State Ex Rel. Moret v. South Baltimore Car Works

Fowler, J., delivered the opinion of the Court. Antonio Moret, a young Italian, was killed while in the employ of the South Baltimore Car Works. 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 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 non-resident 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 and Ohio Railroad Company and in charge of its employees, backed into *470 the defendant’s repair yard for the purpose of delivering a quantity of material. The Baltimore and 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 ears last mentioned and the Baltimore and 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 yardmasterto 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 employees 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 from the evidence, that Smith is a mere co-employee, and hence the familiar proposition is again presented, that if the injury resulted from the negligence of a co-employee 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 blüe 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 the draw-head of the car about three and a-half feet from the ground. No such device was used by the defendant; but as we have seen, it was the duty and practice of one of its employees instead of using the blue flag which never was used by the defendant to give *471 personal warning of approaching danger. It can hardly be said as a matter of law that such a system or custom does not afford quite as much protection as the use of a blue flag. The man whose duty it is to place the flag, as well as the man whose duty it is to give the personal warning may forget to perform his duty, and in either case injury or as in this case, unfortunately, death may follow. In other words, both systems would doubtless be eminently successful and afford ample protection provided they are faithfully administered. If we are correct in this conclusion it must follow there can be no recovery in this case, for the defendant having made reasonable and proper arrangements for the protection of its employees, it is not responsible nor does it guarantee to each that the other co-employees will faithfully carry out such arrangements. Or, as is said in 12 Am. & Eng. Ency. of Law, 967, (Fellow Servants) “when the duty of establishing and promulgating proper rules and regulations has been performed, the master’s responsibility is at an end; he cannot be charged with liability to one servant for the failure of another servant to comply with prescribed rules and regulations.” This rule is well established and many cases are cited on the page above mentioned of the Encyclopaedia to sustain it. A similar principle, however, will be found in Natl. Enameling Company v. Cornell, 95 Md. (opinion by Boyd, J.) where it is said that, in Maryland, whatever the rule may be elsewhere, it is settled that when the master has furnished his employee proper and safe machinery and instrumentality with which to work, his duty is fulfilled, provided he employs competent servants, and he will not be liable to, them for damages caused by injuries resulting from their negligent use of or failure to repair such instrumentalities. It follows, therefore, that, as was said in the case just cited, that the defendant is not responsible to an employee for the negligence of a fellow servant — “the' negligence in that respect being one of the risks assumed -by the servant when he enters the service of the master.” And, finally, this brings us to the brief consideration of another reason why there can be no recovery in this case — even *472 if-it could be assumed that there was' a ^failure'on the part of the defendant to prescribe and promulgate a reasonably effective system by flag or otherwise to protect the deceased'while he was working in a perilous place. That reason is that under the circumstances of this case the deceased must be taken to have assumed the risk resulting from such a careless or negligent system. He had been employed by the defendant for about two years and during all that time according to the testimony of his brother, the system of personal notice by a fellow servant to avoid danger was in force. Under these circumstances, as was said in Wood v. Heiges, 83 Md. 268, "If a servant hás knowledge of the circumstances under which the employer carries on his business and chooses to accept the employment, dr continue in it, he assumes such risks incident to the discharge of his duties as are open or obvious. In such cases it is not a question whether the place prepared for him to occupy and which he assents to accept, might, with reasonable care, have been made more safe. His assent dispenses with the performance on the part of the master of the duty to make it so.” It is needless to say that it is apparent from all the evidence that the risks to which the deceased was subjected were well known to him and obvious to all. As one ot the witnesses said they were constantly warned of the danger and therefore they knew it as well as they knew anything else of which they had constant experience. And in the more recent case of Eckhard v. Lazaretto Guano Co., 90 Md. 189, this seemingly harsh rule is announced and strictly enforced. It is-so-well settled, however, that it need not be fortified by the citation of any further authorities. There is a striking appli-. cation of this'rule in O'Rorke v. Union Pac. R. R. Co., 22 Fed. Rep. 189, opinion by Brewer, J., in the Circuit Court District Colorado — where it would seem that a red and not a blue flag is used to protect one working in a place of danger" ünder a car. (Decided June 9th, 1904.) It follows that this case was properly taken from the jury and the judgment must be affirmed. Judgment affirmed with costs.