Maryland Clay Co. v. Goodnow , 95 Md. 330 ( 1902 )

This suit was brought by the appellee against the appellant to recover damages for an injury alleged to have been sustained by him, through the negligence of the defendant. The appellant is a corporation duly incorporated under the laws of the State and conducts a kaolin plant near the town of North East, in Cecil County. At the time of the accident it was engaged in the business of refining clay and operated a railroad and cars for the purpose of carrying clay from the pits where it was dug to the works where it was refined. The plaintiff was employed by the company as a laborer for the purpose of unloading the clay from its cars and while so employed was knocked off the car where he was at work and was permanently injured by being run over by a wheel of one of the defendant's cars.

The declaration contains three counts. The first avers that the defendant had constructed its railroad in a defective and improper manner, and that by its negligence the end of the track upon the trestle of the road was unguarded by a bumper, or any device whatever, to prevent the cars, upon which it was necessary for the plaintiff to work, from being thrown over the end of the trestle. The second count avers that by the negligence of the defendant the cars used by it upon its railroad were without brakes or other contrivance of that nature, which the defendant knew but of which the plaintiff was ignorant. The third count alleges that the accident was due to the combined causes alleged in the first and second counts.

The defendant pleaded not guilty and the judgment being in favor of the plaintiff, the defendant has appealed.

It will be thus seen that the contention of the appellee in this case is, first, that the accident was due to the absence of a bumper at the end of the trestle, and second, to the failure of the defendant to have brakes upon the cars carrying the dirt trains.

There are a number of questions raised by the rulings of the Court on the prayers presented at the trial below but we only deem it necessary for the purposes of this case to consider the action of the Court in rejecting the defendant's first prayer, and that reads: "There is no evidence of any such negligence on the part of the defendant in the discharge of its legal obligations to the plaintiff as entitled him to recover in this action." This prayer, which was rejected by the Court below, raised the question of the legal sufficiency of the evidence and of the right of the plaintiff to recover, under the evidence, in the case.

It appears from the evidence that the plaintiff had been employed as a laborer by the defendant company from September, 1896, to April 21st, 1898, but during the construction of the railroad trestle had been employed to work around the company's sheds together with other workmen in loading and unloading cars at its koalin works. It further appears that the defendant operated a railroad and cars for the purpose of carrying the clay from the clay pits, which were located in the nothern part of the company's property, to the sheds or works in the southern part, where the clay was dumped from the cars to be refined; that in transporting the clay from the pits to the works it was necessary to cross the tracks of the P.W. B. Railroad which passed east and west through the defendant's property, and that the defendant's works were located between the North East river and the tracks of the last mentioned railroad.

A bridge had been built over the railroad tracks and a trestle from the pit above the railroad to the bridge, and from the bridge to the sheds below the railroad. The clay was hauled from the pits to the works on the river, "in cars drawn by an engine over the tracks which crossed the railroad on a bridge about thirty feet high and then to the works, where the cars were unloaded; that the tracks below the bridge are located on a trestle which is about thirteen feet high and terminating about 427 feet below the bridge, there being an incline from the bridge to the river of about 300 feet, the grade being about six feet, but that the track was level for the rest of the distance to the end of the trestle;" "that across the tracks at end of the trestle there was at the time of the accident an ordinary railroad cross tie fastened by ropes to keep the cars from being thrown over the end of trestle, the cross tie being six by eight inches."

The plaintiff testified that on the evening of the 20th of April "he went to the pit and helped to load four cars, and went from the pit home leaving the cars standing there; that on the morning of the 21st he returned to the works and found four cars standing at the same place where he had before unloaded them, and he and the other workmen, two others, climbed up to the trestle and began to unload; that these cars were standing on the track the last car reaching to the end of the trestle; that he and the other workmen had unloaded two of the cars and were unloading the third; his back being toward the bridge, when suddenly, a fellow workman, who was facing the bridge, threw his shovel down and leaped from the car; that he turned and saw the train of five cars descending the track from toward the bridge and within six or eight feet from the train in which he was working, that he turned in an effort to escape, but at that instant the leading car of the descending train struck the train in which he was working and he was thrown head foremost from his car, falling with arms across the iron rail of the track; that one of the cars of the stationary train ran over his arm, crushing it so that it had to be amputated up to the shoulder; that he was at the time unloading the third car from the end of the trestle, so that there was a car between him and the descending car train."

The evidence further shows that the dirt train which was in charge of workmen employed by the defendant company was hauling dirt and dumping it into the trestle south of the bridge. This train was composed of an engine and five cars, only two of the cars had brakes, and one of these was broken; that small blocks of wood, about two inches thick, were used by the train men to block the wheels in the place of brakes. As soon as the engine was detached and the first dirt car was dumped the jar started the five cars down the incline (the brake and the blocks not being sufficient to hold the cars) and struck the stationary train, where the plaintiff was at work, and injured him.

At the time of the accident, there were four men with the train named Parrott, Lynch, Page and an Italian. A workman named Moore had charge of the dirt train and it was his duty to keep the machinery in repair. The dirt train was made up according to Moore's orders, and he directed the particular cars to be used, and told the workmen to use short blocks of wood six or eight inches long to hold the cars on the incline while the dirt was being dumped from the cars; that the company had twenty cars and five of these had brakes.

Now we do not consider it necessary to review the testimony at length, nor to discuss it in detail, because we think, it clearly appears from what has been stated that the immediate and ditect cause of the accident was the absence of brakes on the dirt train, operated by the defendant. There can be no difficulty in this State as to the rule of law applicable to a case like this where a servant sues his master for injuries resulting from the negligence of a fellow servant. All of the cases hold that one of the risks which the servant takes upon himself when he enters the service of a master is the negligence of fellow servants. The law upon this subject has been fully considered by repeated decisions of this Court. Wonder v. The B. O.R.R.Co., 32 Md. 411; State v. Malster Reaney, 57 Md. 287;Yates v. McCullough Iron Co., 69 Md. 370; Mayor and CityCouncil of Balto. v. War, 77 Md. 593; O'Connell v. B. O.R. Co., 20 Md. 212.

We have examined the testimony in this case with great care, and we can find no proof whatever of any such negligence on the part of the master as would make it liable in this action. The cause of the injury, it seems to us, was not due to any negligence on the part of the master, but it was solely caused by the use of a car by a fellow servant with a defective break, instead of using one with a good brake. There were three other cars with safe brakes which had been provided by the company and which could have been used on the day of the accident. It is clear, we think, that the master cannot be held liable in this case for the carelessness and negligence of the fellow servant in using the car with a defective brake, which caused the injury. InYates v. McCullough Iron Works, 69 Md. 385, it is distinctly said: If the servants "are in the employment of the same master, engaged in the same common work, and performing duties and services pertaining to the same general business, the master cannot be held liable to the one servant for injuries caused by the negligent or unskilful conduct of another, unless he has been negligent in employing or retaining in his service such negligent servant."

There is not a particle of evidence to show that the master had not exercised reasonable care in the selection of its employees or in retaining negligent ones in its service. There is no dispute as to the extent to which Moore, Parrott and Lynch, were representatives of the company, and it is admitted that under the evidence, they were fellow servants of the plaintiff.

But it is contended by the appellee that the result of the accident was not only due to the failure of the appellant to have brakes upon its cars, but to the want of a bumper at the end of the trestle. Now if we concede the appellee's contention in this respect we are brought to the same conclusion as in the case of the broken brake, and that is that under the facts of the case it was the negligence of a fellow servant. The witness Seeds testified that he was employed by the defendant company to build the trestle or a portion of it where the plaintiff was injured and the work was done under the direction of the company's superintendent, Mr. Walker. We find nothing in this case that would bring it within the exception to the general rule that a superintendent or manager is a fellow servant within the rule which exonerates the master. Moran's case, 44 Md. 293.

To make the superintendent a vice-principal so as to hold the master liable for his negligence the latter must relinquish all supervision of the work and entrust not only the supervision and direction of the work but the selection and employment of laborers and the procuring of materials, machinery, c., necessary for the service. The proof in this case does not march up to the requirement of the rule just stated. Balto. ElevatorCo. v. Neal, 65 Md.; N.P.R.R. Co. v. Herbert,116 U.S. 642.

But it is insisted upon the part of the plaintiff, that the negligence of a fellow servant will not defeat the right of action, if the negligence of the company materially and approximately contributed to the injury. The answer to this contention is that the present case does not come within that rule. According to the evidence here the company had exercised reasonable care in the selection of competent fellow servants and in the procuring of proper and suitable machinery. The plaintiff had been employed unloading cars at the same place where the accident occurred on the 18th, 19th and 20th of the same month, and the cars had not moved while they were at work on those days. He testified that the track at that point seemed perfectly level and when they wanted to move the cars they had to use crowbars. The direct cause of the injury, as we have said, was the use of the car with a broken brake and for the negligence and carelessness of the fellow servant in using this car, when there were other good and safe cars, which had been provided by the company, the defendant cannot be held liable.

For the error then in refusing to grant the appellant's first prayer which instructed the jury that there was no evidence of any such negligence on the part of the defendant, as entitled the plaintiff to recover, the judgment will be reversed, and as there can be no recovery, a new trial will not be awarded

Judgment reversed, and new trial refused, with costs.

(Decided January 30th, 1902.) A re-argument on the question whether the case should have been allowed to go the jury was had at the October Term, 1902, and on November 20th, 1902, the Court passed an order re-affirming the judgment of reversal for the reasons given in the foregoing opinion.

PEARCE, J., dissented and delivered the following opinion.

My convictions of the principles which should control the decision of this case are so strong that I am constrained to dissent from the opinion of the Court, though I am aware that dissenting opinions are very often, and sometimes correctly, regarded as idle if not pernicious work; nevertheless they are sometimes justified in order to relieve the dissenting Judge from the imputation of that which, unexplained, might appear to be merely captious difference or obstinate adherence to individual opinion.

After stating such facts as the Court considered necessary for the proper understanding of the case, the opinion says: "We only deem it necessary for the purposes of this case to consider the action of the Court in rejecting the defendants' first prayer, which reads as follows: "The defendant prays the Court to instruct the jury that there was no evidence in this case of any such negligence on the part of the defendant in the discharge of its legal obligations to the plaintiff as entitles him to recover in this action;" * * "and we think it clearly appears from what has been stated, that the immediate and direct cause of the accident was the absence of brakes on the dirt train operated by the defendant. * * The cause of the injury, as it seems to us, was not due to any negligence on the part of the master, but solely to the use of a car, by a fellow servant, with a defective brake, instead of using one with a good brake. But it is contended by the appellee that the result of the accident was due not only to the failure of the appellant to have brakes upon its cars, but to the want of a bumper at the end of the trestle. Now if we concede the appellees' contention in this respect, we are brought to the same conclusion as in the case of the broken brake, and that is, that under the facts of the case, it was the negligence of a fellow servant. The witness Seeds testified that he was employed by the defendant company to build the trestle, or a portion of it, where the plaintiff was injured, and that the work was done under the direction of the company's superintendent, Walker. We find nothing in this case that would bring it within the exception to the general rule that a superintendent or manager is a fellow servant within the rule which exonerates the master."

I have reproduced the above passages from the opinion of the Court, and have put them in juxtaposition, because, so placed, they tersely and clearly present the whole view of the case taken by the Court. The seventh prayer of defendant was clearly designed by its counsel, and understood by the Court in granting it, to apply only to the second count, which charged the injury to be the result of using cars without brakes. By that prayer the jury was instructed that if they believed the accident was caused by the negligence of the fellow servants of the plaintiff, then the plaintiff was not entitled to recover, and further that Moore, Parrott and Lynch, by whom the dirt train was made up and operated, were fellow servants of the plaintiff. That it was intended to apply only to the second count is manifest from the refusal of the Court to grant the defendant's first prayer, for if the Circuit Court had held, as this Court has done, that the want of a bumper at the end of the trestle was the negligence of a fellow servant, it must necessarily have granted that prayer, since only two causes of the accident were alleged, and if both of these arose from the negligence of fellow servants, then neither cause, nor both combined, could warrant a recovery. The theory therefore upon which the rulings of the Circuit Court were made upon the first and seventh prayers of the defendant was that the want of brakes upon the dirt cars was the negligence of fellow servants for which no recovery could be had, but that the want of a bumper at the end of the trestle was not the negligence of a fellow servant, but that of the master, for which recovery could be had upon proper proof, and that there was evidence in the case to go to the jury from which they could find that such negligence caused, or contributed to, the injury complained of. To my mind it is clear that these rulings were correct, and in endeavoring to maintain this position it is necessary before considering the principles upon which the granting or rejection of defendant's first prayer must depend, to refer to the testimony supporting the theory upon which it was refused by the Circuit Court.

The undisputed proof is that the trestle is thirteen feet above the ground and without a bumper of any description to keep the cars from being thrown from the end; that to supply this defect in the construction of the trestle, an ordinary railroad tie, 6x8 inches, was placed across the track near the end of the trestle, and was fastened with ropes. The plaintiff testified that at the time of the accident there were four cars loaded with clay standing on the trestle, the last car being near the end of the trestle, that he was standing on the third car from the end, unloading it, when his fellow workman leaped from the car, that he turned and saw the descending dirt train within six or eight feet of the car in front of him; that he made an effort to escape, but at that instant the approaching cars struck the car in front of him with such force as to throw him upon the track, and drive back the cars on which he was working, and that the car of his train in front of him passed over his arm, which had to be amputated at the shoulder. He testified that he had never seen the trestle until he was told to go to work there April 18th, and he was injured April 20th, and that he did not know the absence of a bumper, or the substitution of a cross tie in its place, and that neither the absence of a bumper nor the cross tie could be seen where he worked, nor from the point where he approached and got upon the trestle.

James L. Baker testified that he had worked all his life for the P.W. B.R. Co., building, repairing and maintaining railroad tracks, and was familiar with cars and brakes, sidings and bumpers, and with the trestle on which the accident occurred, he being the section boss of the P.W. B.R. Co. at that point; that he had never seen such a trestle without a bumper to hold the cars; and that it was unsafe and dangerous without a bumper; that the cross tie used in its place was insufficient and unfit for the purpose, and could not be seen unless one stood at the end of the trestle in front of it, or some distance to the side at that point; that he witnessed the accident from a distance of about 200 yards, saw the dirt train strike the other cars, saw plaintiff fall and the car pass over him, and saw two of the cars driven off the end of the trestle and fall to the ground; that this could not have occurred if there had been a bumper, and that even if the blow had been sufficient to throw the plaintiff on the track, the bumper would have held the cars, and plaintiff could not have been run over, and that in his judgment the want of a bumper caused the accident.

Wm. F. Seeds testified that he was a contractor and was employed by the defendant to extend this trestle about 150 feet, doing the work under the direction of the company's superintendent, Mr. Walker. That when the extension was completed, Walker told him to go to work in the clay troughs; that he told Walker there ought to be a bumper at the end of the trestle to hold the cars, as it could not be safely used without it, and that he asked Walker to allow him to put a bumper there, but Walker said he would attend to that, and sent him to the troughs; that he had seen and built a number of such trestles, but had never built or seen one without a bumper, and that this structure was dangerous without one, and that Walker put on the trestle the cross tie used in lieu of a bumper; that he witnessed the accident and that if there had been a proper bumper the cars on which plaintiff was could not have been moved, and plaintiff could not have been injured in the manner that he was.

This testimony was absolutely uncontradicted, and if it does not establish negligence in the construction of the trestle, I am at a loss to understand how it could be established by any testimony. But the Court holds that if it be conceded there was negligence in the construction of the trestle, it was nevertheless the negligence of a fellow servant, because Seeds testified he built the extension of the trestle under the direction of Walker, the company's superintendent, and because Walker was also a fellow servant within the rule which exonerates the master. To this conclusion I find it impossible to assent. It is doubtless true that for some, indeed for many purposes, as illustrated by the language of this Court in Wonder's case,32 Md. 411, and the cases which have followed it, that in the mereoperation of machinery or appliances free from defect or danger when provided by the master, but in which dangerous defects have developed by use, an inspector of machinery or a superintendent of operation, may be a fellow servant for whose negligence there can be no recovery, though there is manifest a tendency in many of the Courts of this country to qualify this rule by requiring of the master the same care to maintain as to provide safe machinery and appliances, and the same liability for neglect in this regard. How far this Court has evinced such disposition, it is not material here to inquire. But as I understand the law, it is every where held that it is the master's duty to provide a safe place for the servants work, and that under no state of facts, except where contributory negligence of the plaintiff is established, can a master relieve himself of liability for this neglect of duty, and in this case there is no question of contributory negligence on the plaintiff's part. In American Tobacco Co. v. Strickling, 88 Md. 504, this Court cited with approval the following passage from B. O.R.R. v. Baugh, 149 U.S. 368: "A master employing a servant impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe," and as especially applicable to the case now under consideration, I cite a passage from the same case on the same page. "Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits, the master who provides the place, the tools and the machinery, owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guarantee of safety, but it does require that reasonable precautions be taken to ensure safety, and it matters not to the employee by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the masterfor the discharge of that duty, and if the master, instead ofdischarging it himself, sees fit to have it attended to byothers, that does not change the measure of obligation to theemployee, or the latter's right to insist that reasonableprecaution shall be taken to secure safety in these respects.Therefore it will be seen that the question turns rather on thecharacter of the act than on the relations of the employees toeach other. If the act is one done in the discharge of somepositive duty of the master to the servant, then negligence inthe act is the negligence of the master. But if it be not one inthe discharge of such positive duty, then there should be somepersonal wrong on the part of the employer, before he is heldliable therefor."

In the American Tobacco Co.'s case, supra, there was no such question made as in the case I am discussing, and there was no occasion to cite there that portion of the opinion in B. O.R.R. v. Baugh, which I have reproduced here as bearing directly upon the view taken by the opinion of the Court in this case.

The same law is declared by State Courts of the highest reputation. In Flike v. Boston and Albany R.R., 53 N.Y. 549, CHIEF JUSTICE CHURCH said: "The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter should be deemed present, and consequently liable for the manner in which they are performed." There, a train dispatcher sent out a heavy freight train with but two brakemen where at least three were required, and the train broke in two, and in consequence of the want of necessary brakemen, the rear part ran back and collided with another train killing the fireman, and the corporation was held liable.

In Corcoran v. Holbrook, 59 N.Y. 517, the rule laid down in 53 N.Y. supra, was held applicable as well to individuals as to corporations.

In Paulmier v. Erie R.R., 34 N.J.L. (5 Vroom) 151, where the track over a trestle work was not capable of supporting an engine, and the engineer in charge had orders not to put his engine thereon, which orders he disobeyed, and the fireman on the engine who was not aware of these orders, or of the danger, was killed by the trestle giving way, his administrator was held entitled to recover on the ground that the defendant had not provided a safe place for the work of the servant.

And in Elmer v. Locke, 135 Mass. 575, where a brakeman was injured by the fall of a defective trestle, it was held the master could not escape liability by proving that he delegated to a proper agent the construction and repair of the trestle.

The cases cited are sufficient to establish and illustrate the law they announce, and the reasons upon which it is founded, and the testimony is ample to show that the absence of a bumper, made the trestle an unsafe and dangerous structure for the servants of the defendant, and that but for the negligence of the defendant the accident could not have occurred. Upon both these points the testimony of Seeds and Baker is positive, and it is uncontradicted by any witness or by any circumstance in the case. Both of these are experienced men in railroad matters, and both testified that in all their experience in the construction and use of such trestles, they had never seen one without a bumper. In considering the weight of such testimony in Daniel v. Metropolitan R.R., L.R. 3 C.P. 216, it was observed that "what is usual among practical men in ordinary transactions of life, is cogent evidence of what it is reasonable to do in similar circumstances and the omission to do so is evidence of negligence." In view of the authorities which uniformly charge the master with the absolute duty to provide a safe place for the work of his servants, and of the clear and undisputed evidence which shows that this trestle was a dangerous structure, I am unable to see how the defendant's first prayer could have been properly granted.

But it is said by the Court in this case, that the injury "wassolely caused by the use of a car with a defective brake," and if this be a correct legal conclusion which the Court was authorized to draw, I concede that it is not material that the defendant was guilty of negligence in putting the servant to work upon a dangerous trestle, since negligence which neither causes, nor materially contributes to injury, is not actionable negligence. I cannot therefore properly conclude this opinion without considering this branch of the view of the Court.

In the opinion of the Court, "the immediate and direct cause of the accident was the absence of brakes on the dirt train." I agree that this was the immediate and direct cause of thecollision of the two trains, and that it was therefore the primary cause (primary in point of time) of the injury of theplaintiff, which is the cause of action here; but in my judgment the immediate and direct cause of that injury was the want of a bumper, since according to the uncontradicted testimony in the case the cars could not have moved by the collision if there had been a proper bumper to hold them instead of a cross tie fastened by ropes, and thus the cars could not have passed over his arm necessitating its amputation. It will be observed that it was not the fall from the cars to the track (which might perhaps have occurred if there had been no bumper) that crushed his arm and necessitated its amputation, but the driving back of the car in front of plaintiff, which could not have occurred if there had been a proper bumper. It was for the loss of the arm, and not for the fall upon the track that the verdict awarded the damages given. In Maryland Steel Co. v.Marney, 88 Md. 495, we applied the following language of JUDGE ALVEY in Balt. and Potomac R.R. v. Reaney, 42 Md. 136. "Courts do not indulge in refinements and subtleties as to causation that would defeat the claims of natural justice. They rather adopt the practical rule that the efficient andpredominating cause in producing a given event or effect, though there may be subordinate and independent causes in operation, must be looked to in determining the rights and liabilities of the parties concerned. * * * * And no wrongdoer ought to be allowed to apportion or qualify his own wrong. To entitle him to exemption he must show not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done." A most instructive illustration of the application of this reasoning will be found in a recent Pennsylvania case, Webster v. The Monongahela Coal Co.,201 Pa. 278. In that case plaintiff was a "dilley rider" in defendant's coal mine, the cars on which he rode being drawn out of the mine by means of a wire operated by a stationary engine at the mouth of the mine. In making the trip the cars frequently jumped the track, and in that event the dilley rider was compelled to leave his seat and seek safety in "manholes" or excavations in the walls of the tunnel. On one of these occasions while running to a manhole he was struck on the head by a timber projecting from the roof of the tunnel, and was seriously injured. The company asked that a verdict be directed for it, on the theory that the projecting timber was not the proximate cause of the accident. The Court said: "It is argued by defendant's counsel that it (the projecting timber) was the remote or concurring cause of the accident, and that without the intervening cause of the cars jumping the track, the plaintiff would not have been injured. But the intervening cause will not prevent a recovery if the injury inflicted was the natural and probable consequence of the negligence of defendant in permitting the timber to project from the roof. It cannot be said that the plaintiff's injuries, inflicted by the projecting timber, were a natural and probable consequence of the derailment of the train. That might well have occurred, and the plaintiff not have been injured by the projecting timber. The final result cannot be said to be the natural and probable consequence of the primarycause. On the other hand, it was both a natural and probable result, and one to be anticipted by the company, that a fall in the roof by reason of unsafe and defective timbers might cause an injury to the employees engaged in that tunnel. The proximate cause of the plaintiff's injuries therefore was the intermediate and independent act of the defendant in carelessly and negligently permitting the roof of the mine to remain in an unsafe and dangerous condition. As was said by our brother DEAN, in Sturgis v. Kountz, 165 Pa. 365: "The primary is by no means always the natural and probable cause of a particular injury. It is not, when there is a sufficient and independentcause between it and the injury." And in Moulton v. TheInhabitants of Sanford, 51 Maine, 134, CHIEF JUSTICE APPLETON, speaking for the Court, says: "Ordinarily that condition is usually termed the cause, whose share in the matter is most conspicuous, and is the most immediately preceding and proximate in the event."

In the case above cited, as in the case I am now considering, the question as to defendant's negligence is well stated inHayes v. Mich. Cent. R.R., 111 U.S. 241 as follows: "Was itcausa sine qua non, a cause which if it had not existed, the injury would not have taken place; an occasional cause? And thatis a question of fact, unless the causal connection is evidentlynot proximate." And where defendant has been guilty of negligence, in consequence whereof an injury had been suffered by plaintiff, the same principle was declared in Burrell Township v. Uncapher Township, 117 Pa. St. 362, where the Court said: "It is no answer to say that some one else was guilty of an independent act of negligence without which the injury would not have been suffered."

In Paulmier v. Erie R.R., supra, it was expressly held that where a servant has received an injury occasioned in part by the negligence of his master, and in part by that of a fellow servant, he can maintain an action against his master for such injury, the reason being, as stated by the Court, that "the servant does not agree to take the chance of any negligence on the part of his master, and no case has gone so far as to hold that where such negligence contributes to the injury, the servant may not recover." So in Elmer v. Locke, supra, where a brakeman received injuries caused partly by the defective construction of a trestle and partly by the negligence of a fellow servant, it was held he could recover, the Court saying: "The relation in which those who together manage the train and track for the purpose of transportation, is quite different from that which they bear to those who perform the work of itsconstruction and repair, and they have the right to expect the suitable instrumentalities and appliances which it is the duty of the master to furnish."

In Stringham v. Stewart. 100 N.Y. 516, it is said: "The rule which excuses a master from liability to a servant for injuries caused by the negligence of a co-servant, presupposes that the master has performed the duties which the law imposes upon him, and that no negligence in this respect contributed to the injury."

In Deserant v. Cerillos Coal Co., 178 U.S. 420, the Supreme Court says: "It is undoubtedly the master's duty to furnish safe appliances and safe working places, and if the neglect of this duty concurs with the negligence of a fellow servant, the master has been held liable;" and numerous cases are cited in support of the proposition.

I have referred to the cases above mentioned in order to show the concurrence of opinion upon the point in the Courts of Massachusetts, New York, New Jersey and Pennsylvania, and in the Supreme Court of the United States, and the principle involved in all of them is clearly recognized in Norfolk andWestern R.R. v. Hoover, 79 Md. 260, where it was said by the present Chief Justice "to be the settled doctrine of Maryland that where a servant sues his master for injuries resulting from the negligence of a fellow servant, the plaintiff, in order to succeed, must prove not only that some negligence of the fellow servant caused the injury, but also that the master had himself been guilty of negligence, either in the selection of the negligent fellow servant in the first instance, or in retaining him in his service afterwards." The substantial concurring element thus required to be found is the neglect by the defendant of some positive duty imposed upon him by law. In that particular case the particular duty neglected by the master was that of reasonable care in the selection or retention of the negligent fellow servant, while in this case the particular duty neglected by the master was that of reasonable care to provide a safe working place; and it is impossible, in my opinion, to point out any sound or fair discrimination between the two cases.

If the failure to provide a bumper was negligence on the part of the defendant, then if there was any evidence from which a rational mind could find that such negligence contributed to the plaintiff's injury, the case could not properly be withdrawn from the jury, and I am at a loss to comprehend how, in the face of all the facts, and especially of the positive testimony of Seeds and Baker upon that point, this Court can hold it should have been withdrawn.

In my opinion the learned Judge of the Circuit Court was entirely right in refusing the prayer to that effect, and the judgment should be affirmed.

(Filed February 15th, 1902.)