Wood v. Heiges

Page, J., delivered the opinion of the Court. This action was brought by the appellee to recover damages for injuries sustained in the works of the Maryland Steel Company, while engaged in the service of the receiver of that concern. He entered upon his employment about the thirteenth day of January, eighteen hundred and ninety-four, as a moulder and general laborer. On the 29th of March following he was ordered by his foreman to clean certain castings on a car-truck, used for transferring material from place to place in the foundry. It was then located from twenty-five to thirty feet distant from an appliance then being used by other workmen in breaking up defective castings. This appliance consisted of an arrangement by which an heavy iron ball, weighing seventeen or eighteen hundred pounds, could be hoisted to the roof of the building and dropped upon the castings beneath. From a drum (revolved by a crab-engine), a rope passed through a pulley fixed in — 266 — the comb of the roof. The ball was attached to the end of this rope, and when at the proper height it was dropped by means of a smaller rope, connecting with a device for tripping the fastening that sustained it. The castings to be broken were sometimes very large, measuring eight feet in height and weighing seven or eight tons. On the day of the accident, the castings rested on pieces of “ core-bars,” placed on the floor, for sake of greater solidity. When it was proposed to strike the casting at a particular point the ball would be swung a little, and while still swinging, it would be dropped, so as to fall upon the desired spot. The effect of the impact of the heavy ball upon the casting was to break it; and (to use the language of the witness, McAfee) to cause the pieces to “jump up * * in a circle around the drop of about ten feet, and of course that was sacred ground.” None of the witnesses, however, had ever seen the fragments fly so far as the place where the appellee was standing when injured. This particular drop had been in operation about two weeks. Before its erection the method of breaking castings was the same, except that instead of a fixed hook in the comb of the roof, a travelling crane was used to hoist the ball. Workmen engaged near the drop were always notified when the ball was about to be dropped by the stoppage of the engine, and by the warning voice of Mc-Afee, who always before he pulled the rope, cried in a loud voice, “heads up” or “lookout.” These warnings were 'given to the appellee, and if he heard them he had time to move to a safer distance had he desired to do so. The appellee’s account of the accident is that while he was at work on the casting, 25, 30 or 40 feet from the drop, “ he heard a voice, and raised up from a stooping position, and saw a small piece of iron fly up from where they were breaking iron ; * * after a time he heard a voice again and raised up again, and as he raised a man pulled the drop, and a piece of iron flew towards him he tried to get away but could not; a cylinder head was on his right, a car-truck in front, and behind him, six-or eight feet, an hydraulic plunger: He — 267 — never thought of danger. He had worked in the foundry “ most of the time ” from January until then ; he had never seen a piece of iron fly so far before. He had seen the drop worked before, and when it was first put in, he in common with everyone else, had looked to see what impression it would make on the ingot mould about to be broken. Much testimony from other witnesses was offered to explain the machinery of the drop, the effect upon the castings, and also the details of the accident. There was also proof to the effect that iron was broken upon the same principle in foundries at Chambersburg and Westminster and other places ; and there was a description of a breaking machine with a battery about it for the protection of workmen, used in a steel works in Pennsylvania. Upon this evidence the Court submitted it to the jury to determine whether the injury was caused, without fault of the plaintiff, by the unsafe and dangerous condition of the machinery and appliances, which was, or by the use of due diligence could have been, known to the defendants; and if they so found, instructed them to bring in their verdict for the plaintiff. The defendant excepted specially to this instruction, because there was no evidence of the unsafe, dangerous or defective character or condition of the machinery. It was not contended either in this Court or below that the drop machine was not in perfect condition, or that it was not operated by a thoroughly skillful workman. But it was insisted that the machine was dangerous and unsafe, and that the appellant should have provided additional protection to those whose duty it became to work in its vicinity. The liabilities of the master to his employee have been considered by this Court in too many cases to require here more than a statement of the general principles applicable to the subject. When a servant engages to perform certain services for a compensation, it is implied as a part of the contract, that, as between himself and his employer, he assumes all the risks incident to the service. And these risks include such as arise, from the hazardous character .of — 268 — the service, and from the negligence of other servants in the same employment, even though they may be in a different grade. But the master himself is bound to use ordinary (that is due and reasonable) care and diligence to provide proper materials and appliances to do the work, and in the selection and employment of competent and careful fellow servants. In addition to this, 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. State use Hamelin v. Malster & Reany, 57 Md. 307. Yet, while the master is thus bound to protect his employees, there is no contract obligation imposed upon him to provide machinery of any particular description ; his obligation extends" no further than to require him to use that care which ordinary prudence and the exigencies of the situation demand in providing the servant with machinery or other instrumentalities safe for use by him. Hough v. Texas & P. R. R. Co., 10 Otto, 213. If a servant has knowledge of the circumstances under which the employer carries on his business and chooses to accept the employment,. or 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. State use Hamelin v. Malster & Reany, supra ; Wonder's case, 32 Md. 416; Stricker’s case, 51 Md. 47 ; B. & P. R. R. v. State, 75 Md. 161. Where, however, the risks to which the servant is subjected are such, as. he had no reason to believe, from the nature of his employment, he would have to encounter, and such risks arise from causes hidden or secret, or such as would reasonably escape his observation, the master is bound to notify his servant, provided he himself — 269 — knew or by the exercise of ordinary care ought to have known of them. Saxton v. Hawksworth, 26 L. T. N. S. 351; U P. R. R. Co. v. Fort, 84 U. S. 213 ; Sjogren v. Hall, 53 Mich. 274; Clark v. Railroad Co., 28 Minn. 128; Shipbuilding Works v. Nuttal, 119 Pa. St. 149. The master is, therefore, not an insurer of the servant’s safety. He cannot be bound for his servant’s injury, without being chargeable with some neglect of duty, measured by the standard of ordinary care. On the other hand, the servant is under an obligation to provide for his own safety when danger is either known to him or discoverable by the exercise of ordinary care. “ He must take ordinary care to learn the dangers which are likely to beset him ; ” (Beach on Contrib. Neg., sec. 138), and where the servant is as well acquainted as the master with the dangerous nature of the instrument used he cannot recover. Beach on Contrib. Neg., sec. 140 ; Wheeler v. Mason Man. Co., 135 Mass. 298. In the case at bar the appliance used for the breaking of castings was in perfect condition and operated by a competent and skillful person. It was constructed on the plan adopted and used in other foundries. In all their experience in operating it, none of the witnesses had ever seen pieces fly so far before. Heiges had seen the breaking of castings with the crane, for more than two months. He had witnessed the construction of the “drop,” had watched the ball hoisted to the roof, and had observed what impression was made on the ingot to be broken. For two weeks he had been a daily witness of the process, and presumably being a person oí average intelligence, must have known, as well as any one, the risks and dangers attending its use. He did not know that pieces of iron would fly twenty-five feet, nor did any one. He received two warnings that the ball was about to drop—once, when the engine stopped, and again when McAfee cried out “ heads up.” blither warning was in time to enable him to retreat to a greater distance, and though the cylinder-head was on his right, the car-truck in front and an hydraulic plunger six or eight — 270 — feet behind him, the proof establishes the fact, there was a clear way still open to him. Now, despite his knowledge /of the machine, its effect upon the castings, and his double warning, either through inattention, or carelessness, or a feeling of security, he merely raised himself up. Then the unexpected happened ; he saw the iron flying towards him ; it was too late to avert the danger, and he was injured. With our view of the law, as stated, we can perceive here no evidence of neglect on the part of the receiver. He employed “ due- and reasonable dilligence, having respect to the nature of service, to provide proper materials, appliances and instrumentalities for doing the work,” and to select competent and skillful persons to manage them. But apart from this, we are of opinion there is another ground upon which the plaintiff is not entitled to recover. He accepted employment to work in the foundry, with a full knowledge of all the.circumstances under which the business was conducted, and continued in it after the “ drop ” was put up. His duty was that of a moulder, chipper of castings and general laborer. Such duty required him to work in all parts of the foundry. On the particular occasion, when he was injured, he accepted the position assigned him to discharge an ordinary duty, within the scope of his employment, with a full knowledge of all its surroundings and dangers, without remonstrance ; and having done so, “ he must abide the consequences, so far as any claim against the employer is concerned.” Malster's case, supra; B. & O. R. R. Co. v. Stricker, 51 Md. 47. From what we have said it follows that there was error in granting the second and third prayers of the plaintiff, and in rejecting the defendant’s third, fifth, seventh and eighth prayers. By the granting of his ninth prayer the defendant received the substantial benefit of the principle embodied in his fourth. There was no error in the first exception. The narr. by the second count charged that the accident was due to “ gross negligence in the working of the machinery,” &c. — 271 — McAfee was the operator of the machine. His competency thus became involved in the issues of the case. He had just stated he had broken scrap on an electric crane. The question was, therefore, calculated to elicit testimony which would show what had been his experience; from which, in connection with other evidence, the jury could form some opinion as to his competency to operate the drop. (Decided March 26th, 1896.) The question and answers contained in the 2nd, 4th, 5th, 6th, 7th and 8th exceptions were properly allowed. Whether the machine was safe or not was a matter requiring special skill, knowledge and experience, and McAfee had already been shown to be one whose experience had made him familiar with the matter. President, &c., v. Leonhardt, 66 Md. 77 and 78. The interrogatories excepted to in the third and ninth exceptions, we think, were improperly allowed. It has already been said that the master is not obliged to provide machinery similar to that used in other establishments, though that may be less dangerous. The issue was whether the particular machinery was proper and suitable; and that was to be determined by its actual condition, and not by comparing it with other machines. Crowther's case, 63 Md. 569. Jtidgmeut reversed without a nezv trial.