197 Md. 632 | Md. | 1951
delivered the opinion of the Court.
This is an appeal from a judgment rendered in favor of the appellee for the death of Delpha H. Rodeheaver, killed when run over by appellant’s train in Oakland, Maryland. The suit was brought under the Federal Employers’ Liability Act, (the Act), it being alleged that he was engaged in interstate commerce at the time of the accident.
In September, 1948, the State Roads Commission of Maryland, (Commission), began repairs on the Oak Street bridge in Oakland, Maryland, and employed the firm of Lattimore Construction Company to do the work. In order to make these repairs it was necessary to suspend scaffolding under the bridge over the appellant’s tracks with a clearance of only a few feet above the trains. Double tracks of the main line of the appellant ran east and west through the town of Oakland and under this bridge. About one block west of the bridge there was a grade crossing at Oak Street. There was a sharp left curve in the tracks between this grade crossing and the bridge. When trains passed under the scaffolding they created quite a danger for the men working thereon. Unless they removed themselves in ample time, hot steam, smoke and cinders from appellant’s engine would inflict serious injury. In order to safeguard these employees the Commission requested the appellant to put a watchman there. The appellant posted bulletins advertising for a man qualified to do this work. Mr. Morrison, the superintendent of the Cumberland division for the
On October 20, 1948, Train No. 96, a loaded 67 car freight train, left Terra Alta, West Virginia, at 3:43 P.M. to travel through Oakland. The trainmen on that train had received a special order to “look out for scaffolding suspended under bridge 87-B, concrete overhead bridge at Oakland, Maryland, which will not clear man on car. Between 7:30 A.M. and 4:00 P.M., daily, except Sunday, sound whistle as warning to men working on scaffolding and reduce smoke as much as possible.” Train No. 96 was shifted from the eastbound track to the westbound track at Terra Alta to allow the Cincinnatian also eastbound, to use the eastbound track. No. 96 traveling east struck and killed the decedent, Rodeheaver, who was walking east on Track No. 1, with his back to the train about 80 feet east of the Oak Street Bridge. No. 1 Track was the usual westbound track.'
Appellant claims that the decedent was engaged in intrastate and not interstate commerce at the time of his death and therefore that his case does not come under the Federal Employers’ Liability Act. Prior to the
In Albright v. Pa. R. R. Co., 183 Md. 421, 431, 37 A. 2d 870, this Court held that this 1939 Amendment should be liberally construed to effectuate the intention of Congress. There was evidence that it was the duty and custom of the deceased, not only to warn the men working on the bridge, but to prevent appellant from injuring them; also to warn any of their men “down on the tracks or crossing the tracks”, and also the crews of the trains of his admitted employer, the appellant. As pointed out in Chicago M. St. P. & P. R. Co. v. Kane, 9 Cir., 33 Fed. 2d 866, whether an employee is engaged in interstate commerce within the Act depends on the facts of each particular case. It certainly could not be judicially declared in the instant case that no part of Rodeheaver’s duties as an employee was in the furtherance of interstate commerce or that his duties did not in some way directly or closely and substantially affect interstate commerce. Even before the 1939 Amendment it had been held that a crossing watchman in the employ of a railroad which operates in interstate commerce, whose duty it was, among other things, to prevent injury from trains, was engaged in interstate commerce under the Act. Southern Pacific Co. v. Commission, 174 Cal. 16, 161 Pac. 1142.
Federal Court cases since the 1939 Amendment seem to refute appellant’s contention. A repairman injured while making installations in coal cars was engaged in the furtherance of interstate commerce within the meaning of the Act. There the employer did not press the argument that the employee was engaged in intrastate commerce. Skidmore v. Balto. & Ohio R. R. Co., 2 Cir., 1948, 167 Fed. 2d 54. A tinsmith employed in the railroad repair shops, the facilities of which were used in interstate commerce, was within the Act, even though he had received a workmen’s compensation award. Bretsky v. Lehigh Valley R. R. Co., 2 Cir., 1946, 156 Fed. 2d 594. An employee operating a crane used in repairing freight cars, which were employed in both intrastate and interstate commerce, was within the Act. Shelton v. Thompson, 7 Cir., 1945, 148 Fed. 2d 1. A mechanic’s helper injured while repairing the stoker of a locomotive which had been used in interstate commerce, and which was intended for further use therein, was within the Act. Edwards v. Balto. & Ohio R. R. Co., 7 Cir., 1942, 131 Fed. 2d 366. A brakeman engaged in the moving of “dead” engines to a repairshop, which engines had been employed before and were to be employed after-wards in interstate commerce, was within the Act. Ermin v. Penn R. R. Co., D. C., 36 Fed. Supp. 936. State cases also seem to support the appellee here. A boiler-maker engaged in intrastate commerce five days a week but who worked in interstate commerce the sixth day was held within the Act. Wright v. New York Central R. R. Co., 1942, 263 App. Div. 461, 33 N. Y. S. 2d 531. An employee working in the “back shops” of a railroad on disabled and “dead” engines, some of which are used
In its fourth prayer the appellant asked the court to instruct the jury “that if they find from the evidence that the éngineer of the Railroad Company had sounded his whistle in due time to warn the deceased, Delpha H. Rodeheaver, of the approach of the train, that there was no duty on the part of the Railroad also to inform the deceased that the train was not being operated on the usual or accustomed track.” Appellant claims that this prayer should have been granted because the failure to warn decedent of the eastbound train on westbound track was not evidence of negligence or a proximate cause of the accident. There was evidence that except for the usual warning at a crossing, 800 yards west of the bridge, no warning was given. As hereinbefore recited, the train at the time of this accident, was proceeding east on the track usually used for trains bound in a westerly direction. Appellant’s superintendent testified that it was not only the duty of the deceased to warn the em
During the trial, the appellant made the following proffer: “That the overhead bridge in Oakland, the repair and construction of and maintenance of it is entirely with the State of Maryland and the Baltimore and Ohio Railroad Company has no responsibility in any manner for the maintenance of the same, and under the agreement with the State Roads Commission was to save it harmless from all loss, cost, damage, or expense or claims therefor for injury to persons or damage to property in any manner due to or connected with or growing out of the erection of said bridge or its main
The appellant’s “D” prayer asked the court to instruct the jury “that from all the evidence in this case the proximate cause of the injuries of the plaintiff’s decedent was his negligence in stepping upon the westbound track without first looking to the west and, therefore, the verdict of the jury must be for the defendant.” This prayer was refused and the appellant here claims that the trial judge should have ruled that the appellant’s own negligence was the proximate cause of the accident. There was testimony that the whistle was sounded near the depot, 800 yards west of the bridge, but that the danger signal was not given as the engine approached the bridge. Mr. Hayden, the crossing watchman for the appellant, testified that from the signal light in his shanty he knew that the train was on No. 1 track. He saw Mr. Rodeheaver up under the bridge or just a little east of the bridge. He walked out and pointed to No. 1 track and pointed west. “The men had their scaffold on a cable and he was hollering to them. Of course, they had an air compressor going and I couldn’t hear what they were saying and they kept pulling back clear of No. 1 track and, of course, I thought he had got my signal, that the train was coming on No. 1 track * * * I had some school children, was around the crossing, and I was watching them pretty close, and I never looked around until after the train had crossed the crossing, and I looked up under the bridge and it looked like
In Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 63 S. Ct. 444, 87 L. Ed. 610, an employee was between two tracks, with his back to one, and a train proceeded down the track behind him, after ringing its bell. The Supreme Court there held that the question of negligence was for the jury, even though a company rule advised employees that they must watch out for themselves, since no employee was assigned to do so. The Court’s decision is predicated mainly upon the fact that assumption of risk is no defense to the railroad under the Act, and upon the fact that the employee was given no special warning, other than the ringing of the bell. In Keeton v. Thompson, 326 U. S. 689, 66 S. Ct. 135, 90 L. Ed. 405, reported below at 183 S. W. 2d 505, a conductor fell from the car while a coupling was being made. Everyone else on the train testified that the jolt was an ordinary one, accompanied only by a slight jar. The coupling was described as “very light and easy”. Two men stationed in the cab testified that they felt no jolt or jar, and there was evidently no other complaint. It was held that a question for the jury was presented. In Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740, 90 L. Ed. 916, brought under the Act, the body of an employee was found sometime after the accident. There were no direct witnesses to the tragedy. Plaintiff surmised that he had been struck by a mail hook hanging out from the train, although he would have had to be standing, on a mound of earth to have been struck by the hook and although the position of his body was such that if he had fallen instantly he could not have been standing in such a position. The Court, in allowing the case to go to the jury, said that he might have wandered in a daze after being struck. There was no other evidence that he had been standing on a mound. In Lillie v. Thompson, 332 U. S. 459, 68 S. Ct. 140, 141, 90 L. Ed.
The appellant in its twelfth prayer asked the court to instruct the jury “that the evidence in this case establishes that the deceased knew that a train was approaching from the west in time to have removed himself from a place of danger, and that therefore any failure on the part of the defendant to sound a warning whistle was not a proximate cause of the accident.” This prayer was properly refused because there is not the slightest evidence in the case to show that the deceased knew that the eastbound train was proceeding on the westbound track. Also, as hereinbefore decided, under the discussion of appellant’s fourth prayer, the jury could have found that the failure of the appellant to sound a warning whistle was the proximate cause of the accident.
In its third prayer the appellant asked the court to instruct the jury “that the speed of the railroad train
In Early v. New York Central R. R. Co., 333 Pa. 471, 5 A. 2d 110, the Court held that even if the train had been operated at an excessive speed this was not the proximate cause of the .accident, the crucial test being whether proper warning of the approach of the train was given. See also Kelly v. Director General of R. R., 274 Pa. 470, 118 A. 436; Dixon v. Texas & P. Ry. Co., (Tex.), 164 S. W. 2d 252; Conant v. Grand Trunk Ry. Co., 114 Me. 92, 95 Atl. 444. In Hammer v. Minneapolis, St. P. & S. S. M. Ry. Co., 216 Wis. 7, 255 N. W. 124, 125 (1934),.suit was entered to recover damages for the death of the deceased who was run over and killed by the railroad in the city of Superior. Wisconsin had a comparative negligence act. The speed of the train and failing to give proper warning at a street crossing were found to be the causes of the accident. The court found as a matter of law that the decedent was contributorily negligent. The jury found that 85 per centum of the total negligence was attributable to the defendant and 15 percentum to the decedent. In reversing and remanding the case for a new trial because there was no evidence to sustain the finding of the jury that the speed of the train had any causal relation to the accident, the court said: “There is evidence that the train was moving at a speed of from 25 to 30 miles per hour.
Finding that under all the evidence the speed of the train had no causal relation to Mr. Rodeheaver’s death and that appellant’s third and ninth prayers should have been granted, the judgment will be reversed and the case remanded for a new trial.
Judgment reversed with costs, and case remanded for a new trial.