Buttner v. Steel Car Co. , 101 Md. 168 ( 1905 )

The plaintiff who is the appellant in this case was employed by the South Baltimore Steel Car and Foundry Company as assistant brakeman and to couple cars in its yard.

While in the performance of his duty he was injured, as he alleges, through the negligence of his employer, and he brought an action in the Superior Court of Baltimore City to recover damages as a compensation therefor.

At the close of the testimony of the plaintiff, he being the only witness produced to sustain the allegations of his narr. the learned Judge below, at the request of the defendant, withdrew the case from the jury. Judgment having been entered in favor of the defendant the plaintiff has appealed. The only question, therefore, presented is whether the plaintiff offered any testimony legally sufficient to entitle him to recover. In order to determine this question it will be necessary, of course, to make a careful examination of the testimony, which, however, is embraced in very narrow limits, only one witness, the plaintiff himself, having been examined, as we have seen.

It appears that the defendant company is engaged in Baltimore in the manufacture of steel cars and for that purpose has a factory and a yard attached thereto in which cars containing castings are moved from place to place. The plaintiff testifies that his duty as assistant brakeman was to couple cars and that before he was employed by the defendant he had been for eight months with the Baltimore and Ohio Railroad acting as brakeman and engaged in coupling cars but that the couplings used by the railroad were automatic; that on the 23rd day of September, 1903, while trying to make a coupling he was caught between two cars; that one of the draw-heads (sometimes called bumpers) project out about six or eight inches; that two of them coming together, through defective construction, drew the draw-head back through the sill which caught him in a position where there was only a space of two and a-half to three inches; that he became unconscious and dropped out towards the side when the cars were separated; that he was up in the office of the defendant when he recovered consciousness; that the distance between the sills when in a proper position and the cars are coupled would be from 18 to 20 inches. The witness continued in answer to various questions asked him by his counsel to testify as follows: that the wood of the sill was rotten and the bumper or draw-head "went right through that and it caused" him to be caught between the sills of the cars; that he could not see any defect in the draw-head; that "it was a defect in construction;" that he had never been warned about the old casting cars the defendant used in its yard.

In regard to the nature of his injuries the plaintiff testified that he was in bed the evening of the day of the accident and the next day; he returned to his work with the defendant on the third day after he was injured and remained there for two weeks when he was discharged because he could not perform the duties as he had done before he was injured, and that he was still suffering from the effects of the accident.

Now if this were the only testimony in the case, perhaps, the plaintiff would have had good grounds to complain of the action of the Court below in withdrawing the case from the jury. But the cross-examination of the plaintiff shows clearly that almost all he knows is that he was injured between the two cars and rendered unconscious, and that when he regained consciousness he found himself some distance from the scene of the accident in the office of the defendant.

The theory which it was sought to establish by the plaintiff's testimony appears to be that the cause of the accident was "defective construction" as the witness several times thus described the alleged defect in the coupling, draw-heads or bumpers, and said that on the occasion of the accident both of these draw-heads were pushed back through the rotten wood of the sill and under the car, so that the space where he was standing was reduced from 18 to 20 inches to a space of 2 or 3 inches. But on his cross-examination it was discovered for the first time that on the occasion of the accident he had noticed nothing about the condition of the draw-heads on the particular cars he was coupling. It was some days after the accident that two of his co-employees pointed out to him two cars which were coupled so as to leave only a few inches between them. He was informed these were the cars which injured him. It further appears that all the plaintiff's testimony relative to the condition of the draw-heads was based upon his examination of these two cars. He assumed they were the cars which caused the injury because he was so informed. A motion was made to exclude this character of evidence on the ground that the identity of the cars could not be legally shown in that way, but it was admitted subject to exception. At the close of the plaintiff's testimony the defendant filed a motion to strike out all the evidence of the plaintiff as to the alleged defective condition of the coupling appliances mentioned in the evidence, because it clearly appears that the plaintiff's evidence on this point is based solely on an examination of certain cars some days subsequent to the accident and because there is no legally sufficient evidence as to the identity of the cars so examined with the cars causing the accident. This motion was refused. Without regard, however, to this supposed failure of proof as to the identity of the cars, we are of opinion that the plaintiff has failed to make out a case, assuming all the evidence to be in. And we say this because it appears to be clear there is an utter absence of proof to show what caused the bumpers to give way — or if there was a defect to show the nature of it and that it was one which should have been discovered by a proper inspection.

The general principles applicable to this case have been settled in this State and many others. While the facts are somewhat different here the legal principles involved are the same which were applied in the case of the South Baltimore CarWorks v. Schaeffer, 96 Md. 88. It was there held as there was no evidence that the alleged defect could have been discovered by a proper inspection, nor any satisfactory proof as to what caused certain bolts to break there could be no recovery. And it was expressly held in that case that the sudden and unexplained breaking of an appliance affords no presumption of negligence on the part of the employer. These general principles, as we have said are well settled. In 7 Am. Eng. Ency. of Law, 1056, will be found an article on Injuries resulting from Coupling Cars. The author has treated the subject in a complete and at the same time in a concise manner, and he cites in the notes many interesting and instructive cases to sustain the propositions contained in his text.

It is, of course, the duty of the employer to furnish suitable and safe appliances. If this duty be violated the plaintiff must prove it. But this is not all, for "the plaintiff is met by a further presumption that the employer had no notice of the defect and was not negligently ignorant of it. It is not sufficient to show that the plaintiff was injured and that the injury resulted from a defect in the machinery, but he must go further and estahlish the fact that the injury happened because the employer did not exercise proper care in the premises." 1 Bailey's Per.Injuries (Master and Servant). In the case before us, however, the plaintiff's own testimony shows that the defect was not visible — it was deceiving — and there is not only no evidence that the defendant had notice of the alleged defect, but there is also a total absence of proof to show that the defect, if any, was such as could have been discovered by the employer by the exercise of proper care and caution.

Much reliance was placed by the appellant upon his testimony in reference to the rottenness of the sills through which the couplings ran, and it may be conceded that if we could view that testimony in the same light in which it was presented to us by the able counsel for the plaintiff, to say the least, we might have some doubt, as to the ruling of the Court below. But it is apparent from the testimony relied on, that the drawheads or bumpers were not held in position by the sills, that the sills were for the brakeman to stand on in climbing; that the drawheads go right through the sill and are fastened to the car underneath. It does not appear, therefore, that the rottenness of the sills had anything to do with the injury to the plaintiff. In a case like this the plaintiff must prove either that the defendant did not exercise due care in procuring sound machinery, Hanrathy v.N.C. Ry. Co., 46 Md. 280, or that there was some defect in it which could have been discovered by the employer by a proper inspection. There is no such proof in this case. It is true the cars are spoken of as "old casting cars." But while the employer is bound to use due care and diligence in providing safe and sound machinery, he is not bound to provide every new appliance or supposed improvement. Wonder v. B. O.R. Rd., 32 Md. 411.

Judgment affirmed with costs.

(Decided March 22d 1905.)