B. O.R.R. Co. v. Branson , 128 Md. 678 ( 1916 )

The appellee on this record recovered a judgment in the Circuit Court for Allegany County against the Baltimore Ohio Railroad Company, a corporation engaged in interstate and intrastate commerce, for personal injuries alleged to have been sustained by him as the result of the negligence of the defendant. The appeal before us was taken by the Railroad Company from that judgment. The suit was brought under the provisions of the Federal Employers' Liability Act, approved April 22d 1908. The first section of that act provides:

"That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents, and if none, then to the next of kin dependent upon such employee for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

The plaintiff was in the employ of the defendant company at various times from the year 1899, and in the fall of 1912 was employed in its round house at Cumberland as a painter. At that time the defendant furnished him for use in his work a spraying appliance called by the witnesses a "paint gun." This paint gun consisted of a tin can which held about a gallon of paint and by means of certain appliances attached to the can the paint was sprayed upon the cars and engines. This was applied by means of air pressure, and in the operation of the machine it scattered paint around and upon the operator, and enveloped him in a mist or fog created by this spray, which he was obliged to breathe while using the instrument. One of the paint guns was exhibited to the jury during the trial and its construction and operation fully explained to them. The declaration alleged:

"That at the time of the injuries complained of, and for a period of about eleven months prior thereto, the plaintiff under the direction of the defendant railroad company, its officers, agents, servants and employees, has been operating and using a certain painting machine commonly called a ``gun,' said painting machine being operated by air pressure of one hundred pounds, which said painting machine was used for the purpose of painting by means of a spray the engines and cars of the defendant company, used in the hauling of commodities and commerce between the States of the United States as aforesaid, and for that said painting machine by reason of the strong air pressure by which it was operated, threw off, scattered and disseminated into the air, which the operator thereof was obliged to breath, the material used in the said painting machine, which material was highly poisonous, deleterious and harmful to anyone breathing the same, which fact was to the plaintiff unknown; and for that the said defendant railroad company allowed, authorized and directed the plaintiff to use and operate the said painting machine, without any appliance or means of protecting him from the poisonous, deleterious and harmful spray thrown out and disseminated into the air as aforesaid, which poisonous, deleterious and harmful painting material thrown out and disseminated into the air by the spray (the fact that said spray was poisonous, deleterious and harmful being unknown to the plaintiff, although the fact that said spray was poisonous, deleterious and harmful was known to the defendant railroad company, or should have been known to it) the plaintiff breathed and inhaled and took into his system for a long period of time, to wit, for a period of about eleven months, to wit, from October, 1912, to September, 1913, so that the plaintiff, on or about the 6th day of September, 1913, became sick, poisoned and incapacitated for any kind of work by reason of inhaling and breathing into his system the said poisonous material thrown out from said painting machine as aforesaid, by reason of which sickness, poisoning and incapacitation for work the plaintiff has been caused great physical pain and mental suffering, and by which he has been permanently injured and totally incapacitated for life.

"The plaintiff further avers that the said injuries resulted in whole or in part from the negligence of the officers, agents, servants and employees of the aforesaid defendant railroad company, thereby violating certain provisions of the law and statutes of the United States for such cases as made and provided."

The defendant demurred to the declaration, and this demurrer, which was overruled by the trial Court, raised the most important question in the case, and as to which we have no precedent to guide us. It is this: Does the Federal Employers' Liability Act embrace such an injury as that sued for in this case? This involves a question of construction of the act. It is contended for the defendant, that the words "suffering injury," occurring in the act, must be given a restricted meaning and confined to injuries which are attended with force or violence. This contention, if sound, would limit the scope and effect of the Act, and withdraw from its operation many recognized causes of action which injured persons may have against railroads engaged in interstate commerce. It is argued that to hold the defendant liable for such an act would multiply litigation and subject interstate carriers by rail to liability never contemplated by Congress. But we are not much impressed by the argument as to apprehended hardships and multiplied litigation which it is contended would result if an action of this character can be maintained. The declaration clearly states a cause of action under the principles of the common law. State, use of Hamlin, v. Malster, 57 Md. 287; Dettering v. Levy, 114 Md. 273;Yates v. McCullough Iron Co., 69 Md. 370; Security Cement Lime Co. v. Bowers, 124 Md. 11.

And, if it should be held that such a suit can not be sustained under the Act, the effect would be merely to remit the plaintiff to his common law action. But this would subject him to the defenses of contributory negligence and the assumption of the negligence of fellow servants. These harsh defenses have never been very potential in the prevention of suits for personal injuries.

The appalling toll of human life — the great army of the lame, the halt, and the blind, — the privations and sufferings of widows and dependent children are the by-products of our mighty and efficient industrial and transportation system, and thoughtful and humane men have long since recognized that the old law of employers' liability was not only unsuited to our changed condition, but in the method of its operation resulted in many cases in great injustice to the injured workman, and great harm both to the State and to the parties immediately concerned. It was to remedy, in a large measure, this evil condition in the field of interstate transportation by railroads that this Act was passed. The Act is a remedial one, and, like all remedial legislation, should have a liberal construction to advance the remedy proposed and to correct the evils against which it was directed. It was designed to enlarge — not to restrict — the rights of the injured workman. Its provisions have a strong tendency to secure greater precautions on the part of the employer for the safety of the workmen. It tends to the prevention of unnecessary accidents, and thus lessen litigation. It eliminates much of the uncertainty attending recovery under the common law rules. In respect to injuries to employees while engaged in interstate commerce the act takes from the employer those defenses which can no longer in reason, justice and humanity be maintained. It abolished the fellow servant rule, and made the employer liable for the negligence of its agents to the employee as well as to strangers. It abolished contributory negligence as a defense, and required the jury in cases where both parties were negligent to adjust the damages. In MichiganC.R. Co. v. Vreeland, 227 U.S. 59, the Court said, that the act "was intended to cover the subject of the liability of railroad companies to their injured workmen while engaged in interstate commerce." The language of the Act is broad enough to include the injury sued for. That is conceded, and the considerations to which we have referred show that it is within the reason and spirit of the Act, and that the apprehension of increased litigation and hardship would not seem to be well founded.

Mr. Richey, in his work entitled "Federal Employers' LiabilityAct," at page 36, states that: "It was doubtless the purpose of Congress to comprehend within its provisions the whole subject of the relations of common carriers by rail and their employees engaged in interstate commerce, and it is held that it must be construed as including within the terms "every common carrier by railroad," and "person employed in such commerce," every carrier and every person whom Congress could constitutionally include. Hence, if the conditions above stated concur, namely, that the injury was sustained while the carrier was engaging in interstate commerce, and to an employee of such carrier while he was also engaged therein, the fact that the carrier and the employee were also engaged at the same time in intrastate commerce, using perhaps the same means and agencies for both, is immaterial. And since the same man may have duties including both interstate and intrastate commerce, it follows that the act will not necessarily apply to the same person in all the details of his employment, but that he will be subject to the act while engaged in the one and not in the other. Whether in such case a cause of action arises under the act depends upon the circumstances existing at the time of the injury. If at the time of the injury, the employee was performing some service for the company in furtherance of its interstate commerce the rules of law declared in the Act of 1908, and its amendment, will apply. Upon the other hand, if the employee, when injured, is engaged wholly in the performance of a service in furtherance of the intrastate business of the railroad company, then the act of Congress does not apply, because to give it application in such case would be extending the power of the Federal Government over matters exclusively within the state jurisdiction and control." And the author cites many cases in support of the test. JUDGE STOCKBRIDGE, in B. O.R.R. Co. v. Whitacre, 124 Md. 411, speaking of the applicability of the Act to the facts of that case, said: "It is difficult to reconcile the various decisions, even to reconcile those of the same Court. A few propositions, however, are clear. These are, that the Act was intended to apply only in certain cases, thus recognizing that there was a class of cases which might arise between a common carrier by railroad and its employees, in which the Act has no applicability. This was distinctly recognized in the case of theIllinois Central R.R. Co. v. Behrens, 233 U.S. 473, in an opinion by JUSTICE VAN DE VANTER, and is further emphasized by section 1 of the Act: ``This clause has two branches; the one covering the negligence of the officers, agents or employees of the carrier * * *, and the other relating to the defects and insufficiencies in the cars, engines, appliances, etc.' But plainly with respect to the latter, as well as the former ground of liability, it was the intention of Congress to base the action on negligence only, and to exclude responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence * * *. To hold that under the statute the railroad company's liability for the injury or death of an employee resulting from any defects or insufficiencies of its cars, engines, appliances, etc., however caused, is to take from the Act the words ``due to its negligence.' The plain effect of these words is to condition the liability upon negligence.' And in any given case the measure of the responsibility of the carrier is that of ordinary care. Seaboard Air Line v. Horton,233 U.S. 501."

The declaration states a case in which an employee of an interstate common carrier by rail suffered an injury as the result of the negligence of his employer, and we see no reason upon grounds of public policy or otherwise, why the suit should not be maintained, if the plaintiff was at the time engaged in interstate commerce work.

Was he so engaged at the time he suffered the injury? The declaration alleged that the plaintiff was engaged in the painting of cars and engines of the defendant company used by it in the transporting of commodities and commerce through and between the States, and that at the time of the injuries complained of and for a period of eleven months prior thereto he had been using the paint gun in painting the engines and cars of the defendant used in interstate transportation, and that while so engaged he suffered the injuries complained of as a result of the negligent omission of duty stated in the declaration. Engines and cars are necessary instrumentalities in the business of interstate commerce, and it is the duty of the carrier to keep them in safe condition and proper repair. Without paint the engines would corrode and the woodwork of the cars decay. The work of painting the engines and cars would seem to have a reasonable and substantial relation to interstate commerce. It was said in Pederson v. Delaware L. W.R. Co.,229 U.S. 146, that: "Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reason unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depend in a large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ``any defects or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce." For the reasons stated we are of opinion that the demurrer to the declaration was properly overruled.

The case went to trial upon issue joined upon two pleas filed by the defendant: First, the general issue plea, andsecondly, a plea that the alleged cause of action and the injuries complained of did not accrue within two years before the suit. During the trial the defendant reserved sixteen exceptions — fifteen relate to questions of evidence, and the other to the action of the Court on the prayers submitted at the conclusion of all the testimony.

Before examining the prayers it must be noted that by the sixth section of the Act it is provided that no action shall be maintained under it "unless commenced within two years from the day the cause of action accrued," and that the Court expressly told the jury that in order for the plaintiff to recover "he must prove by a preponderance of the evidence that he suffered the injury of which he complains within two years before the 25th of June, 1915, the day when this suit was brought." It must further be borne in mind that the refusal of the Court to strike out evidence does not constitute reversible error where the same evidence has been previously or subsequently admitted without objection. B. O.R.R. Co. v. Chambers, 81 Md. 371;Leffler v. Allard, 18 Md. 545.

The first and second exceptions were taken to the refusal of the Court to strike out the testimony of the plaintiff that he began using the spray in the fall of 1912, and that he used it from the time it was first brought to the Cumberland yards until the sixth of September, 1913. This ruling can not be held to be reversible error; first, because the witness had previously stated without objection that he began using the machine in the fall of 1912; secondly, the same fact was proven by the defendant; and thirdly, this evidence is the basis of the defendant's whole contention that the suit is barred by limitations. The third, fourth and fifth exceptions may be considered together. The plaintiff testified that his health was "extra good" until September 6, 1913, when he was taken sick, and the purpose of the testimony embraced in these exceptions was to show his condition of health after that date. It tended to support the allegation of the narr. and was properly admitted. The evidence embraced in the sixth exception tended to show that the plaintiff did not know before he was taken sick that there was an appliance to protect a person using the gun. In a case like this where assumption of risk is a defence, and where contributory negligence may be used in reduction of damages, it would appear that such evidence was admissible. In SecurityCement and Lime Co., supra, JUDGE BOYD said: "The general rules of law applicable to master and servant are now too well settled to require the citation of many authorities, but it may not be amiss to recall some of the rules we have announced. In Bernheimer Bros. v. Bager, 108 Md. 551, we said: ``It is a fundamental rule that the master must exercise ordinary and reasonable care to avoid unnecessary injuries to his servant in the course of his employment. While he is permitted to delegate to others certain duties there are some which he can not relieve himself of, or avoid the responsibility for, if there be a failure to discharge them to the injury of the servant. One that is required of him, in this, as well as in other jurisdictions, is providing and maintaining safe machinery and appliances and a reasonably safe place for the work undertaken by the servant. Necessarily there are some exceptions to these as well as to most general rules.' In that case we quoted with approval as we had previously done what was said by the Supreme Court in B. O.R.R. Co. v. Baugh, 149 U.S. 368: ``A master employing a servant impliedly engages with him that the places in which he is to work, and tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and machinery, and when he employs one to enter his service he impliedly says to him that there is no other danger in the place, the tools and the machinery, then such as is obvious and necessary.' We gave as illustrations of the exceptions above referred to, when a place is out of repair and dangerous and the employee undertakes to make it safe, and when he accepts an employment or continues in it, with knowledge of the danger, the employee can not ordinarily hold his employer liable." InDettering v. Levy, 114 Md. 273, we said: "In Yates v.McCullough Iron Co., 69 Md. 370, this Court, after speaking of the risks which the servant assumes, said: ``It may be assumed that this rule applies only to patent or obvious defects, such as persons of ordinary care would be likely to discover, and that the servant is not bound to inspect the appliances to see whether or not there are latent defects that render their use more than ordinarily dangerous, but is only required to ascertain such defects or hazards as are obvious to the senses, 2 Wood's Master and Servant (2nd Ed.), sec. 376. Hence in cases where knowledge of the defects does not necessarily carry with it knowledge of the resulting danger, it may be proper for the Court to instruct the jury as requested in the plaintiff's second prayer.' That prayer asked the Court to instruct the jury that if they found that the machinery in question was, owing to some defect in it or in the building in which it was placed, unsafe and dangerous, by reason of the negligence of the defendant, ``Then in order to establish that the plaintiff assumed the risks involved in using it, it is not sufficient to show that the machinery, was defective, and that such defect was known to the plaintiff, but it must appear that the danger was known to him as well as the defect which caused the danger, or that by reasonable care on his part it would have been known to him.'" The seventh exception was to permitting the plaintiff to testify that he had six children. This fact was subsequently proved during the examination of Doctor Hamman. There was no error in overruling the motion to strike out all the evidence of the witness Stewart. Some portion of his evidence was material and important, and a motion to strike out the whole evidence was properly refused. The ninth exception was based upon the ground that it referred to the use of the spray prior to June 25, 1913. What we have already said disposes of this exception. We find no error in the rulings in the eleventh and twelfth exceptions. They all related to the testimony of G.W. Pilson. The testimony embraced in these exceptions had in substance been offered without objection in a previous part of this witness' testimony. This witness had been foreman of the paintshop of the defendant company at Cumberland, and in cross-examination had stated that that he had reported the plaintiff sick, and on re-direct examination he was asked why he had done so? He answered: "I don't consider it safe to have the man on the works. He blundered around like a blind horse and I was afraid he would be run over." This evidence had an important bearing upon the plaintiff's physical condition, and we think the Court was right in admitting it. We find no reversible error in the fourteenth and fifteenth exceptions. This brings us to the consideration of the prayers, and before disposing of them it is proper to say that upon the question of the extent of the plaintiff's injury, and upon the question as to whether he could have been injured by the inhalation of the mist and spray thrown out by the paint gun, there is great conflict in the testimony. But it is unnecessary for us to discuss this evidence, as it was the province of the jury to pass upon its weight and credibility, and we have no power to review its findings upon the facts.

The Court granted three prayers on behalf of the plaintiff and seven on the part of the defendant. The Reporter will set out these prayers in the report of the case. They are based upon sound legal principles applicable to a suit under the Act. They submit clearly to the jury the theories of each party. They certainly present the case of the defendant as favorable as it could require. We can not discover any reversible error in the rulings on the rejected prayers. One of these asked the Court to direct a verdict for the defendant because of the want of legally sufficient evidence, and others because of the want of legally sufficient evidence to prove some fact essential to the plaintiff's case, and others referred to questions which were fully covered by the granted prayers. There was evidence in the case on behalf of the plaintiff legally sufficient to have justified the Court in submitting to the jury the finding of every fact essential to the plaintiff's right to recover.

Our conclusion is from a careful examination of the whole record that the Court committed no reversible error in any of its rulings and that the judgment appealed from must be affirmed.

Judgment affirmed, with costs.