Cumberland Coal & Iron Co. v. Scally ( 1867 )

Bowie, O. J.,

delivered the opinion of this Court.

At the trial of this cause below the appellee offered but one prayer, which was granted with a modification by the Court; the appellant submitted twenty-one prayers, the first, second, third, ninth and tenth of which were after-wards withdrawn; the fourth, fifth, sixth, seventh, eleventh, twelfth, fifteenth, seventeenth and nineteenth were rejected; the eighth and fourteenth were granted with provisos, and Mie rest as originally offered. The appellant exeeptéd to the rejection and modification of its prayers, and to the granting of the appellees as modified. The gravamen of the narr. is certain injuries sustained by the appellee whilst employed as laborer by the appellant, in the course of which service, in descending a heavy grade of the railroad of the appellant, in a train of gondola or open cars, with other laborers, under the direction of a conductor, the appellee was thrown out and severely wounded. The appellee’s prayer claimed the right to recover if the “ injury were caused by either the want of ordinary sldll and experience on the part of the other hands in charge of said train to manage and conduct the same, the plaintiff himself using all the diligence of which he was capable in that behalf; or by any obvious defect or insufficiency that might have been discovered by ordinary care in said cars or any of them, or in the 'machinery and appliances for controlling and governing the same, at the time of placing the same on the road to be worked by the plaintiff and others with him, and which defect or insufficiency (if. any) was unknown to the plaintiff and which rendered the said cars unsafe, for the particular use or employment; or by the want of a locomotive engine under the management of an engineer of competent sldll to conduct doion said train, if the rislc of running said cars down the grade of said road without a locomotive engine was dangerous.”

Which prayer was granted with this modification: “ Provided he can prove to the satisfaction of the jury by evidence, that the defendant did not use reasonable care in the selection and employment of the foreman, who conducted said cars, and that the said cars were not of approved construction and material, and selected by persons who were not of competent skill and judgment for the purpose.” The modification of this prayer seems to us substantially to embrace the doctrine announced by this Court in the case of O'Connell vs. The Balto. & O. R. R. Co., 20 Md. Rep., 222, in which all the most recent cases of liability of employers to employees for injuries resulting from negligence were reviewed, and the following conclusions announced, viz : “ When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible. The liability to injury of one from the carelessness of his fellows, is but an ordinary risk, against which, the law furnishes no protection, but by an action against the wrongdoer. Though it is the duty of railroad companies to exorcise all reasonable care in procuring for their operation sound machinery and faithful and competent employees, and, though they are liable to their servants for the neglect of this duty, yet after they have procured such machinery and employees, they are not liable to a servant for the injuries occasioned by the neglect of any of their co-servants employed in the same general business of operating the road.” 23 Penn. Rep., 386, 387 ; 32 Verm. Rep., 473 ; 4 Metcalf Rep., 49.

The granting of the appellee’s prayer as modified, is objected to, because, as it is said, it submits facts of which there was no evidence, and which were positively disproved. Several examples of which are enumerated :

1st. That the plaintiff was employed as a miner, and was placed and detailed to work at the repairs.

2d. That he was so employed under a foreman and gang of hands in the management and conduct of cars, on a railroad, not practised in the same, whose directions he was required to obey.

3d. That the injury was caused by want of ordinary skill, or by any obvious defect in the cars, or want of an engine.

A. Court of original jurisdiction should not submit to the jury the finding of a fact of which there is no evidence ; but if there be any evidence tending to prove it, it would be trenching on the province of the jury, to refuse the instruction because the evidence on which it was founded, might not be deemed conclusive by the Court. “ The sufficiency of evidence to satisfy a jury, or the circumstance that it is all on one side, does not authorize the Court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the Court should control the exercise of their admitted right to weigh the credibility of evidence.” The Charleston Ins. and Trust Co. vs. Corner, 2 Gill, 426 ; Henderson vs. Mayhew, 2 Gill, 409. The case of Walter et al. vs. Alexander and Wife, was a case in which the fact to he found was evidenced by a deed, if at all, and the Court said that the deed of lease under which the defendant claimed title, showed she was not entitled to the lot for-which the ejectment was brought.

Under these circumstances, it was held the appellee’s prayer was erroneous, because, among other reasons, it called on the Court to submit to the finding of the jury a fact of which there was no testimony, but which was conclusively disproved by the testimony of both parties.” 2 Gill, 215, 216. The issues in this case involved the competency of the conductors and the sufficiency of the cars and machinery. The jury were to find these facts from all the circumstances given in evidence. The opinion of the witnesses was not conclusive on the jury. The conductor and employees were before them. Their management and conduct, at the time of the supposed injury, constituted a part of the testimony from which the jury might draw their own conclusions of the skill and competency of the conductor and the sufficiency of the cars, etc.

The prayer of the appellee, as modified by the Court, required him -to prove that the appellant did not use reasonable care in the selection and employment of the foreman who conducted said cars, and that said cars were not of approved construction and material, and selected by persons who were not of competent skill and judgment for the purpose, as a condition essential to his recovery.

(Decided 19th July, 1867.)

The prayers of the appellant which were granted by the Court, submitted to the jury all the circumstances which qualified the liability of the appellant, in the amplest manner. The rule laid down by this Court, in 20 Md. Rep., 222, does not limit the liability of the employer to the selection of his principal agents or officers. It requires he should exercise all reasonable care in procuring for his operations sound machinery and faithful and competent employees or agents. The law of the case having been correctly announced by the Court below, in the appellee’s prayer as modified, and in those of the appellant which were granted as originally submitted or with qualifications, the appellant was not prejudiced by the rejection of those which were refused. In such a multiplicity of propositions, in which, after innumerable details of particulars, the conclusion of one was often made to depend upon what was recited in another, it was inevitable that some might have been rejected which would iiave been proper, hut, taken collectively, they could subserve no practical purpose as a guide to the jury. It is difficult, upon patient investigation, to comprehend the difference between many of the propositions, so numerous are the circumstances referred to, and the Court, for this reason alone, was right in refusing them. 1 Gill, 153.

Judgment affirmed.