77 Md. 593 | Md. | 1893
delivered the opinion of the Court.
This action was brought to recover damages for personal injuries. The declaration contains three counts. The first has been abandoned, and need not therefore be alluded to. The second alleges, in substance, that the defendant, a municipal corporation, was engaged in constructing a sewer under the bed of Cross street in the City of Baltimore; that the plaintiff was employed as a laborer thereon; that in the prosecution of this work a shaft was sunk through which a cage or elevator used for conveying the plaintiff and others to and from their
The gravamen of the second count is that the city was negligent in not employing a competent engineer to operate the elevator, and that the engineer himself was negligent; and of the third count that the city was negligent in selecting and in retaining in its service an incompetent engineer, and that the engineer was guilty of negligence whereby the accident happened. If the city was guilty of negligence as imputed to it in the third count, it must have been negligence either in the original employment of Burns, or in continuing him in its employ after discovering his incompetency, if he really was
It appears from the plaintiff’s evidence that ordinance No. 43 of 1889,'made provision for the construction of the Cross street sewer, and that the management and control of the entire work was placed in' the hands of the City Commissioner. He was entrusted with the power to employ laborers, mechanics and all other servants needed in the prosecution of the work, and had charge of and supervision over the whole improvement. He acted for the city and stood towards the employes under him in the relation of deputy master or vice-principal. It is equally certain that Burns, the engineer, by whose alleged negligence the accident happened, and War, the plaintiff, were fellow-servants of the same master. It is true the one had charge of the engine which hoisted and lowered the cage in the shaft, and the other worked in the excavation below the surface, but they both served the same master, worked under the same control, derived authority and compensation from the same source, and were engaged in the same general business; though in different grades or departments of it; and each took the risk of the other’s negligence. Wonder vs. Balto. & Ohio Railroad Co., 32 Md., 420; State, use of Hamelin, et al. vs. Malster & Reaney, 57 Md., 287; Baltimore Elevator Company vs. Neal, 65 Md., 438; Yates vs. McCullough Iron Co., 69 Md., 370.
The master does not guarantee his servant against the negligence of a fellow-servant. One of the risks which the servant takes upon himself on entering or remaining in the master’s employment, is the danger of injuries to himself from the negligence of co-employes. For these injuries the master is not responsible unless he himself' has been guilty of negligence in the selection of the servant whose carelessness caused
To maintain this action it is consequently necessary for the plaintiff to prove not only the fact of the injury, but also, first, that the accident was the direct result of a co-employe’s negligence, and, secondly, either that the master had not used proper care to select a competent co-employe, or, that subsequently to the employment and prior to the accident the defendant discovered the incompetency of Burns, or could have discovered it by the exercise of reasonable care, but still retained the incompetent servant. The burden of proof was on the plaintiff to establish these propositions by legally sufficient evidence, and unless the evidence adduced by him was of sufficient probative force to enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the proposition sought to be maintained thereby, it was the clear duty of the Court to exclude it from the consideration of the jury. Baltimore Elevator Co. vs. Neal, supra. Several of the prayers presented in behalf of the city, but rejected by the Court below, challenged the legal sufficiency of the evidence, and now raise in this Court the ultimate or fundamental question of the right of the plaintiff to recover at all.
Turning to the evidence offered by the plaintiff, and assuming for the purposes of this discussion that the •objections to its admissibility are not tenable, there are two circumstances, and only two, relied on to show the imputed incompetencv of Burns and the lack of care on the part of the City Commissioner in selecting him to operate the engine. It appears that the shaft where the
The day before the plaintiff' was hurt the cage fell either because Burns was negligent, or because he was incompetent, or by reason of some accident referable neither to negligence nor incompetency on his part. No other cause can possibly be assigned. The burden of proof is on the plaintiff to show that Burns was incompetent. The occurrence itself in cases of this character raises no presumption of negligence and justifies no inference of incompetency. If you say the cage fell the day before the accident, because Burns was then negligent, you do not thereby prove him incompetent, because negligence may be predicable of competency. If you say the cage fell because of some accident, you do not prove Burns negligent, because an accident may happen to the most prudent. If you say the cage fell because Burns was incompetent, you assume the very proposition to be proved as the foundation of the plaintiff’s case, though there is no evidence to warrant that assumption.
Against the objection of the defendant the plaintiff was allowed to prove the following facts for the purpose of showing that sufficient care had not been used by the defendant or its agents in the selection of the engineer Burns — the second circumstance relied on by the plaintiff: That in January, 1891, Walter A. Cox was a member of the City Council, and Cox testified in these words: “It was between the 15th and 18th of January, that I was at the City Hall. It was about ten o’clock in the morning, and Mr. Burns came to me in company with Mr. John Murphy, who was then and is now, doorkeeper in the City Council. Mr. Murphy remarked to me: ‘'Mr. Cox, this is Mr. Burns.’ He lias a letter
We have thus quoted at length from the record because this is absolutely all the evidence adduced by the plaintiff on this branch of the case. Without reference to the fact, which was alone for the jury to consider, that every essential part of this statement made bjr the witness Cox was flatly and overwhelmingly contradicted,
But the evidence of Cox as to the contents of the letter alleged to have been written by Mr. Rasin was wholly inadmissible, and should have been excluded, because the witness did not profess to be able to give the contents, but merely characterized or described them as an order to put Burns to work, and by that means his interpiretation of the contents of the letter wuis suffered to go to the jury as proof of the actual contents. It is a perfectly familiar rule that parol evidence of the contents of a written paper cannot be given unless it is first satisfactorily shown that the paper has been lost or destroyed, or, if it be in the possession of the adverse party, that proper and seasonable notice has been given to him to produce it. Young vs. Mertens, 27 Md., 114; Beall & McCullough vs. Poole & Hunt, 27 Md., 645.
Though the plaintiff offered not a particle of evidence that the letter had been lost or destroyed, he traced it by the testimony of Cox into the possession of Smyrlr, and exhibited a notice which had been served upon the City Solicitor, requiring the defendant to produce the letter at the trial. Notice to a party to tlie cause will be sufficient if the lost instrument be traced to his possession or to the possession of one in privity with him, such as his banker, agent, or servant, or the like. Upon its non-production after such a notice parol evidence of its contents may be given. Baldney vs. Ritchie, 1 Stark. R.,
There is not the slightest evidence in the record to show that before the accident happened the City Commissioner had the faintest knowledge or information that Burns had been careless the day prior to the injury of the plaintiff. The knowledge of other employes could not bind the master.
From the views we have expressed it is obvious, there was no legally sufficient evidence to go to the jury to show, either, that Burns was incompetent, or that Smyrk had been negligent in employing ór retaining him in the service of the city. There was not even a scintilla of evidence to support these essential features of the plaintiff’s case. “A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, clearly would not justify the Judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence.” Toomey vs. The London, Brighton and South Coast R. W. Co., 3 C. B., (N. S.), 146; State, use of Foy, et al. vs. Phil., Wilm. and Balto. R. R. Co., 47 Md., 76.
For the reasons we have given we are of opinion that the first, second, and third prayers presented hy the defendant ought to have been granted. They withdrew the case from the jury. For the error in rejecting them the judgment must he reversed, and as upon the plaintiff’s own case he is not entitled to recover, a new trial will not be awarded.
.Judgment reversed, with costs in this Court and in the Court below.
Robinson, O. J., dissented.