Crawford v. United Rys. Co. , 101 Md. 402 ( 1905 )

This suit was brought for the recovery for personal injuries sustained by the plaintiff while in the discharge of his duties as a conductor upon one of the cars of the defendant company. The car in question was an open summer car with nine seats for passengers running across the car, and with a foot-board upon each side used by passengers in entering and leaving the car, and by the conductor in taking up the fares, that being the only means of passing from one end to the other while the car was in motion. The plaintiff's injuries were caused by the breaking of a hand hold attached to the side of the car, and provided for the use of the conductor in stepping up and down from his position on the rear platform to the foot-board, it being necessary for him to use this particular hand hold for that purpose. There were a number of other similar hand holds to aid passengers in entering and alighting, and to aid the conductor in passing along the foot-board. When he first used this particular hand hold to step down from the platform on that morning, it pulled off and he was thrown violently into the street and received severe injuries to his knee and back.

On the morning of the accident, September 16th, 1903, the plaintiff was assigned by one of the officers of the company to car No. 275, and left the northern terminus of that line at Druid Hill Park at six o'clock for the first run of the day to the southern terminus at Fort McHenry. This run was made without incident, the car running on the right or west track going south and the foot-board and grip handles on that side of the car next the pavement being exclusively used until Fort McHenry was reached. There the trolley was reversed, the rear end of the car became the forward end, and the foot-board and the grip handles on the right or east side of the car going north on the east track, being next to the pavement, were exclusively used until Druid Hill Park was reached. The plaintiff testified that during the return trip from Fort McHenry to Druid Hill Park he was on the foot-board, but did not have occasion to go and did not go, upon the rear platform until he was approaching and near the car barn, when he stepped up as he was required to do upon the rear platform to get his manifest which is kept there, for the purpose of going to the register in the forward end of the car to enter upon the manifest the fairs registered in the run up. That during the run up, and while on the foot-board, he used every grip handle on that side of the car except that at the rear platform, but did not use that until he attempted to step with his manifest from the rear platform to the foot-board, when it pulled off and threw him down upon the street as stated; that in stepping up on the platform he used the post to which the handle was attached, but in stepping down he could not use the post, and was obliged to use the handle; that the step down from the platform to the foot-board was about eighteen inches and the foot-board about eight inches wide; that the handle was attached to the post by two screws through a plate at the bottom, and ran through a socket at the top, and that there was no visible defect in the handle or its attachment before the accident, and that he had never, to his knowledge, used that car before; that the car when assigned to him, was not in the car barn, but was upon a track on the street, called the dead track. He also testified positively that there was no collision or contact with any obstacle, either during the run to Fort McHenry, or on the return run to Druid Hill Park.

Lawrence Hayden testified that on the morning of the accident he was in front of the car barn on the corner of Retreat and Francis streets, and as the car was approaching the barn, saw the plaintiff step down from the rear platform, and as he stepped, he went headlong in the street between the curb and the track; that he got up and hobbled down on one leg with the handle bar in his hand; that he (witness) examined the car a few moments later, and found that the post to which the handle bar was attached, was cracked near the plate at the bottom of the handle; that there was one bent brass screw still in the handle, and one screw was broken off and the handle bar had a dent or bend, in the lower part. This witness was at that time a conductor on the defendant's line. This was the plaintiff's case.

Dennis Sheehan, the superintendent of this line of cars, testified for defendant, that instructions for conductors and motormen were posted in the car barn, and that they are required to report any accident or defect in a car, when it is turned in at night; that he received no report the previous night that this car was out of order, and knew nothing of any defect in it, until after this accident; that there was a night inspector whose duty it was to examine all cars turned in at night, before being put in service in the morning, and if any defect is found, to hang a shop sign on the car showing it is not to be taken out.

The motorman in charge of car No. 275, the night previous to this accident testified that he finished his run at one o'clock at night, and turned in this car in perfectly good condition for service.

Hubbard, foreman of the car barn at that time testified that it was Kenny's duty to inspect every car in the barn, and every car on the dead track at night and report the result to him in the morning, and that he received no report of any defect in car No. 275. He also said, "sometimes when the cars are not put in the barn, they stand on that dead track. When the barn does not hold them, or for any reason, we want a supplemental place to leave them, we place them on these dead tracks. I have seen as many as a dozen there over night. It is usual for cars to be on thedead track; if we have room enough in the barn we don't use thedead track. All the cars go in, and when the barn is full we leave them on that track; there is room in the barn for the cars that come in early, and the last cars coming in at night are those that stay on the dead track."

Kenny, the inspector, testified that he was on duty the night of September 15th, 1903, and inspected every car in the barn and on the street; that he inspected car No. 275 and found it in good condition, at 2.30 A.M., and that he used a lamp with a reflector, which shows him any object or part of the car he wants to see and that if there is any defect he is sure to see it. That in the barn they do not need and do not use, this lamp, and use it only on the street; that there were twelve cars on the street that night, all of which he inspected after those in the barn. That in the course of his inspection he took hold of each grip handle on each car, and swung his weight with both hands on each handle, and tested in that manner that handle of this very car and was prepared to say there was no crack in that handle that night; that he was engaged in inspecting that night from seven o'clock until 4.30, and that during that time he swung his body on each handle of ninety cars, there being twenty-eight handles on each car. He said he saw the handle bar in question the night after the accident, and that it then "was like something had hit it when moving. The screws looked like it was broke out; it was not from the pull of the conductor, it was hit by something."

This closed the testimony, whereupon the plaintiff offered three prayers which were rejected, and the defendant offered two which were granted, as follows: "The Court instructs the jury that there is no legally sufficient evidence in this case to entitle the plaintiff to recover, and therefore their verdict must be for the defendant." 2nd. "The Court instructs the jury that the defendant could delegate the duty of the inspection of the car, and as it appears from the uncontradicted evidence that the defendant appointed an inspector, and as there is no evidence that he was incompetent, there could be no recovery in this case, unless the jury should find that the defendant had actual notice of the defect before the accident, and as there is no evidence of actual notice of the defect before the accident, the verdict must be for the defendant." The plaintiff's first and second prayers are framed upon the theory that it was defendant's duty to provide a car safe in every respect, at the time when plaintiff was assigned to it, and that if it was not, at that time, a reasonably safe place for the performance of the duties required of the plaintiff, and defendant knew, or might have known, this, in time to make it safe, if reasonable care had been taken to inspect the car at a proper time and place — or to protect the car from injury in the interval between the inspection, and its assignment to the plaintiff as a place for him to work on, then the plaintiff was entitled to recover.

The plaintiff's third prayer was the usual prayer as to damages where the case goes to the jury, and needs no consideration, but we shall request the reporter to set out the plaintiff's first and second prayers in full.

The case was ably argued, and the appellee relied mainly upon three leading cases in Maryland upon the law of master and servant, viz: Wonder's case, 32 Md. 416; Hanrathy's case,46 Md. 281; Hamelin's case, 57 Md. 307, as conclusive; and, if in the present case, the master can be held to be free from negligence in the performance of any positive non-assignable duty, causing the plaintiff's injuries, and these can be held to be exclusively due to negligence of the car inspector in the discharge of his delegated duty, then it must be conceded there was no error in the ruling on the prayers, for the reasons assigned in the three cases above, and other decisions in Maryland which might be cited.

We have detailed all the evidence in the case at unusual length, in order that it may clearly appear why we think it does not fall within the class of cases illustrated by the decisions mentioned, and must be governed by other principles than those there applied.

Ever since the decision in Wonder's case, it has been settled in Maryland, that where injury was the consequence of the incompetency or neglect of a fellow servant, or where the evidence wholly fails to disclose the origin of the defect causing the injury, the master is not liable to his servant, it not appearing that he has been guilty of negligence, either in selecting the fellow servant, or in providing the machinery in which the defect occurred. It was settled also in this State, by the same decision, that all who serve the same master and are engaged in the same general business, though it may be in different grades and departments of it, are fellow servants, each taking the risk of the other's negligence. In that case, JUDGE ALVEY said, "It follows therefore that the brakeman on the train (the plaintiff) is in the same common employment with the mechanics in the shop to repair, and keep in order, the machinery, and with the inspector of the machinery and rollingstock of the road, and the superintendent of the moving of trains." Hanrathy's case presents the same general features as inWonder's case, and is governed by the principles there enunciated.

Hamelin's case when decided was thought by some to have strained the doctrine of Wonder's case, but in Yates v.McCullough Iron Company, 69 Md. 380, it was carefully considered, and sustained, and has since been frequently cited with approval by this Court.

In Hamelin's case the deceased was engaged in the erection of an iron bridge, under the direction of a skilled bridge builder who was superintendent of the work. His death was caused by the negligent use by the superintendent of a plank in a high scaffold, cut too short for safe use, and carelessly allowed to rest upon greased iron rails designed to support one of the bridge spans, instead of resting as it should have done upon the cross pieces of the scaffold, and a strenuous effort was made to discriminate that case from Wonder's case, but JUDGE ALVEY said: "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 in 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."

It is not, and could not be, contended that there is any evidence in this case of the incompetency of the car inspector, nor indeed that he was guilty of any negligence in the mere inspection of this particular car on the night preceding the accident, and therefore we have said that if the defendant was free from negligence in the performance of any positive, non-assignable duty causing the plaintiff's injury, the ruling upon the prayers was correct, and this brings us to to the inquiry whether any such duty was neglected by the defendant.

In Hamelin's case the Court stated this qualification to the general rule there stated; "Where the middle man or superintendent, is entrusted with the discharge of duties incumbent upon the master, as between the master and the servant, there the master may be liable for the omission or neglect of the manager or superintendent in respect to these duties, if the master relinquishes all supervision of the work, and entrusts this, and the instrumentalities necessary for the service, to the judgment and discretion of the 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." Therefore in Moran's case, 44 Md. 283, where the power to select and purchase a locomotive was delegated to a general superintendent and master of machinery, the defendants were held liable for their negligence in the discharge of that duty. If, in this case, the defendant had provided no inspector of its cars, or had provided one who was incompetent, he would have been liable for an injury resulting from want of inspection, or incompetent inspection because the duty of employing a competent inspector, who actually inspects, is a duty which the master cannot delegate. It is not enough that the master employs competent servants and furnishes them with proper facilities for performance of their duty. "He must exercise reasonable care and supervision over them and see that they do their duty." Conner v. Durite Mfg. Co., 156 Mass. 163. And "when the business of the master is such that the safety of one servant depends upon the way in which other servants do their work, it is the duty of the master to adopt, promulgate, and enforce reasonable and sufficient rules to protect and promote the safety of its employees exposed to danger." Nellis, Street Railroad AccidentLaw, 425; 12 Am. Eng. Enc. 959; Abel v. Del. HudsonCanal Co., 103 N.Y. 581.

The duty of inspection cannot be properly discharged, without providing some system of inspection, and no system can be fairly regarded as adequate which does not provide for timely inspection, and safe custody of the thing inspected during any substantial interval between its inspection and its use. The duty of providing a reasonably safe and efficient system of inspection, cannot from its very nature, be delegated to the inspector himself, but must be discharged by the master himself or by some one bearing to him the relation of vice-principal. As expressed in Ford v. Lake Shore R.W. (N.Y.) 12 L.R.A. 454, "A corporation is bound to carry on its business under a proper system, and if through a failure to establish such, a servant is injured, the corporation is liable. The master is responsible for his own negligence and want of care, and this may appear from his failure to make proper rules or establish a proper method of the conduct of his business. These are the master's duties and responsibility cannot be evaded by their delegation to agents. As to such acts the agent occupies the master's place, and the latter is deemed present and liable for the manner in which they are performed." To the same effect are Toy v. U.S. CartridgeCo., 159 Mass. 313; Palmer v. Canal Company, 120 N.Y. 170;Smith v. Baker, L.R. 16 App. Cases, 353.

There is no evidence in this case that the defendant ever adopted, promulgated, or enforced any reasonable and sufficient system of rules for the inspection of its cars. Such a system, as we have already said, must have provided for careful inspection at a proper time and place, and for safe keeping after such inspection. There is evidence that Kenny's inspection of this car was careful and thorough, but in the absence of rules for his government, he was allowed to leave the car after inspection, for several hours of the night, unlighted and unguarded, subject to all the risk of injury arising from accidental collision with passing vehicles, or from deliberate and wanton mischief. Of what avail would be the most careful inspection of the instrumentalities necessary for the service, if, after inspection, these instrumentalities, for want of proper rules and regulations, were left unguarded in the public streets, exposed to the obvious dangers resulting from idle trespass or reckless malice? No one would hesitate to apply this reasoning to portable tools or appliances required to be used in the service of the master, and there is no sound reason why it is not equally applicable to such an instrumentality as a street car. The circumstances under which this car was inspected do not present an isolated case in which there was a departure from established rules and regulations, unknown to the master, or of which he could not have known by reasonable diligence. On the contrary the uncontradicted testimony of the foreman of the car barn shows that whenever the barn did not hold the cars or for any reason it was desired to have a supplemental place to leave them, they were left in the street, and that it was usual for them to be left there. Not only was there no rule provided for the safe keeping of the cars after inspection, but the practice or custom was to leave some of them most of the time in an improper and unsafe place, and knowledge of this practice or custom must be attributed to the defendant. In our opinion the failure to provide proper rules and regulations for inspection, and the permitting of the practice shown, clearly constituted negligence of the defendant, for which the plaintiff is entitled to recover, if it was the cause of his injury. In Frankle v.Jackson, 30 Fed. Rep. 398, the Court said, "The right to use the streets for the running of trains gives no right to establish a repair shop thereon." And this Court in Brauer v. Balt. R. H. Co., 99 Md. 367, citing Rex v. Russell, 6 East. 427, said, "One could not eke out the inconvenience of his own premises by taking in the public highways." In Southern Pac.R.R. Co. v. Laferty, 15 U.S. Appeals, 201, it was said, "It is the duty of a railroad company to see that its locomotive engines, after the run, are left in a place of safety. If left where they are liable to be put in motion by the careless, negligent or willful act of outside parties, it is as much the duty of the company to see that they are properly guarded to prevent accidents from occurring, as it is to see that a sufficient number of employees are put on trains set in motion by its own orders;" and as a corollary from this, it follows that wherever the safety of a servant depends upon the inspection of some agency of the master, which is negligently exposed in an unsafe place after inspection, and before its use, the master will be liable for injury, resulting from such negligence. It was contended by the appellee that there was no evidence these cars were unlighted or unguarded while left in the streets after inspection, and that it would have been error to permit the jury to make this assumption. But in the absence of affirmative proof upon this point by the appellee, the presumption of law is that they were not lighted or guarded. If any authority is needed for this natural inference it is found in Jenkins v. B. O.R.R., 98 Md. 404, where the plaintiff was run over in the night by a freight train running backward, and where the case was taken from the jury. In reversing the judgment this Court said, "There was no evidence of any signals or warning given of its approach, so that it must be assumed for our purpose that no bells or other signals were given, and no lights shown on the front or any part of the train." And this presumption in the present case is strengthened by Kenny's testimony that they needed no light for inspection in the car barn but required a lamp when inspecting the cars left on the street.

It was also contended by the appellee that there was no evidence to show how the handle bar was broken, and to permit the jury to assume that it was broken during and by reason of its exposure upon the street after inspection as argued by the appellant would be to permit them to indulge in wild speculation which cannot be made the basis of a verdict. But we think there is evidence legally sufficient tending to support the plaintiff's theory. Kenney testifies positively that when he inspected this car at 2.30 A.M. he swung his whole weight upon every handle of the car, and tested this particular handle in that manner, and that it was then in perfectly safe and sound condition. He also testifies that when he examined this handle the evening after the accident, "the screws looked like it was broke out. It was not from the pull of the conductor; it was like something had hit it when moving." This testimony must be taken to be true in passing upon the prayer taking the case from the jury.

The evidence is that but one trip was made to Fort McHenry and back to Druid Hill Park before the accident happened, that on the down trip the right hand foot-board alone was used by the conductor, while on the return trip the other foot-board alone was used, and that the handle which broke as he was stepping down from the rear platform was then used for the first time that morning; the conductor testified positively that neither upon the run to Fort McHenry nor the return to Druid Hill, was there any collision with his car, nor did it come in contact with anything whatever, and the truth of this testimony must also be assumed. Upon these assumptions, it would follow that the injury to the handle must have been received during its exposure upon the street during the night and after its inspection, though the jury if the case had been allowed to go to them, would not have been bound by any presumption, and could have found that the handle was injured either while on the street during the night, or while on the trip in charge of the conductor and motorman. If the latter, whether by his own negligence, or that of his fellow servant, the motorman, or from some unexplained cause, the master would not be liable. But if the former, the master would be liable, since the injury to the handle could not have occurred but for the negligent exposure of the car upon the street after inspection, and in this view of the case it is not material to know how the injury occurred. It would be enough to know that it occurred during, and because of such negligent exposure.

Upon principle we think it should have been left to the jury to determine the question of fact, whether the injury to the handle occurred before the plaintiff was assigned to the car, and while negligently exposed upon the street, or after he was placed in charge of it, and we think the authorities sustain this view. InSmith v. N.Y. and Susquchannah R.R., 46 N.J.L. 7, where loaded cars set on a side track, and chocked by a tie, escaped on the main track and caused a collision, the question of the company's negligence was held to be for the jury, though there was no proof how the cars escaped.

In Southern Pacific R.R. v. Lafferty, supra, where engines escaped from the yard and ran out on the track causing a collision, the Court said it was for the jury to determine whether reasonable care had been taken to prevent the escape, though there was no evidence of what set the engines in motion, and the Court quoted with approval the following language from Jones v. E., T.V. G.R.R., 128 U.S. 445: "We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others."

In Brann v. C., R.I. Pac. R.R., 53 Iowa 595, where the plaintiff was injured by the breaking of a hand hold on a freight car, and the case was taken from the jury in the trial Court, the judgment was reversed, the Court saying, "Can the Court, as matter of law, say, when, where, and how often, inspection shall take place, or that it should not have taken place at some time while the car was under defendant's control? We think not, and that it was a question for the jury."

There is no Maryland case involving the same question here presented, but we think this case comes within the language and reason of Cooke v. Traction Co., 80 Md. 558, where this Court said, "Where the nature and attributes of the act relied on to show negligence contributing to the injury, can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the Court to determine its quality as matter of law."

It follows from what we have said that the learned Judge of the Superior Court was in error in granting the defendant's prayers. The plaintiff's prayers are in general accord with the views which we have expressed, but it is unnecessary to prolong this opinion by a critical analysis of them.

The judgment will be reversed with costs to the appellant above and below, a new trial is awarded.

Judgment reversed.

(Decided June 21st, 1905.)