Md. Steel Co. v. Engleman , 101 Md. 661 ( 1905 )

This appeal is from rulings of the Circuit Court for Harford County in a suit in which plaintiff obtained a verdict for $7,000 against the Maryland Steel Company of Baltimore County for injuries received while in the employ of that company.

The plaintiff's evidence showed that he had been working for the defendant company for about two months before the accident in which he was injured, in what was known as the ammonia room; that his duty was to operate a salt drying machine, which was run by an electric motor whose power was transmitted to the machine by a belt of about 30 feet in length running from the motor to the line shaft, about 15 feet from the motor, the belt being twice the length of that distance; that it was necessary to the proper operation of this machine to run the motor at a high speed, and he was running it at the time of the accident at the usual speed of about 1,100 revolutions a minute, and using, as he always did, due care and caution in running, stopping and starting the machine; that the belt referred to was made of several strips of leather glued or cemented together, and the ends laced together with leather strings; that it was the duty of the operator to keep the lacing of the belts in order, but whenever a new belt was to be put on, it was applied for, and furnished by the foreman of the ammonia room, and that the life of these belts was about four months, as the wet salt and ammonia ate into the belts and rotted them out; that the company's method of doing business was to assign a foreman to each department; that Milton W. Powell was foreman of the ammonia room, and Mr. Parsons foreman of the coke oven department, and other persons were placed in charge of all other departments; that Powell employed and discharged all the men in his department, and that in each department all reports and complaints were required to be made to the foreman, and the higher officers of the company had nothing to do with these matters, and, in the language of one of the witnesses, that "if a man would attempt to go over the foreman, he would not last long;" that about two weeks before this accident, plaintiff reported to Powell that this belt was getting in bad order, and it would soon be time to get a new one; that Powell looked at it and said plaintiff should have a new one but neglected to get it; that at that time, at a place where a splice had been put in, the edge was beginning to curl up; that two or three days before the accident he asked Powell if he had forgotten his new belt, and he replied, "No, I will give you one;" that plaintiff relied on these promises and expected to be given the new belt, and that he did not quit work because he relied upon these promises and upon their performance within a reasonable time; that on the day of the accident he was running the machine at the usual speed, and using all the care he could in its operation, when the belt burst, and he was struck by it and knocked senseless, receiving injuries of the most serious and dangerous character, permanently disabling him from work or labor of any kind. There was evidence that this belt was broken to pieces, could not be repaired for use, and was thrown out upon the dump pile, and that it was not broken through the loosing of the lacing, which it was plaintiff's duty to repair and keep in order, but through the bursting of a splice. At the close of the plaintiff's case, the defendant offered five prayers seeking to withdraw the case from the jury upon various grounds, all of which were rejected, and this ruling gave rise to the first exception, but as the defendant proceeded to offer evidence in its own behalf, this exception is waived.

The defendant then offered evidence to show that while plaintiff was running this machine, there was considerable trouble with it for want of proper oiling, which caused it to stick and weaken the belt, and to affect the lacing first, as that is the weakest part of the belt, and that when the lacing broke the belt was more likely to wrap round the shaft than when it broke at a splice; that the machine could be started either from the controller or the friction clutch, but that the former was the safer method though either was allowable; that plaintiff was not a careful operator and lacked judgment, that he always started the machine from the friction clutch and would leave torches and candles on the casing of the machine after warning of the danger; that he never asked for a new belt, and that on the day of the accident and shortly after, he told Powell that he heard the lacing hitting against the pulley, or something smacking against it, but he thought he could finish the turn without shutting the machine down; that after the accident the end of the belt next the shaft was wrapped round the shaft, in good condition, with the lacing in it, but the outer end was broken off, and the rest of the belt was split, but that it was not rotten or frayed before the accident, and was a fairly good belt; that it was afterwards repaired by cutting out a piece and inserting another, and was then put back on the machine and used for about a month, when it was replaced by a new belt; that there was a torch on the casing the afternoon of the accident, and afterwards a torch newly broken was picked up from the floor.

At the close of all the testimony, the plaintiff offered two prayers, of which the first was refused, and the second was granted. The defendant offered seven prayers of which the 1st, 2d 3rd and 4th were refused, the 7th was granted as offered, and the 5th and 6th were modified and thus granted. Defendant's first prayer affirmed there was no evidence of any such negligence on its part as justified the plaintiff's recovery under the pleadings; the second, that it was apparent from the undisputed evidence that plaintiff was guilty of contributory negligence; the third, that the undisputed evidence showed the injuries complained of were due to the negligence of a fellow servant; and the fourth that the risk and danger of using the machine at the time of the accident was or should have been known to the plaintiff, and therefore he could not recover.

The modification of defendant's fifth prayer merely struck out the concluding part which withdrew the case from the jury, and the modification of the sixth prayer merely required the jury to find that plaintiff knew at the time of the accident that the use of the machine was unsafe and dangerous.

Plaintiff's second prayer was the usual prayer as to damages in such cases, when allowed to go to the jury.

Plaintiff's first prayer is of extraordinary length, covering three and a-half pages of the printed record, and containing nearly two thousand words. This Court has always discouraged prayers of extreme length, as not adapted to aid and enlighten the jury, and in Whiteford v. Burckmyer and Adams, 1 Gill, 153, approved in Coal Co. v. Scally, 27 Md. 603, the Court said: "If counsel present to the Court a complicated and involved statement which it will be difficult for the jury to understand distinctly, it will be a sufficient ground upon which the Court should refuse to give a direction in the terms asked for." This prayer, we think, would unduly tax the patience and discriminating faculty of the jurors, and for that reason we think was properly refused. Moreover as the verdict was rendered for the plaintiff, it is apparent that even if erroneously rejected there was no resulting injury.

The declaration alleged that it was the duty of the defendant to furnish plaintiff with suitable and safe machinery and appliances for the performance of his work, but defendant negligently supplied defective and unsafe machinery and appliances, and so known to be by defendant, who induced the plaintiff to work with the same by its promise to him that said appliances should be made safe within a reasonable time, and that plaintiff relied on said promise, and continued to work with said defective appliances, and that before the expiration of the time in which he had a right to expect that the promise could be reasonably fulfilled, and while he was using due care in the operation of said machinery and appliances, one of the same gave way by reason of the defects therein, and he received the injuries complained of.

By the granted prayers, the jury were instructed, first, that under the pleadings in the case the burden of proof was on plaintiff to show that the injuries were caused by the alleged defects in the belt. Second, that even if the jury so found, and also found that the defendant's foreman promised plaintiff to supply a new belt, but did not do so, and that plaintiff relied on this promise, and was thereby induced to continue working with the belt, and was injured while so working, still he could not recover unless he used due and ordinary care in operating the unsafe and defective appliance, which plainly showed the extra risk and hazard in its operation, and which plaintiff knew to be unsafe and hazardous, if the jury found he so knew it to be unsafe and hazardous. Third, that the burden of proof was on the plaintiff to show by preponderating testimony that his injuries were caused by want of ordinary care on defendant's part, and that the plaintiff was in the exercise of due and ordinary care on his part.

No citation of authority is required to show that in this State the master's duty is to supply the servant with suitable and safe appliances for the performance of his work; that if he neglects this duty, and the servant, with knowledge of the defective and unsafe condition of such appliances nevertheless continues to work with them, he thereby assumes the risk of injury resulting from such defects; and that he cannot in any event recover for injuries resulting directly and solely from the negligence of one who is merely his fellow servant. It appears from the summary we have given of the testimony that there was evidence requiring it to be left to the jury whether the belt supplied by the defendant was defective and unsafe, whether the plaintiff's injuries were caused by the breaking of this belt, and whether he was guilty of any negligence in the manner of performing his work, contributing to his injuries, and these questions being so left to the jury, by the granted prayers, it follows that they were correctly granted, unless, upon some other controlling principle, the case should have been withdrawn from the jury.

The defendant's rejected prayers Nos. one and three proceed upon the theory that Powell, the foreman of the ammonia department, was the mere fellow servant of the plaintiff, for whose negligence in supplying a defective instrumentality, the defendant cannot be held liable; and the defendant's rejected prayers Nos. two and four are framed upon the theory that the danger of using the defective belt being open and obvious to the plaintiff, its use was in law contributory negligence notwithstanding that such use was continued in reliance upon Powell's promise to supply a new belt. The defendant's fifth prayer as offered instructed the jury there was no legally sufficient evidence that plaintiff's injuries were caused by the alleged defects in the belt, and we have already said this was a question for the jury. The modification of defendant's sixth prayer requiring the jury to find that the plaintiff knew the operation of said machinery was unsafe and hazardous, was free from objection.

We are of opinion that Powell's neglect to supply a safe belt, if found as a fact by the jury, must be regarded as the negligence of the defendant.

A sufficient authority for this view is found in Moran'scase, 44 Md. 292, 293 and 294, in which the Cumberland and Pa. R.R. was held liable for the negligence of its master of machinery and general superintendent in the purchase of a second-hand engine, in such condition that when repaired and put in use, it exploded and killed the equitable plaintiff's minor son. In the opinion in that case JUDGE ALVEY cited with approval the language of CHIEF JUSTICE COCKBURN in Clark v. Holmes, 7 H. N. 493, where it was said, "Where a servant is employed on machinery from the use of which danger may arise, it is the duty of the master to take due care, and to use all reasonable means to guard against and prevent any defects from which increased and unnecessary danger may occur;" and added, "The rule I am laying down goes only to this, that the danger contemplated on entering into the contract shall not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from the terms of the contract, or the nature of the employment, the servant had a right to expect it to be kept." Following that case, JUDGE ALVEY said, "Now, as it was the duty of the defendant to supply as far as it could be done by the exercise of due and proper care, safe and sound machinery, the persons authorized to select and purchase the engine, must be taken as the representatives of the defendant, and any omission or neglect committed by them, must be regarded as that of the defendant, for which it is liable. These agents therefore thus entrusted with the duty of purchasing the engine are not to be regarded as fellow servants of those operating it; for in respect of its selection and purpose, they acted as agents representing the principal in regard to matters for which the latter might be liable to its servants."

There was therefore no error in the rejection of defendant's first and third prayers. It follows from the principles of that case that the promise of Powell to supply a new and safe belt must be regarded as the promise of the master and this is sustained by Fort Wayne R.R. v. Gildersleeve, 33 Mich. 133, and the copious notes to Illinois Steel Co. v. Mann, 40 L.R.A. 796.

The question raised by defendant's second and fourth prayers, namely, whether the continued use of the defective belt in reliance upon such promise, was not in law contributory negligence, still remains to be considered.

Notwithstanding the numerous cases for personal injuries to be found in the reports of this State; this question does not ever appear to have been presented in this Court for decision and we are therefore at liberty to determine it as upon first impression. JUDGE COOLEY, in his work on Torts, p. 559, states the law thus: "If the servant, having a right to abandon the service because it is dangerous, refrain from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care, unless or until he makes his assurance good. Moreover the assurances remove all ground for the argument that the servant by continuing in the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may, and should, where practicable, come to an understanding between themselves regarding matters of this nature." It would be difficult to improve upon the clearness and reasonableness of this statement, and the same view is held by other text-writers, such as Wood onMaster and Servant, and Buswell on the Law of PersonalInjuries. The latter states it thus: "If it appears that the master has promised to remedy the defect, or other like inducement to remain has been held out to the servant, the mere fact of his continuing in the employment, does not of itself, as matter of law, exonerate the master from liability; but the question of contributory negligence will, in such a case, be for the jury."

In Hough v. Texas Pacific R.R., 100 U.S. 213, the Court quoted with approval the following passage from Shearman andRedfield on Negligence: "There can be no doubt that where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and as we think for an injury suffered within any period which would not preclude all reasonable expectation that the promise would not be kept." The same authors say in sec. 215 of the 4th ed: "If a servant gives notice to his master of a defect in machinery or appliances which he is required to use, and the master promises to remedy the defect within a reasonable time, the master will be liable for injuries resulting to the servant from such defect, and the servant will not be chargeable with contributory negligence in continuing in the service for such reasonable time, unless the danger is so great that a man of ordinary prudence would not remain in the service under the circumstances." For a list of text-writers and cases sustaining that statement of the law, see note to Gulf R.W. v. Brentford in 23 Amer. St. Rep. 385, and for the general principles involved see an exhaustive and discriminating note to IllinoisSteel Co. v. Mann, 40 L.R.A. 781. In Conroy v. Vulcan IronWorks, 6 Mo. App. 105, the Court said: "It would be simply inhuman to hold that if an employee, thinking the machinery he is using is to some degree unsafe, reports its condition to his employer and is then told to continue to use it a short time, and that it will be immediately repaired, and then in obedience to instructions continues his work cautiously, believing that he can by care avoid an accident until the evil is remedied, and is injured in spite of all these precautions, his master is not guilty of negligence, but that the servant is, and that therefore there can be no recovery. Such a rule would be as bad for the master as it is for the servant. It certainly is not the law."

In Kroy v. Chicago R.W., 32 Iowa 357, the Court, speaking of what may be regarded as sufficient notice of a defect within the rule above, says, "The dependent position of servants generally makes it reasonable to hold any notice on their part sufficient, however timid or hesitating, so long as it plainly conveys to the master the idea that a defect exists, and that they desire its removal." This we think is a sound and humane rule. None of the prayers rejected in this case require us to pass upon some of the distinctions adverted to in the cases cited in 40 L.R.A. supra, and there is no occasion to allude to them. We are content to rest our ruling upon the principles and cases referred to, confining our decision to the facts of this case; and so doing we find no error in the rejection of defendant's second and fourth prayers.

The third exception was taken to a question allowed to Mrs. Von Payhr, a sister-in-law of plaintiff, who was offered in rebuttal by plaintiff to corroborate his testimony that he asked Powell for a new belt, in reply to which question she testified that a few days before the accident, he asked her to bring his supper to him, at the works — and when she refused saying the place was too dirty, he said he would have it cleaned up, and that he had asked Powell for a new belt that day and he said he would give him one. It has been held in McAleer v. Horsey, 35 Md. 439, and inStaylor v. Gill, 93 Md. 453, that where two persons contradict each under oath respecting a matter occurring between themselves only and about which they have equal means of knowledge and equal reason for accurate recollection "evidence may be admitted in corroboration of the witness' testimony to show that he affirmed the same thing before, and that he is still constant to himself." But the Act of 1888, ch. 315, now incorporated in sec. 3 of Art. 35 of the Code of 1904, it is enacted that "it shall not be competent, in any case, for anyparty to the cause who has been examined therein as a witness, to corroborate his testimony when impeached by proof of his own declaration or statement made to third persons out of the presence and hearing of the adverse party."

In the face of this Act we are constrained to hold that this testimony was improperly admitted and tended to prejudice the defendant.

For this error the judgment must be reversed.

Judgment reversed with costs to the appellant above and belowand new trial awarded.

(Decided June 23rd, 1905.)