State v. Malster

Alvey, J., delivered the opinion of the Court. This action was brought to recover for the death of Theodore Hamelin, alleged to have been caused by the negligence of the defendants. The defendants are bridge-builders, and were, at the time of the accident complained of, engaged in constructing what is known as the Calvert street bridge, over Jones’Palls, in the City of Baltimore. The bridge is a heavy iron structure, and, in putting it together, it required strong manual force as well as the use of mechanical appliances. The deceased was employed by the defendants as one of the laborers in the construction of this bridge at the time of his death. With the declaration was filed a statement of the particulars of the claim, and the grounds upon which it was made. In that statement, it it alleged that the accident was “ caused by the negligence of the defendants, in selecting one Dudrow, an unfit person for such appointment, to be a foreman in said work ; and in failing to provide sufficient appliances to secure the safety of their workmen ; and in the general control and management of the said work by themsélves; or by one or more of the causes aforesaid.” The case was tried upon the general issue, that the defendants did not commit the wrong alleged. And, under the instruction of the Court, the verdict was for the defendants. The evidence shows that the deceased was not an experienced bridge-builder, but that his vocation in life had — 303 — been that of a mariner. He was employed as an ordinary laborer, at ordinary wages, and had been at work on the bridge about two weeks previous to his death. He was at work under Curran, the foreman or superintendent of the work, who was an experienced and skilled bridge-builder; the defendants not being constantly at the work themselves, and not being there upon the occasion of the accident. There were two other men employed at the time on the work, named Dudrow, who were skilled workmen, and one of them, Parker Dudrow, was acting as leader or director of the gang of hands engaged in the particular work, in the doing of which the accident occurred; though, it appears, he had no special delegation of authority as foreman. In regard to these facts there is no controversy whatever ; they are proven mostly by the evidence adduced on the part of the plaintiff. The way in which the work was done, in the doing of which the accident occurred, as shown by the evidence, was this: The arches of the bridge were constructed of heavy iron segments, of about 3600 lbs. each, and these 'segments were placed in position in the arches by the use of a derrick. But in order to put them in position to he raised by the derrick, they had to he moved along a gangway, in the centre of the scaffolding or frame work of the bridge, on a roller or buggy, as it is called, and thence to the edge of the scaffolding on greased iron bars or rails, where the segments were to be raised and placed in the arch. There was no flooring on this scaffolding or frame work, hut loose planks were provided and used to make foot-ways for the men over the scaffolding, to enable them to work. It is shown that there were some eight thous- and feet of these planks provided and placed upon the scaffolding for this use; each plank being 16feet long, 12 inches wide, and 3 inches thick. When the segments were pushed to the end of the greased rails, they were then tilted or canted from the ends of the rails to put — 304 — them in position to he raised by the derrick: and this was done by manual force. In order to effect this move, a plank was placed in front of the segment upon which the men could stand while engaged in canting the segment. This plank should have rested flatly on the cross timbei’s ; but in canting the segment upon the occasion when the accident happened, it was allowed to rest upon the greased rails. In this particular instance, moreover, the plank used had been sawn short some four feet, and it was too short for the purpose, being only ten or twelve feet long. Some fourteen of the segments had been put in place, and the same mode of proceeding had been adopted in reference to them-all, except in the use of the short plank, and the allowing it to rest on the greased rails instead of the timbers. In placing the first two or three segments in position, Curran gave personal supervision, and directed, in those instances, the withdrawal of the greased rails after the first tilt therefrom of the segments, and that the plank be placed on the cross timbers. He gave no special direction, however, that this same precaution should be observed in all subsequent cases of placing the segments. In placing these first segments in position, Hamelin, the deceased, was present and co-operated as one of the laborers ; but afterwards, the hands were divided into two gangs, — the one being placed at the derrick, and the other assigned to the moving and handling the segments on the scaffolding; and Hamelin was placed with the gang at the derrick, under the immediate direction of Cur-ran. When the fifteenth segment was moved to the place where it was to be tilted or canted the second time, in order to be put in position to be moved by the derrick, call was made for assistance, and Hamelin was directed by Curran to go and give assistance in turning the segment ; and when he reached the scene of operation, the short plank had been placed in position in front of the segment, resting upon the greased rails, and the men had — 305 — taken their positions thereon, preparatory to a united effort to turn the segment into position. He took position also on the plank; and in the lateral pressure upon the plank in the effort to turn the segment, the plank slipped upon the rails, and several of the workmen were precipitated to the falls below, a distance of about forty feet, and among these was Hamelin, who came to his death thereby. With respect to these facts there is no conflict or dispute whatever ; and it is therefore clear that the immediate cause of the accident was the incautious use of the short plank on the greased rails, while making the effort to turn or cant the segment for the derrick, instead of a plank of proper length resting solidly on the timbers of the scaffolding or frame work of the bridge. Upon the whole evidence, the Court below was asked by the plaintiff to instruct the jury in accordance with ten prayers propounded; hut the Court refused them all, and, at the instance of the defendants, instructed the jury, 1st, That there was no evidence in the cause of any such negligence on the part of the defendants in discharge of their legal obligations to the deceased, as would entitle the plaintiff to recover under the proceedings ; 2nd, That, upon the undisputed evidence, it was apparent that the deceased directly contributed to the happening of the accident, by his own want of ordinary care and prudence; and, 3rd, That, upon the undisputed evidence, it was apparent that the accident was the direct result of the want of ordinary care and prudence on the part of the deceased and his fellow-workmen, in doing the work on which the accident occurred; and therefore the plaintiff could not recover. These propositions all resolve themselves into this, that there was no sufficient evidence of negligence on the part of the defendants, to afford the right of action against them, though there was plain and undisputed evidence of the want of ordinary care and prudence on the part of — 306 — the deceased, and his co-laborers. And in reviewing this, ruling of the Court helow, and determining whether it he correct or not, we must first make reference to the settled principles of law applicable to the case. All the cases, English and American, fully agree in-the general proposition, that where a servant engages to-perform certain service for compensation, it becomes an implied part of the contract, that he will take upon himself, as between himself and the employer, all the natural risks and perils incident to the work, whatever the nature-of that work may he; and if the nature of the work be hazardous, involving the necessity for great care and caution on the part of the servant for his own protection against injury, the presumption of law is, that he fully understood the nature of the work, and that his compensation was fixed with reference to the risks and perils of the service undertaken by him. And if, from the nature-of the service to be performed, the servant must or may be exposed to risk of injury from the negligence of other servants of the same employer, engaged in the same common employment, though it may be in different grades or departments of it, such risk is one of the natural perils-of the service which the servant takes upon himself, as between himself and the employer, and therefore, for any injury sustained from such cause, that is to say, the negligence of fellow-servants, he can have no right of action against the master. The servant, however, does not engage against the negligence or malfeasance of the master himself; and hence the master is bound to use due and reasonable diligence, having respect to the nature of the service, to provide the proper materials, appliances, and instrumentalities, for doing the work, and also to use due diligence and care in the selection and employment of competent and careful fellow-servants for the particular-work or service to be performed. Nor is the master justified in knowingly or negligently exposing the servant to307 any extraordinary or unreasonable peril in tbe course of the employment, against which the servant, from the want of knowledge, skill, or physical ability, could not, by the use of ordinary care and prudence, under the circumstances of the case, guard himself. For the violation of duty in these respects by the master, whereby injury is sustained by the servant, the master is justly liable. These principles are laid down in a great number of adjudged cases, and have been explicitly enunciated by this Court. Wonder’s Case, 32 Md., 411 ; Hanrathy’s Case, 46 Md., 280; Hutchinson vs. Railw. Co., 5 Exch., 343; Wigmore vs. Jay, Id., 354 ; Roberts vs. Smith, 2 H. & N., 213 ; Williams vs. Clough, 3 H. & N., 258; Hough vs. Railw. Co., 100 U. S., 213, 217; Whart. on Neg., secs. 209 to 217, and Cooley on Torts, pp. 543, 545, where the cases hare been carefully collected and the results of them stated. All the cases agree in holding that there is no obligation on the part of the master to give his own personal supervision to the execution of the work; but that he may delegate that power to a superintendent or foreman. And it is held by all the English cases, and by a decided preponderance of those of this country, that such superintendent or foreman is a fellow-servant within the rule, and that the omission or negligence of such superintendent or foreman is among the incidents of the service, and the risk of which the servant assumes upon himself, as between himself and the master, when he enters the employment. Consequently, for any injury to the servant, caused by the omission or neglect of the superintendent or foreman, the master is not liable to the servant, jjrovided the master has not been negligent or careless in the selection of such foreman or superintendent. It is said by Judge Cooley, in his work on Torts, in treating of the subject, at page 544, “that it cannot be disputed that the negligence of a servant of one grade is as much one of the risks of the business as the negligence — 308 — of a servant of any other; and it seems.impossible therefore to hold that the servant contracts. to run the risks of negligent acts or omissions on the part of one class of servants and not those of another class.” The cases in which it has. been held that the superintendent or manager is a fellow-servant within the rule which exonerates the master, are quite numerous, and it is not necessary that we should do more than give reference to some of them. Wonder’s Case, 32 Md., 411; Wigmore vs. Jay, 5 Exch., 354; Wiggett vs. Fox, 11 Exch., 832; Brown vs. Acrington Cotton Co., 3 H. & Colt, 513; Searle vs. Lindsay, 11 C. B. (N. S.,) 429; Lovegrove vs. Railw. Co., and Gallagher vs. Piper, 16 C. B. (N. S.,) 669; Murphy vs. Smith, 19 C. B. (N. S.,) 361; Feltham vs. England, L. R., 2 Q. B., 32; Howell vs. Steele Co., L. R., 10 Q. B., 62; Warner vs. Erie R. Co., 39 N. Y., 468; Malone vs. Hathaway, 64 N. Y., 5, Lawler vs. Railw. Co., 62 Me., 463; Blake vs. Railw. Co., 70 Me., 60. To the general rule, however, there is this qualification or exceptancé, that where the middle-man or superintendent is entrusted with the discharge of the duties incumbent upon the master, as between the latter and the servant, there the master may he liable for the omissions or neglect of the manager or superintendent in respect to those duties. If the master relinquishes all supervision of the work, and entrusts not only the supervision and direction of the work, hut the selection and employment of laborers, and the procuring of materials, machinery, and other instrumentalities necessary for the service, to the judgment and discretion of a manager or superintendent, in such case, the latter becomes a vice-principal, and for his omissions or negligence in the discharge of those duties, the principal will he liable. Murphy vs. Smith, 19 C. B. (N. S.,) 361; Malone vs. Hathaway, 64 N. Y., 5; Whart. on Neg. (1st Ed.,) sec. 229. As an example of this exception to or qualification of the gene — 309 — ral rule, we may refer to tlie case of Moran, 44 Md., 283, where the power to select and purchase a locomotive engine was delegated by the defendants to their general superintendent and their master of machinery, and for the negligence of those agents in the discharge of that duty, the defendants were held liable for the death of a fireman employed on the engine so purchased. Many other instances might he referred to if it were necessary. How, with these well established legal principles and distinctions in view, we may proceed to a more direct consideration of the case, with reference to the facts in proof. And, in the first place, it is important to hear in mind that the whole onus of proof is on the plaintiff. It is incumbent upon him to show affirmatively all the elements of the right to recover. Unless the Court can see that there is such evidence in the cause as will fairly support a verdict, if the juyy should find it to he credible and proper to he made the basis of their finding, it becomes an imperative duty of the Court to instruct the jury to find their verdict for the defendant. Conjecture or irrational speculation by the jury, as to conclusions of fact, should not be allowod ; and unless there be such proof as would justify a deduction of a rational conclusion as to the existence of the essential facts to entitle the plaintiff to recover, the instruction should he for the defendant. Otherwise there would he no certainty attained, and often the grossest injustice would he inflicted, in the trial by jury. In deciding the question whether there he any evidence legally sufficient to he submitted to the jury, or whether there be evidence from which a rational conclusion, of the fact or facts sought to be established may be deduced, the Court is not called upon to decide simply a question of fact; but the question of the legal sufficiency of the evidence is one of law, and of which the Court is the exclusive judge ; and the decision of which question, when raised, is preliminary to the right of the jury to — 310 — pass upon the sufficiency of the evidence in point of fact. This is a well settled principle in the trial by jury, and has been too often applied. by this Court to be an open question at this day. Cole vs. Hebb, 7 G. & J., 20, 29, 36, 40. The argument at bar, on the part of the plaintiff, was . mainly directed to show that there was evidence of the essential facts, legally sufficient to be submitted to the jury, and that the Court below was in error in directing.a verdict for the defendants. But, upon careful examination of the record, we fail to discover any legally sufficient proof upon which a verdict for the plaintiff could have been based. There is no sufficient evidence, indeed no evidence at all, of the want of ordinary care and diligence on the part of the defendants in the employment of the foreman or superintendent of the work, or of the other co-laborers with the deceased ; nor is there any evi7 dence whatever of the want of ordinary care and diligence .on their part in providing the materials with which to do the work. On tire contrary, all the proof, that on the part of the plaintiff as well as that on the part of the defendants, tends clearly to show that the foreman or superintendent having the direction of- the work, was a competent and skilful workman, and that there were two others, among those employed on the work, who were skilled as bridge-builders. And having employed a competent and skilful foreman to supervise and direct the work, there was certainly no obligation on the defendants to select other hands more skilled and careful than the deceased himself, for his protection. There is no question as to the sufficiency of the materials furnished for doing the work, or for the making sufficient scaffolding. But the question raised, and made most prominent by the prayers offered by the plaintiff, is, whether there was sufficient structure or scaffolding erected to protect the workmen against accidents while engaged in the work on — 311 — the bridge P And another question made is, whether the particular mode adopted for doing the act or piece of work, in the doing of which the accident occurred, was safe and proper in itself, and such as men of ordinary prudence and skill would adopt ? Both of these propositions may be considered together. There is no pretence that either of the defendants was present when the accident occurred, or that either of them .gave any special direction as to the manner of doing the particular piece of work in the course of which the accident happened. As has already been stated, there is no doubt or question of the fact, that the immediate and direct cause of the accident was the use of the short plank on the greased rails. The work of moving the segments and putting them in place was in its nature perilous, and required great caution on the part of those engaged in it. The peril, however, was open and obvious to the senses of «very one engaged in the work ; and while it is clear that there was great want of caution in the use of the plank on the greased rails when engaged in turning the segment, it by no means follows that the defendants are liable for the consequences of that want of care. Ample materials had been provided, and were at hand, with which a proper scaffolding or safe-guard could have been constructed ; and it was the duty of those engaged in doing the work to have so used the material for their protection. This precaution was neglected, but it was not the fault of the defendants; it was the neglect of thfe fellow-servants or co-laborers of the deceased, the risk of whose negligence the deceased assumed, as between himself and the defendants, when he entered the employment. "No better illustrations of this could ho required than the two closely analogous cases of Wigmore vs. Jay, 5 Exch., 352; and Gallagher vs. Piper, 16 C. B., (N. S.,) 669, before referred to, in both of which cases it was held that because there was no sufficient evidence of personal — 312 — negligence on the part of the defendants, therefore they were not liable for the accidents that occurred.. But, according to all the testimony, and the undisputed facts of the case, the deceased directly contributed to his. misfortune' by his own want of caution for his safety. The danger was open before him, and he was required to-use his senses and to exercise his judgment for his protection. He could not fail to see that there was but a single plank upon which the men could stand, and that the plank rested upon the greased iron rails. He saw, and knew of course, that there was no scaffolding under him, and that if the plank should slip there was danger of falling to the ground below. He had, moreover, full knowledge of the modus operaiidi of the moving and putting the segments into place, as he had aided iu moving and placing the segments previously adjusted in the arch, when but a single plank was used for the men to stand on while turning the segments to be raised by the-derrick. Now, with this knowledge, and this plainly apparent risk open to the senses of the deceased, upon what principle can the defendants be made liable for the accident that happened to the deceased in consequence of the risk thus knowingly assumed by him ? The principle is perfectly well settled, that 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 an opportunity to ascertain. And so if a man chooses to accept an employment, or continue in it, with the knowledge of the danger, he must abide the consequences, so far as any, claim against the employer is concerned. These propositions are well settled upon authority, and have been expressly approved by this Court, in the case of the Rail. R. Co. vs. Stricker, 51 Md., 47; See Whart on Neg., sec. 214; Woodley vs. Railw. Co., L. R., 2 Ex. Div., 389, — 313 — cited with approval in Strieker’s Case. The party knowing the danger and having assumed the risk, the defendants cannot he made liable for not having adopted precautionary measures for his protection. In the case of Sullivan vs. India Manf. Co., 113 Mass. 396, where a party was injured by being caught in the gearing of a machine near which he was employed, and where the danger was open and apparent, upon a motion for a new trial, after a verdict for the defendant, the Court, in support of the verdict, stated the law applicable to the case thus: “When the employe assents to occupy the place prepared for him, and to incur the dangers to which he will he exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a (question whether such a place might, with reasonable care, and by reasonable expense, have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, he has no ground of complaint, oven if reasonable precautions have been neglected.” And in the case of Sullivan’s Adm’r vs. Louisville Bridge Co., 9 Bush., 81, after a very full examination of the authorities, the same principle was applied in a very much stronger case for the plaintiff than the present. There the plaintiff’s intestate fell from a narrow plank erected over the Ohio River where he and others were engaged in passing stones for the filling a crib used in the construction of a bridge over that river. It appeared that he and others had hesitated before the accident about going on the plank, but being told to do so or go borne, he did go on the plank as he was directed, and he fell into the river and was drowned. The Court refused to set aside the verdict for tiro defendant, upon the ground that the deceased had knowingly taken upon himself the risk of doing the work. — 314 — (Decided 15th November, 1881.) Upon the whole record, we discover nothing that would justify this' Court in reversing the rulings of the Court below. There being a legal insufficiency of evidence to be submitted to the jury, the Court properly directed the verdict to be rendered for the defendants. The judgment must, therefore, be affirmed. As, however, there has been a large amount of matter incorporated in the record unnecessarily, in disregard of the 5th rule regulating appeals, and this by agreement, resulting from a disagreement as to the proper preparation of the bill of exception, vve think it right that each party should bear one-half of the cost of printing the transcript of the record in this Court; and we so order. Judgment affirmed. Robinson and Magruder, J., dissented.