present and saw, or could have seen, the precise conditions under which the men must do the work, and when he directed one, who was a mere laborer and without experience in this character of work, to help others, but gave him no warning of the dangers, or any instructions as to how he might protect himself from them, it cannot be said as a matter of law that he was not at fault or that he had not failed in any duty he owed the plaintiff. In what we have said we of course assume that there were the hidden dangers spoken of by the plaintiff’s witnesses, that the plaintiff was not aware of them and could not have been by the exercise of reasonable care and that the defendant was—concerning all of which there was sufficient evidence to go to the jury. It may be difficult to reconcile the verdict of the jury with the instructions that were given by the Court and the testimony that appears in the record, but that is not for us to pass on, and being of opinion that the Court below was right in declining to grant these prayers the judgment will be affirmed. (Decided January 17th, 1902.) Judgment affirmed, appellant to pay the costs.