Pikesville, Reisterstown & Emory Grove Railroad v. State

Page, J., delivered the opinion of the Court. This suit was brought by the appellee, for the use of the father and mother of Frederick L. Russell, whose death it is alleged was caused by the negligence of the appellant. Russell entered the service of the appellant on the 18th day of May as conductor on one of its cars, and on the same day, while attending to his duties, was killed by being struck by one of the poles that supported the overhead wires. The route of the car to which the deceased had been assigned was from OwingsMills to Emory Grove. Russell had already made two trips before the accident happened. The structure of the appellant consists of a roadway with a single track alongside of which the poles are stationed. The car was an open summer car, with seats running entirely across, and a foot-board on each side used as a step for persons entering the car and as a means for the conductor to pass from one end to the other. The foot-board projects fifteen inches beyond the rail. The pole which struck the deceased was number 300, located two feet and one inch from the track. The distance of other poles from the track as measured was: No. 301, 2 feet 8 inches; No. 302, 2 feet 7J4 inches; No. 303, 2 feet 9 inches; No. 299, 2 feet 4inches; and No. 298, 2 feet 8 inches. From the place of the accident the road is straight each way for three hundred and fifty feet, and there are no obstructions, natural or other, to prevent pole No. 300 from being placed further from the track and in line with the other poles. When the car reached [570] the Hannah More Academy the motorman nodded his head to the conductor that they had come to the place where he could begin to take up fares — there were several such points and the motorman had been instructed to tell Russell, who was a new man, where those points were. Russell was to take up the fares anywhere before reaching the next section. When Russell caught the motorman’s nod, he stepped on the foot-board from the rear platform, on the side next to the poles, swung himself along the side of the car, holding to the handles, until he came opposite to a bench whereon were seated Mr. and Mrs. Logsden, two of the passengers, who had boarded the car near Hannah More Academy. Mrs. Logsden was seated about midway the bench and was nearer to the side where the deceased was than her husband. When he came opposite this bench he stopped, turned towards them, and slightly inclining his body into the car, reached forward his hand for the fares. It was then that he was struck by pole No. 300; his head was driven violently against the handle of the car, and he received a fatal injury. There was evidence tending to prove that if pole No. 300 had been the same distance from the track that the others were he would have escaped injury, and that the proximity of that pole rendered it unsafe to collect fares on that side -of the car, and that the roadway on the other side at that point and for some distance was encumbered with fences, trees and a telephone pole, so as to make it unsafe to collect fares from that foot-board. There wras ■evidence on the part of the defendant tending to prove this was not correct, that there were no serious obstructions, that it was dangerous all along the road to collect fares on the pole-side, that the witness, Tracy, saw the danger from pole No. 300 before it was reached and tried to warn the conductor, and there was nothing to prevent Russell from seeing it also. No instructions were given the conductor except such as he received from the motorman as to the places where the fares were to be collected. Russell was a steady man, but unused to the trolley in the country, having had experi [571] ence only as a conductor on a cable car in the city. A little while before the accident the motorman had said .to him, “ you are a good, steady man and you had best be careful, if one of these poles catches you, it will fix you ”; and Russell had replied, “ he hoped not.” Russell was a “ stoutish built man, full stomach, weighing about one hundred and seventy pounds.” At the time of the accident, the “ car was going nearly as fast as possible.” Three exceptions were taken at the trial, but the two first were not insisted upon at the argument. The third and fourth exceptions bring into question the action of the Court upon the prayers offered by the respective parties, in granting the plaintiffs’ ist and 5th, and rejecting the 2d, 3d, 4th, 5th, 6th, 9th, 10th, 13th, 14th, and 15th of the defendant and also the defendant’s offered at the conclusion of the plaintiffs’ evidence. There can be but little doubt about the general principles applicable to cases of this kind. When a servant agrees to occupy the place prepared for him by the master, he assumes all the usual risks of the service, and also of all those perils that are known to him, or ought to be known to him by the exercise of ordinary watchfulness. On the other hand, it is the duty of the master to exercise all reasonable care to provide and maintain safe, sound and suitable machinery, roadway, structures and intrumentalities; and he must not expose his employees to risks beyond those which are incident to the employment, and were in contemplation at the time of the contract of service; and the servant or employee has a right to presume that the master has discharged these duties. Stricker’s case, 51 Md. 47; Baker’s case, 84 Md. 21; 3 Elliott on Railways, secs. 1288 to 1291 and authorities cited. Russell therefore in accepting the employment of the appellant as conductor took upon himself all such risks as were usually incident to the service, and also such other risks as were known to him, or were discernible by ordinary care on his part. He was obliged to observe and guard himself against danger from the poles as properly or apparently located; but [572] one or more of them had been negligently and improperly placed, so that the usual risk of the service was increased; and if such misplacement was not apparent to him with the exercise of reasonable care, and was not in fact known to him, he was under no obligation to protect himself against such increased risk. In such case the increased danger would be hidden and secret, and no rule of law demands that one shall look out for what he has no reason to anticipate. Gels’ case, 31 Md. 366; Lewis’ case, 38 Md. 600. Now there was evidence going to show that poles such as these are usually placed in line and that the poles along this road apparently were so placed, and the apparent distance was about two feet eight inches from the track. One of the poles, No. 300, was seven inches closer, and for the increased risk consequent therefrom the deceased was not bound to look out, unless he knew of the location of the pole, or ought reasonably to have known it, or unless it was obvious. It was contended that Russell, as matter of law, was guilty of contributory negligence in attempting to collect fares on the side next to the poles. Plis duty was to collect fares, and he was not directed on which side of the car he was to do it. He was a new man and knew of no rules on the subject and was not informed there were any. If therefore he chose to collect the fares on the pole-side, for any reason, his obligations as to taking care of himself were not thereby enhanced. He was bound in any case to look out for the poles as they ought to have been and apparently were located, but the use of the pole-side of the car did not impose upon him the duty of knowing what he did not and could not reasonably know. If he did not know of the misplaced pole and the increased risk growing out of its misplacement, there was no reason why he should not collect fares on the pole side, so long as he was careful to protect himself from all the apparent danger he incurred in so doing. The evidence touching the several matters of fact that we have adverted to, is in some particulars con [573] flicting. There was evidence that pole 300 was within the danger line; that fares could be collected safely except as to the special pole; and that the road was so obstructed on the other side of the car as to make it unsafe to collect from that side. On the other hand, the appellant-offered evidence contradicting these matters and tending to show that the situation of the pole was obvious and that the deceased should have observed it. In all such cases, the question of the negligence of the parties should be submitted to the jury for them to determine from all the facts offered in evidence whether either or both of the parties had been guilty of negligence in consequence of which the accident happened. Maugans’ case, 61 Md. 60. {Decided December 20th, 1898.) The first prayer of the plaintiff instructed the jury substantially that if they found that pole 300 was in an unsafe position and that the deceased was killed in consequence thereof, and that he was ignorant of its dangerous position and could not have known it by the use of ordinary care and caution on his part, and that at the time of the injury the deceased was using due and ordinary care and caution, they must bring in their verdict for the plaintiff. This prayer properly presented the case to the jury, and the Court committed no error in granting it. It would be profitless for us to examine in detail all the rejected prayers of the defendant. What has been said already is applicable to them all, except to those that go to the question of damages. As to them, we are of opinion the principles laid down in Mahone’s case, 63 Md. 146, are applicable and are so fully stated there as not to require any additional remarks from us here. The judgment must therefore be affirmed. Judgment affirmed.