Hanrathy v. Northern Central Railway Co.

Bartol, C. J., delivered the opinion of the Court. The questions presented hy this appeal have been before us for consideration on several occasions, they arise from the relation of employer and employe and involve an inquiry into the mutual rights and liabilities which the law imposes upon parties standing in that relation to each other. It appears from the record that the appellant was employed at the workshops of the appellee at Bolton, was seriously injured hy an accident, and has brought this suit to recover damages therefor from the appellee. The proof shows that the appellant was employed in putting flues or pipes under a steam hammer to he mashed, and in removing them from the anvil after they had been mashed ; while so engaged his hands were caught under the hammer and badly injured, so that one of them had to he amputated. At the time the accident occurred Mr. Boss, another employe, had immediate charge of the hammer and was engaged in. working it; the foreman of the shop was Mr. ljams, who employed the appellant and set him to work “ feeding the hammer ; all the men in the shop were under his control, employed hy him, and he could discharge them at his pleasure.” Mr. Cole was the ‘Assistant Master of Mechanics,” having a general supervision over the company’s shops in Baltimore, whose duty it was to provide proper machinery for its shops. In case of any repairs being needed to the hammer it was the duty [287] of Mr. Boss to report the same to Mr. Ijams, and of the latter to report to Mr. dole his immediate superior. There is no evidence that the appellee was negligent in failing to employ competent and faithful employes, or in not procuring sound and sufficient machinery, on the contrary the proof is uncontradicted that Boss and Ijams were both “first class men” for their positions, and that the hammer was of approved construction, and the best kind of hammer made, when it was placed in the shop. Some evidence was offered by the plaintiff tending to prove that the accident was caused by the steam hammer not being in good order and condition at the time, or by the negligence of Boss who was immediately in charge, engaged in running it. In this state of the proof the Court below rejected the several prayers asked by the plaintiff, and instructed the jury “that although they might find from the evidence that the injuries to the plaintiff were caused by the defective condition of the steam hammer, or by negligence of the agents of the defendant or by both combined, yet the plaintiff is not entitled to recover in this action without showing also that the defendant did not use reasonable care in procuring for its operatives sound machinery, and faithful and competent employés ; 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, if they find that at the time of the injuries to the plaintiff, he was in the employ of the defendant at its machine shops at Bolton.” The legal proposition asserted by this instruction is supported by the uniform course of decisions in this State, beginning with O’Connell’s Case, 20 Md., 212, and followed by the cases of Shauck, 25 Md., 462 ; of Scally, 27 Md., 589 ; of Wonder, 32 Md., 411; and Moran’s Case, 44 Md., 283. In those cases the rules governing the [288] rights and liabilities of masters and employes in cases of this .kind have been fully stated, and need not be repeated here. There can be no doubt or question that Mr. Boss, to whose negligence the accident is imputed, was a fellow-servant engaged in a common employment with the plaintiff, and according to all the authorities the defendant would not be liable to the plaintiff for the consequences of his negligence, even if it had actually caused the accident. That was one of the risks which the plaintiff assumed when he undertook the employment. And this principle applies whether the alleged negligence of Boss consisted in want of care in the management of the steam hammer or in failing to report to the foreman Mr. Ijams that it was not in good order and needed repair. Some stress has been laid by the appellant’s counsel upon the fact stated by the plaintiff in his testimony, that he was employed to wheel scrap iron from the yard into the shop where the hammer was, and to fill the tanks with water and bring ice, and that the first time he worked at the hammer was on the morning of the accident. It is argued that this was not in the line of his employment. But the testimony of Mr. Cole was that “when first employed by the company he was liable to he put to do anything he was called on to do in or about the shop.” However this may be, it appears from his own testimony that he had been at work there for two months ; — made no objection when called on to work at the hammer, and voluntarily undertook that employment. The case of the Railroad Co. vs. Fort, 17 Wal., 553, has therefore no application to the present. Erom the views we have expressed it follows, there was no error in granting the defendant’s prayer ; and that the prayers of the plaintiff were properly refused. We have considered it unnecessary to comment upon them particularly, in our opinion, looking at the facts of the case as [289] disclosed by the record tliere was no evidence legally sufficient to support tbe plaintiff’s claim and the instruction given to tbe jury was correct. (Decided 7th March, 1877.) Judgment affirmed.