115 A. 59 | Md. | 1921
This suit was brought by the Variety Iron Steel Company for the benefit of the Aetna Life Insurance Company and Harry Alles, against the Bethlehem Steel Company, to recover for injuries sustained by Harry Alles and alleged to have been caused by the negligence of the defendant, and the present appeal is from a judgment in favor of the plaintiff for $10,000.
Prior to April, 1919, the defendant, the Bethlehem Steel Company, hereinafter referred to as the steel company, had contracted with the Bethlehem Steel Bridge Corporation, hereinafter referred to as the bridge company, and a number of other contractors, for the erection of a large building, about one hundred feet wide and nearly four hundred feet long, known as gas engine house No. 2, at Sparrows Point, Maryland. The bridge company had the contract for the placing of the steel floor beams, spoken of in the evidence as I-beams, upon which the concrete flooring above the cellar or basement of the building was to be constructed after the engines, pipes and machinery were installed, and the Variety Iron Steel Company, hereinafter referred to as the Variety Company, contracted for the installation of the gas main or pipe, which was located under and was to be suspended from the floor or I-beams. These floor beams, which were from eight to ten feet long, weighed from one hundred and fifty to two hundred pounds and were about six or eight inches deep, ran across the building from the side wall of the building to larger beams, about fifteen inches deep, supported by columns between the concrete engine foundations, and one end of the floor beams was supported by being fitted into a pocket *316 in the concrete wall of the building, while the other end rested on a bracket, about four inches wide, placed on the side of the columns, to which, after all pipes, etc., were installed, it was to be permanently bolted and riveted.
After the bridge company had placed all the floor beams in position, and, according to the evidence produced by the defendant, had bolted all of them to the brackets, the work of that company was temporarily suspended in the winter of 1917-1918, and was not completed until some time after the accident hereinafter referred to.
In the spring of 1919 the steel company notified the Variety Company that it was ready for it to proceed with its work of installing the gas main, and accordingly the Variety Company sent a number of its employees, one of whom was Harry Alles, to perform its contract. The gas main was a large iron pipe, about four and a half feet in diameter, and had been shipped to the defendant's building in sections from thirty to forty feet long, which weighed about three and a half tons. In order to get these sections of the main into the basement of the building, where, as we have said, the main was to be installed, the Variety Company, with the permission of the defendant, moved four of the floor or I-beams located about the center of the building, and by means of an electric crane belonging to the defendant, located in the top of the building about twenty-five feet above the floor beams, lifted the sections into the building and lowered them into the cellar or basement. After the sections of the main had been placed in the basement, the floor beams that had been removed for that purpose were replaced and rebolted by the employees of the Variety Company, and they then proceeded to distribute the sections of the main in each direction. This was also accomplished by the use of the electric crane, to which was attached a cable, with a hook on the lower end of it. A "sling" was placed around the section of the main to be moved, and then carried up between the floor beams and connected with the hook on the cable. The floor beams were from five to ten feet *317 apart, and after the sling was connected with the hook on the cable, upon a signal from one of the workmen to the man operating the crane, the pipe or section would be lifted by the crane and moved in the direction desired until it came to the next floor beam, when, upon another signal, the crane would be stopped, the pipe lowered, and the sling unhooked and passed under the beam to the other side and again attached to the cable, when, upon another signal, the pipe would be lifted by the crane and moved forward to the next floor beam, and the same operation was repeated each time a floor beam was reached. This method of moving the sections of the main, according to the plaintiff's witnesses, required care on the part of those using it, and one of them testified: "If we get tight up against that I-beam with the heavy strain, we are liable to bend the I-beam, * * * with a heavy load on if it (the cable) strikes the I-beam pretty hard it will damage the building and sheer the cable," or it might "bend the bolts and knock the I-beam down."
On the day of the accident Harry Alles had charge of the sling around the sections of the main, and when the crane would stop, and the sling was unhooked from the cable, he would pass it under the beam to the other side and up to the man standing on the beam to be hooked to the cable again. In doing this he stood on top of the section of the main or pipe in order to reach the man above him, and remained there to keep the kinks out of the sling until it and the cable became taut. They had moved a section of the pipe or main about fifty feet from where the section had been placed in the basement, and had passed six or eight of the floor beams, when, while Alles was still standing on the main, the sling or cable struck the floor beam above him and knocked or pulled it off the bracket, and in falling it struck him on the foot and cut off two of his toes. It is not entirely clear from the plaintiff's evidence whether the cable or sling struck the beam before the crane had stopped, or lifted the beam after the cable had been attached again on the other side, but, according *318 to the testimony of Alles, the accident occurred after the sling had been passed under the beam and attached to the cable on the opposite side, and after the signal had been given to the crane man to start. He says it occurred before the section of the main was lifted by the crane from the floor of the cellar.
The plaintiff offered evidence tending to show that the beam that fell had not been bolted to the bracket; that the pressure of the cable on the beam was too light to have displaced it had it been bolted; that the beams which were removed by the employees of the Variety Company had all been bolted and riveted, and that they had every reason to assume that the beam in question was also bolted; that it was too dark in the basement for Alles to notice that the beam was not bolted, and that there were boards and other material on top of the beams that prevented the employees from seeing the end of the beams resting on the brackets. The defendant, on the other hand, offered evidence tending to show that the floor beams had been placed in position temporarily, and that the work could not be completed until all the pipes and machinery in the cellar had been installed, but that all of the floor beams had been bolted, and would not have been sufficiently secure to enable persons to walk or stand on them unless they had been bolted. It also appears from the evidence that Alles had been awarded compensation under the Workmen's Compensation Act of this State as an employee of the Variety Company, and that the Aetna Life Insurance Company, as insurer of the Variety Company, paid the compensation, amounting to $420, and $93 for "medical expenses."
At the conclusion of the testimony the plaintiff offered two prayers, which were granted by the court below. The first prayer was, in effect, an instruction that if the jury found that the Variety Company was invited by the defendant to enter upon the premises for the purpose of installing the gas main, and that Alles was employed by the Variety Company *319 in the performance of that work, then it was the duty of the defendant to exercise reasonable care for his safety while he was so engaged. The second prayer was in the form of the usual damage prayer in negligence cases, and authorized the jury to allow such damages as would be a fair and just compensation for the injuries sustained by Alles. The defendant offered four prayers, all of which were rejected. All of them sought to withdraw the case from the jury, the first and third on the ground that there was not sufficient evidence of negligence on the part of the defendant, the second on the ground that the work of installing the floor beams was done by the bridge company, an independent contractor, for whose negligence the defendant was not liable, and the fourth on the ground of contributory negligence on the part of Alles. The only exception in the record is to the court's ruling on the prayers.
In view of the evidence to which we have referred it is clear that the case could not have been withdrawn from the jury on the ground that there was no evidence of negligence on the part of the defendant, or on the ground of contributory negligence on the part of Alles. The appellant insists that the only evidence in regard to the floor beams being bolted is the evidence adduced by the defendant to the effect that all of the floor beams had been bolted by the employees of the bridge company, but it overlooks the testimony of Alles, who stated that he was positive that the beam that fell was not bolted or riveted, and the testimony of other witnesses who were present at the time of the accident to the same effect. The weight of this evidence as compared with that of the defendant was, of course, a matter entirely for the jury. In the case of Kann Co. v. Meyer,
Nor was there sufficient evidence of the want of care or prudence on the part of Alles to justify the court in saying, as a matter of law, that he was guilty of contributory negligence. He had assisted in moving the floor beams in order to lower the sections of the gas main into the cellar or basement, and, according to his testimony, had found them all bolted and riveted, and the evidence of the defendant is that that is the usual and only safe way to leave them, even when they are placed in position temporarily. The basement was not well lighted, and boards and other material lying on the beams obstructed the view of the brackets when he was standing on or above the floor beams. Whether the exercise of due care required him, under all the circumstances of the case, to carefully examine each beam to see that it was properly bolted before going under it for the purpose of assisting in attaching the sling to the cable hook, was a question that the defendant might, by a proper prayer, have submitted to the jury, but not one to be determined by the court. In the case of Cook v. Balt. Traction Co.,
The contention more seriously urged by the appellant is that the work of placing the floor or I-beams in position was done by the bridge company, an independent contractor, and that the defendant is not liable for any negligence of the bridge company in the performance of that work. The evidence shows that the work done by the bridge company was commenced in 1917 and was completed as far as was desired by the defendant in the winter of 1917-1918, and was then suspended and accepted by the defendant, who resumed possession of the building until the spring of 1919, when it notified the Variety Company that it was ready for that company to proceed with the work of installing the gas main under its contract. The cases of DeFord v. State,
The only remaining question to be considered is the right of the plaintiff to maintain the suit. The appellant says in his brief that the suit was originally brought in the name of the Variety Company, the insurance company and Harry Alles, and the agent of the insurance company testified that *323
the "suit was started by the Aetna Life Insurance Company and Harry Alles." The docket entries show, however, that the suit was brought on the 6th of February, 1920, and that on motion of the "plaintiff" made in open court on January 18th, 1921, the "plaintiff" was permitted, apparently without any objection, to amend the "caption" and declaration, by interlineation, by adding "for the benefit of" in two places, so as to make the suit appear as brought by the Variety Company for the benefit of the insurance company and Harry Alles, and that on the same day the defendant filed the general issue plea, issue was joined and the jury sworn. Upon this state of the record we must treat the suit as having been brought in the name of the Variety Company, for the benefit of the insurance company and Harry Alles, and the question arises whether it can be maintained under the terms of the Workmen's Compensation Law of this State, Harry Alles having previously claimed and been awarded compensation under that act by the State Industrial Accident Commission. This question was raised in the case of Hyde v. Blumenthal,
The statute of Illinois provided in section 3: "No common law or statutory right to recover damages for injury or death sustained by an employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who has accepted *324
the provisions of this act or to any one wholly or partially dependent upon him or legally responsible for his estate." Sub-section (b) of section 17 of that act contained the following provision: "(b) If the employee or beneficiary has recovered compensation under this act, the employer by whom the compensation was paid or the person who has been called upon to pay the indemnity under sections 4 and 5 of this act, may be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover damages therefor." In construing that act, the Supreme Court of Illinois said that sections 3 and 17 should be construed together, and that "paragraph (b) provides that, if the employee has recovered compensation, the employer may be entitled to indemnity from the person liable to pay damages and shall be subrogated to the rights of the employee to recover damages. He is not entitled, however, to more than indemnity out of the damages recovered, and the subrogation must be limited to that amount. The amount of recovery, however, is not so limited."Houlihan v. Sulzberger Sons Co.,
The Illinois act, so far as the present question is concerned is very much like section 57 of the Maryland act (section 58, article 101, Vol. 3 of the Code) prior to its amendment by Chapter 456 of the Acts of 1920. The Illinois act provided that the employer should be "subrogated" to the rights of the employee to recover damages, while the Maryland act provided that "if compensation is claimed and awarded or paid under this article any employer may enforce for the benefit of the insurance company, or association carrying the risk or the State Accident Fund, or himself, as the case may be, the liability of such third person; provided, however, if damages are recovered in excess of the compensation already paid or awarded to be paid under this article, then any such excess shall be paid to the injured employee or, in case of death, to his dependents, less the employer's expenses and costs of action." The liability which the employer is thus authorized to enforce is "the liability of such third person," and the only liability of "such third person" referred to in the act is the liability for "damages," which the injured employee could have enforced had he elected to do so. This liability is not limited by the act to the compensation awarded *326 or paid, but, on the contrary, the act clearly indicates that no such limitation was intended, and following the reasoning and decision of the cases referred to, it seems clear that the Legislature intended the same measure of recovery to apply as would have applied had the injured employee elected to pursue his remedy against the negligent third person.
The fact that the suit is in the name of the employer, for the benefit of the insurance company and the injured employee, Harry Alles, if not in strict compliance with the statute, is immaterial, as the act expressly directs the application of the amount recovered.
Finding no error in the ruling of the court below, the judgment appealed from will be affirmed.
Judgment affirmed, with costs. *327