Balto. and Ohio R.R. Co. v. Wilson , 117 Md. 198 ( 1912 )

The present case derives its chief importance from the fact that the jury before which it was tried rendered a verdict in favor of the plaintiff for twenty thousand dollars, one of the largest verdicts in an action for damages for personal injuries rendered in this State. But with the amount of the verdict this Court has nothing to do. That was a question for the jury, if the case made out was one which it was proper to submit to a jury, under suitable instructions, and for the Court in which it was tried upon the motion for a new trial.

The questions of law upon which the case is brought before this Court are few in number, but one of them at least is of considerable importance.

The Fourth Bill of Exceptions was taken to the action of the trial Court in its rulings upon the defendant's prayers, the first of which was to the effect that there was no legally sufficient evidence to entitle the plaintiff to recover. As this went to the entire case of the plaintiff, a succinct statement of the facts as testified to by the witnesses becomes germane to the consideration. The Baltimore and Ohio Railroad had a single track bridge over the Susquehanna River which was being reconstructed and converted into a double track steel bridge. This involved the taking down of the previously existing structure. For this purpose and the further purpose of continuing the operations of the railroad, there was erected false work to support the track while the work was proceeding, and which false work was designed to bear the weight of the new bridge during the progress of the work, together with the machinery necessarily employed in the construction. The plan was that the bridge when completed should rest upon piers built of concrete, the spans between the several piers being of various lengths. The main span between the Cecil county end of the bridge and Watson's Island was to be 337 feet in length. To support the construction of this span and the track of the railroad during the time of construction, two towers were erected. The manner of erecting these towers was: First, double rows of piles were driven in the bed of the river thirty feet apart, each row containing twenty-eight piles. The rows of piles were parallel with the general direction of the river, and at apparently a right angle with the general direction of the bridge and railroad to be constructed above. These piles were then capped with heavy timber and upon this capping were erected uprights of 12 by 12 timbers, the outer of which or possibly all, were battered, that is, inclined so as to resist and distribute the strain from above. The upper ends of these uprights were in turn capped and the same method of construction continued until the desired height was reached, so that the railroad tracks were elevated about ninety feet above mean tide. In addition to the battering, the uprights were braced by longitudinal and X braces.

After the construction of these towers the trains of the defendant company were run upon and over this false work without accident from about the middle of July, 1908, until the 23rd of September. Shortly after 6 o'clock on that morning a passenger train, west bound, passed over the bridge. This train passed the plaintiff, who was a day watchman on the bridge employed by the defendant company, not far from the west end of the bridge. The plaintiff after this train had passed continued on across the bridge to the east end, and then started to return across the bridge. He had proceeded but a short distance when he met an east-bound freight. The locomotive and two or three cars of this train passed him, when the structure collapsed, carrying down the false work and cars, together with the plaintiff, ninety feet. By this fall the plaintiff was severely injured, and it is to recover for the injuries so sustained that this suit is brought.

The plaintiff called as witnesses Joseph Brandt, who had worked at bridge building for about ten years; Murray Wood, who had been similarly employed between five and six years; Christopher Burns, also a bridge worker for five and a half years; George Horner, similarly employed for sometime, and Carroll Boyd, also a bridge worker for about six years. After testifying to the method of constructing the false work, they gave evidence which may be epitomized as follows, without quoting the precise questions and answers of each witness: On the afternoon of September 22nd, for the purpose of driving a bolt home in the new steel work, a portion of a rail weighing in the neighborhood of 1,200 pounds was used as a rammer. While being so used the rail or rammer broke and a piece of it fell, striking and cutting off an end or corner of one of the caps below. This it was subsequently testified by the witness Reynolds, who was a foreman on that part of the work, and who was called by the defendant, had no effect upon the strength of the tower. But it was further testified to by the witnesses for the plaintiff, that the timbers on one of the towers were out of plumb, by some that they had buckled, and that this condition became worse as time progressed, and that it had increased to such a degree that it was the occasion of conversation among the men employed on the work as they were returning home the evening before the accident, and the attention of the foreman Reynolds was called to it. Most of the witnesses place the point of what they describe as buckling at the cap where the piles and the first set of the 12 by 12 timber uprights came together. That these workmen were correct is corroborated by the witness Reynolds, who testified that the piles did lean out, though he denied that there had been a technical buckle, and he also testifies that they had been in this condition from the time they were first capped, but insists that the safety of the structure was not affected thereby.

For the purpose of the prayer now being considered, the evidence of the witness of the defendant, Reynolds, is immaterial and is referred to only to show that the conditions testified to by the plaintiff's witnesses, who were practical men, rather than experts, is amply supported. The rule is too well settled to require any citation of authorities, that a master is bound to provide a reasonably safe place for the servant to work in. The plaintiff's evidence tended to show that the place provided was upon a temporary structure of high elevation, required to sustain heavy weights and vibration, where one of the supports had buckled, or was out of plumb, or had sprung, and that this condition had been increasingly manifest up to the time of the happening of the accident. This evidence, if believed by the jury, would clearly have warranted an inference that the accident was due to the negligence of the defendant in failing to provide a reasonably safe place for the plaintiff to perform his duties, and the refusal of the trial Court to grant the first prayer of the defendant was entirely correct.

The defendant's third prayer was likewise properly refused. It required the jury to find either that the Railroad Company did not use due care in planning the reconstruction of the bridge, or in inspecting the work during its progress, entirely ignoring the element that the bridge was or should have been constructed in accordance with the plans; or that the railroad company did not use due care in selecting the American Bridge Company to reconstruct the bridge. The railroad company could not in any such manner relieve itself of its legal obligation to provide its own servant, whom it placed on the work, with a reasonably safe place in which to do his work.

Nor is it perceived how the defendant was in any way injured by the granting of its second prayer in connection with the eighth prayer of the plaintiff. This prayer of the plaintiff has been repeatedly passed on and approved by this Court, and the effect of the joining to it of the defendant's second prayer was to instruct the jury more precisely as to the burden of proof in respect thereto.

The plaintiff's third prayer was upon the measure of damages in the event that the jury found a verdict for the plaintiff, and his seventh prayer defined the measure of care or duty owed by the master to the servant and were both in the form sanctioned by long usage.

The correctness of the granting of the prayer in favor of the American Bridge Company, by which a verdict was directed in favor of that corporation has not been questioned in this Court, and that exception is to be regarded as having been waived.

There remain for consideration plaintiff's prayer numbered 2 1/2, and defendant's prayer A, both of which raise the same question, namely, whether in a case like the present, the doctrine of res ipsa loquitur is applicable. That it can be invoked on behalf of the plaintiff is the theory of his prayer, and that it can not be, is the theory of the defendant's prayer. In the argument before this Court the appellant sought to justify its position by three propositions, first, that in the relation of master and servant, the master is never an insurer of the servant's safety, and that he has performed his whole duty when he has exercised reasonable care in providing a safe place for the servant to work in, and exercised proper inspection with regard to the place; and, secondly, that if there was negligence in the present case, it was the negligence of a fellow servant for which the master can not be held to respond in damages; and, thirdly, that the doctrine of res ipsa loquitur can never apply in a case arising between master and servant. In regard to the first of these contentions it is sufficient to say, that while it is perfectly true that the master is not an insurer of the servant's safety, his duty as regards the servant is non delegable, and the question whether there was or was not adequate inspection under the circumstances testified to in this case, was rather a question for the jury than a question of law for the Court. The second proposition of the appellant assumes that there was negligence shown in the case, but claims it to have been the negligence of a fellow servant. But whether the negligence was the original negligence in the construction of the tower by one properly to be classed as a fellow servant, or whether it was the negligence of the defendant in inadequate inspection, was also a question of fact for the jury to determine from the evidence. The rule applicable with regard to the negligence of the fellow servant in a case between master and servant, where there is an intervening contractor, has been so recently fully stated in the able opinion by JUDGE THOMAS, in Penn Steel Co. v. Nace, 113 Md. 460, that is not now necessary to repeat it, and it will be sufficient to ascertain whether the Court below was correct in instructing the jury as was done by prayer No. 2 1/2, that "the falling of said bridge or a part thereof, if the jury find the same, is primafacie evidence of negligence on the part of said defendant, the said B. O.R.R. Co."

By the plaintiff's prayer No. 8 joined with the defendant's second prayer, the jury were told that the plaintiff was not entitled to recover unless the jury found that the said company was guilty of negligence, either in the construction of, inspection or maintenance of the false work, the collapsing of which is claimed to have caused the accident. We thus have the jury told in one instruction that the mere falling of the false work was prima facie evidence of negligence, and in another that the plaintiff's right to recover could not be maintained unless the jury found the company guilty of negligence. It is, of course, evident that if the jury found positive acts of negligence, either in the construction, inspection or maintenance of the false work, no harm was done to the defendant by the granting of the plaintiff's prayer No. 2 1/2, while on the other hand, if the jury found no evidence of negligence except the accident itself, then serious injury resulted to the defendant from the two instructions.

The evidence in this case shows the construction of false work for a large and very heavy railroad bridge, specially designed to bear great weight and resist the vibration necessarily incident to the passage of the trains over it, constructed under the direction of eminent engineers and in actual use for about two months, suddenly collapsing, failing to accomplish the very end for which it was planned and built, and for which collapse no adequate explanation has been offered by the defense, though one is suggested in the evidence of the plaintiff, in that the supports of one of the towers were out of plumb, or had sprung or buckled. In the case of Howser v. C. P.R.R. Co.,80 Md. 146, what would constitute a proper case for the application of the doctrine of res ipsa loquitur was thus stated by JUDGE ROBERTS, "where the thing is shown to be under the management of the defendant or his servant and the accident is such as in the ordinary course of things does not happen if those who have the proper management, use proper care, it affords reasonable evidence in the absence of explanation by thedefendant that the accident arose from want of care." This was said in a case, not between master and servant, but where some cross ties fell from a passing train upon the plaintiff, who was not on the right of way of the railroad company, and severely injured him, and in which case no evidence whatever was attempted to be introduced by the defendant to show care either in the loading of the ties, or inspection of them after being loaded; and among the authorities relied on in that case was Kearney v.London, Brighton and South Coast R.W., L.R. 5, Q.B. 411, which case was decided by a divided Court.

In a number of states, and especially in the Western States, there has been a marked disposition to extend the idea that negligence was deducible from the fact of an accident without any positive evidence of negligence on the part of the defendant. This has been in part due to the adoption of what are known as "workman's compensation acts," and in some states without the intervention of the legislature, courts have shown an inclination by their decisions to engraft such a doctrine into their law. That has not, however, been the policy of this State, and decision after decision of this Court might be cited to illustrate this fact. It has always been the policy of the Courts of Maryland to interpret and administer the law rather than to make it, and if a change is to be made in our settled policy, it should be by the law-making branch of the State, not by a usurpation by the judicial branch of legislative functions.

Two cases were cited and relied upon by the appellee as tending to support the theory that the mere happening of the accident constituted a prima facie case of negligence, yet each of them when closely examined, disclose acts of negligence testified to, sufficient to have carried those cases to the jury. The class of cases in which the doctrine of res ipsa loquitur is applicable is under our decisions very much restricted, but it is not meant by this opinion to say that cases may not arise where it can be properly invoked as between master and servant, but a reference to some of our cases will show that this case does not come within that class. Thus in the case of the Winkelman BrownDrug Co. v. Colladay, 88 Md. 78, the doctrine was invoked, and the defendant offered no evidence whatever, but in passing upon that case this Court expressly said, that "apart from the presumption of negligence there was evidence, if the jury believed it, tending to prove negligence on the part of the company."

And in the South Baltimore Car Works v. Schaefer,96 Md. 88, this Court refused the right of the plaintiff to recover, where the sole evidence of negligence was the fact that a sharp knife on a rapidly revolving cylinder broke and flew off, injuring the plaintiff; and in Stewart Co. v. Harman,108 Md. 446, the application of the doctrine was denied, where the sole evidence of negligence was that a large pane of plate glass fell upon and injured the plaintiff; and also in the ElevatorCo. v. Neal, 65 Md. 438, in a very able opinion by the late CHIEF JUSTICE ALVEY, it was said that "the jury should not have been allowed to infer from the simple fact of the happening of the accident, that there was negligence or unskillfulness."

In view of these repeated decisions, it appears to this Court that there was error both in granting plaintiff's prayer No. 2 1/2, and in refusing defendant's prayer A, and that the judgment must therefore be reversed; but inasmuch as there was evidence from which the jury might properly have found negligence in construction, or neglect or inadequate inspection, the case will be remanded for a new trial.

Judgment reversed, and case remanded for a new trial, withcosts to the appellant.