Baltimore & Ohio Railroad v. Stricker

Bartol, C. J., delivered the opinion of the Court. This suit was brought by the appellee to recover for injuries received by being carried against a bridge, spanning the appellant’s road, while he was on top of a “house — 64 — car,” in the discharge of his duty as conductor of a freight train. The accident happened on the 6th day of June 1876, in passing under the bridge, called “Bull Eye Bridge’’ which was built by the appellant, on a public road’ about three-fourths of a mile east of Martinsburg. It appears from the evidence, that the appellee entered the service of the company in 1867, as brakeman on freight trains between Martinsburg and Baltimore. In July 1869, he was promoted to be a conductor of freight trains on the same section of the road, and continued , in that employment till the time of the accident. In that capacity it was his duty to assist at the brakes. When the appellee first went upon the road, the house cars of the company were from nine to ten feet high; about the year 1869, connection with western roads began to be formed, and higher cars were introduced from the West, the company also began to construct new cars, which were ten feet ten inches, to eleven feet high, and the western cars, sometimes used, were eleven and a half feet high. The plaintiff testifies that some of the new cars were on the road while he was brakeman; the number of these was increased, and they were in general use after 1872. or 1873. They were constructed with the brakes on top, and to manage the brakes, it was necessary to be on the top of the car. In 1872, the old “Bull Eye” bridge was removed, and a new bridge built, which was of different construction, and of about the same height as the old one, that is to say seventeen feet, four inches high, measuring from the railway to the struts or lowermost timbers of the bridge. On the 6th of June 1876, the appellee, having in charge a freight train, consisting of twenty-three loaded cars, viz., eighteen gondolas, four hoppers and one of the new house cars, and also the caboose, was ready to start from Martins-burg at 6 o’ clock in the morning. In order to leave the track — 65 — clear for an expected passenger train, as was his duty, he took his train upon a siding, or switch, between Martinsburg and the bridge, where he remained till half past 6, when he brought his train on the main track and proceeded on his way. The distance from the bridge to the switch was 200 to 300 yards, from which place the bridge was in full view. The accident happened in this way; the appellee was assisted by one brakemau, who remained behind to lock the switch; the appellee being specially charged to see that this important duty was performed, held the train waiting till it was done. lie was standing on the 6th or 7th car from the rear of the train, looking back to see the brakeman lock the switch, and for his signal, when he saw this, he immediately signalled the engineer to go on, and began to let off the brakes, had let. off the brakes as far back as the house car, which was the last car except the caboose, had got on top of it about the centre, and was walking toward the brake, for the purpose of letting it off, and then going into the caboose, when he was struck by the strut of the bridge, his back being then turned towards it. The appellee testified that he had never heard of any one having been struck by this bridge, before he was struck, that no one on the part of the company had ever told or notified him that this bridge was too low, that he did not know its exact height, but supposed that the struts were high enough to clear a man standing on top of such a car as he had. Had never before had occasion to be adjusting the brakes, or to be walking on top of a car as he was passing under that bridge. Had been on the siding often before, but had never started from it on his trip, had always started from the station, and that gave him ample time to have the brakes adjusted before he got to the bridge. — 66 — Proof was given that it was known to Mr. Wilson, the the company’s master of road, that the “ Bull Eye ” bridge was not high enough to allow a man to pass under it standing on top of the new house cars; and further that there were no signal ropes to warn persons approaching the bridge, such as were used at some of the other bridges. On the other hand, a number of witnesses, examined by the defendant, conductors, brakemen, and engineers, employed on the same section of the road, testified that, this bridge was too low to allow a tall man to pass under it, standing upon a house car, that this fact was plainly visible and obvious to any one passing under it, and that it was the htfbit of brakemen and conductors, when on top of a house car, to stoop or remain seated while passing under the bridge. Two of them Bierman the engineer, and Dixon the brakeman, were on the same train with the appellee when he was struck, both testify that they had often seen him stoop down when passing under the same bridge. And the appellee himself stated in his testimony, that he was down on the gondola car, and never thought of the bridge; if he had known how near he was to it, he would not have gone on top of the house car, and if he had seen the bridge would have sat down. He further states that he never made any complaint to any officer of the company of the lowness of the bridge; knew that the bridge which was there before 1872, was too low to allow him to pass under it standing on top of the new house cars, and always stooped in going under it; had heard that the new bridge was higher, but did not know how much higher, did not know till that morning that he could not pass under it with safety standing on a house car, might have supposed it was too low, but could not tell it till he was struck. It appeared in proof also that the appellee lived in Martinsburg, was well acquainted with “ Bull Eye ” bridge, — 67 — its position and surroundings, and while in the employ oi the company made about thirty'trips a month, fifteen each way, and had passed under the bridge over 3000 times, or nearly 1500 times after the new or higher cars were generally used. Other testimony is offered which it is not necessary to repeat. Three witnesses McGee, Miller and Leonard, employes of the the company, testified that they had been struck by the same bridge, but each explained the circumstances causing their accidents, which show that these resulted from their own carelessness and inattention, and each testified that they were caused by their own neglect and want of caution. Now the question presented for our consideration, is, what are the rules of law applicable to the state of facts disclosed by the bills of exceptions, and which have been before stated. To entitle the appellee to maintain the suit, it was necessary to prove that the company had been guilty of negligence which directly caused the injury, that is to say, that in the relation which existed between the appellee and the company, the latter had failed or neglected to perform some duty towards the appellee, which was devolved upon it by the law; and secondly it must appear that the appellee was not guilty of any negligence on his part, or any want of reasonable prudence and caution to avoid the accident. 1st. As to the alleged negligence on the part of the company. In what did this consist? It was said it was negligent in constructing the bridge, so low that a conductor or brakeman could not pass under it in safety, on the top of a house car, where his duty required him sometimes to be. But there is no evidence to support this position, on the contrary all the proof shows that the employes of the company, and the appellee among them, every day passed — 68 — tinder the bridge safely by observing the simple and easy precaution of stooping or sitting down while passing under the bridge. No negligence can be imputed to the company because the struts of the bridge were not high enough to allow a person to pass under them, standing upright on the top of the cars. Baylor vs. Del. & W. R. R. Co., 11 Vroom, 23. It was not required of the appellee to stand on his feet, while passing the bridge ; he was in that position, according to his own statement, because his back was turned towards the bridge, “ he did not think of it, and did not know he was near itbut he knew it was there, it was in full view only a few moments before, when he started his train from a point only 200 or 300 yards distant. Nothing is better settled than that “ the implied contract between the employer and employe is that the latter takes upon himself all the natural risks and perils incident to the service.” Moran’s Case, 44 Md., 292 ; as expressed by Cockburn, C. J., in Clarke vs. Holmes, 7 H. & N., 943. “When a servant enters upon an employment, he accepts the service subject to the risks incidental to it.” The rule is well stated in Wharton on Negligence, sec. 214, “ An employe who contracts for the performance of hazardous duties, assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he had opportunity to ascertain.” Some stress has been laid by the appellee’s counsel, on the fact that when the appellee entered the service of the Company in 1867, and for some years afterwards, the cars in use were of such size and structure, that no danger whatever was incurred by standing on the top of them in passing under the bridge, and that afterwards higher cars were introduced, upon which a person could not with safety stand erect while passing under the bridge, and this change — 69 — is relied on, as an unwarrantable increase of risk and danger to the appellee, after lie had entered the service of the Company. Many cases have occurred, in which it has been held to be the duty of the employer to give notice or warning to the employe of increased risk or danger to which he may be exposed, where a change has been made in the nature of his duties, and a failure to give such notice or warning has been held to render the employer liable for the consequences ; but this principle has no application to the present case. It is applicable where the increased risk or danger to the employé arises from causes hidden and secret, and such as would reasonably escape his observation. In this case the introduction and use of the new house cars commenced as early as 1872, was well known to the appellee, and with that knowledge he continued in the service of the Company for the space of four years. So that in this respect, the case stands on the same ground as if the condition of things which existed at the time of the accident, was the same as when the appellee first entered the service. The bridge was during all this time, a permanent structure visible to the appellee, and the new cars were in daily use by him during that period. “ If a man chooses to accept the employment, or cordinm in it, with the knowledge of the danger, he must abide the consequences, so far as any claim against the employer is concerned.” Wooley vs. M. D. Railway Co., 2 L. R., (Ex. Div.,) 389. What then was the legal duty of the Company ? This is well stated in the appellee’s brief: “ It was the duty of the Company to exercise all reasonable care to provide and maintain safe, sound and suitable machinery, roadway structures and instrumentalities; and it must not expose its employes to risks beyond those which are inci — 70 — dent to the employment, and were in contemplation at the time of the contract of service; and the employe has a right to presume that the Company has discharged these duties.” This rule is supported by O’Connell’s Case, 20 Md., 212; Scally’s Case, 27 Md., 589 ; Wonder’s Case, 32 Md., 419. Let us apply it to the present case. As we have before said, the contract of service by the appellee was made, while the bridge of 1872 was standing, and the new cars were in use, or which is the same thing, he voluntarily continued in the service after that time, with a full opportunity of knowing the risk to which he was exposed. In constructing the bridge all that was incumbent on the Company, was to build it of sufficient height, to enable the employes, in the discharge of their duties, to pass under it in safety, by the use of ordinary care and prudence ; and there is no evidence in the case that this duty was not performed. In our opinion the ninth prayer of the appellant states correctly the duty and obligation resting upon the Company in the construction of the bridge, and as there was no evidence of any negligence on the part of the Company in this respect, the ninth prayer ought to have been granted, which denied to the appellee the right to recover; there being a failure of evidence to support a material part of his case. We think the evidence tended strongly to prove that the accident was caused by a want of reasonable care on the part of the appellee; hut we do not rest our decision on this ground. In the midst of his pre-occupation with his duties, he might he excusable for losing sight of the danger menacing him at the moment. But this peril was one incident to the employment, in contemplation at the time of the contract, and arising from causes open and obvious,, the dangerous character of which he had an opportunity to ascertain, and the risk of which he assumed. • Having stated our opinion upon the rules of law applicable to the case, which deny to the appellee the right to — 71 — recover, it is not necessary to notice particularly the several prayers contained in the record. (Decided 25th March, 1879.) The first prayer of the appellee submitted to the jury, in general terms, the question of reasonable care on the part of appellant, in constructing the bridge, with a view to the safety of its employes, and also whether the appellee had used ordinary and reasonable care, under the circumstances, to avoid the accident. Such an instruction would in some cases be correct, but as was said by Ellsworth, J., in Hayden vs. Smithville Manufacturing Co., 29 Conn., 557, when speaking of a general instruction of this kind, “ it ignores the clear distinc' tion between an employe having knowledge of the business and one having no knowledge.” “The employé here was acquainted with the hazards of the business in which he was engaged. * * * He must be held to have understood the ordinary hazards attending his employment, and therefore to have voluntarily taken upon himself the hazard, when he entered, or when with that knowledge he chose to continue in the service of the Company.” There being in this case no evidence of negligence on the part of the Company, it was error to submit that question to the jury. Judgment reversed.