Winkelmann & Brown Drug Co. v. Colladay

88 Md. 78 | Md. | 1898

Briscoe, J.,

delivered the opinion of the Court.

The appellant is a corporation conducting the wholesale drug business at No. 31 Sharp Street, Baltimore. The appellee, who was plaintiff below, was employed by the company and was seriously injured by the falling of a dumb-waiter, while engaged in work on the second floor of the company’s warehouse. It is alleged by the declaration that the plaintiff was employed by the defendant and had charge of the defendant’s patent medicine department, on the second floor of its warehouse; that it was necessary for the plaintiff to receive orders which were given to him by calling in a loud voice from the first floor through the shaft of a dumb-waiter which was operated in the warehouse, and that on or about the 25th day of November, 1894, the plaintiff being in the discharge of his duties, and inclining his head toward the shaft of the dumb-waiter, as he was compelled to do, in order to discharge his duties, and in order to hear the orders given in the manner aforesaid, was violently struck upon the head by the falling of the dumb-waiter, which fall was caused by the negligence of the defendant in not providing a proper dumb-waiter and by its negligence in not properly maintaining the same, and the rope connected therewith. At the conclusion of the testimony of the plaintiff, the Court was asked by the defendant to take the case from the jury and its prayers to this effect having been refused, the case was submitted upon the plaintiff’s evidence. The plaintiff offered two prayers, and the defendant eight additional prayers. The plaintiff’s prayers were granted, and-the defendant’s third, fifth, sixth and seventh were granted, but its fourth, eighth, ninth and tenth were rejected.

The case was tried before a jury and the judgment being for the plaintiff, the company has appealed. The questions are solely upon exceptions to the rulings of the Court upon the prayers and they come to this: was the defendant guilty of negligence, and second was the plaintiff guilty of such contributory negligence as would have warranted the Court in withdrawing the case from the jury. The evidence shows that the plaintiff was a young man twenty-four years of age and had been employed by the defendant company about six years at its place of business in Baltimore. At the time of the accident he had charge of the patent medicine floor, which was on the second story of a five-story warehouse, where it was his duty to fill orders for medicines and to send them down to the first floor by means of an elevator or dumb-waiter. This apparatus is described as a shaft running from the cellar to the fifth story of the warehouse, within which two boxes made of oak, each weighing about forty pounds, are used as dumb-waiters for hoisting to the upper floors, and lowering to the floors, the goods that are needed from time to time to fill orders. There are speaking tubes between the first and other floors, except the second, and the employees on the first and second floors were compelled to'use the shaft as a means of communication in giving orders from one floor to the other. The plaintiff stated: “ The way we got orders out, from the second floor, the only way we could communicate from the second floor to the others, we had to incline our head in the shaft of the dumb-waiter.” “ The reason we had to do that was to get the sound — we could not hear what the orders were, because there was such a draught coming up there; we had no speaking tubes, and it was our place to do it.”

And as to the accident, he stated, that all he knew about it was, that on the 24th of November, 1894, between a quarter after five and five thirty, the bell was rung for an order; “ I inclined my head on the side of the shaft to get the sound of what was said, to find out what the order was and just when I put my head there the waiter fell from the fifth floor.” He further testified that this was the only and usual way to receive orders between the two floors an'd it was the custom of the other employees to thus receive and give orders through this shaft.

It further appears that the rope which supported the boxes of the dumb-waiter consisted of two hemp ropes, each three-quarters of an inch thick and composed of three strands or twists, and that one of these strands had frayed out. The plaintiff also testified that he did not consider it dangerous to place his head on the side of the box, unless the waiter was in motion and did not believe the waiter could fall of its own weight, when not in use; that it was unloaded and standing still at the fifth floor when the accident happened.

Some of the witnesses testified that it was not necessary for the plaintiff to have inclined his head in the shaft to receive the orders from the first floor, and that he was advised of the condition of the rope prior to the injury, but this was denied by the plaintiff. We have thus examined the testimony somewhat at length, because it is conceded that the decision of the case rests upon the legal sufficiency of the plaintiff’s evidence, under the pleadings in the cause. Now it is apparent that the material facts of the case are conflicting and this being so, the plaintiff had a right to have the whole case passed upon by the jury.

It is well settled that unless there is some prominent and decisive act, in regard to the effect and character of which no room is left for ordinary minds to differ, Courts will not withdraw the case from the consideration of the jury. Central Ry. Co. v. Coleman, 80 Md. 337. The prominent fact in this case is the falling of the dumbwaiter, while unloaded and at rest, from the fifth floor of the warehouse.

There was no attempt to explain or refute the negligence imputed by the plaintiff’s testimony, and in the absence of this explanation on the part of the company the law raises the presumption of negligence. The rope was not produced at the trial and the plaintiff testified that he made an effort to see* the rope after the accident but it could not be found — that it was in the possession of one of the company’s employees. In the recent case of Howser v. C. & P. R. R. Co., 80 Md. 146, this Court said: “ Whilst the general rule undoubtedly is, that the burden of proof that the injury resulted from negligence on the part of the defendant is upon the plaintiff, yet in some cases the very nature of the action may of itself .and through the presumption it carries supply the requisite proof.” A similar doctrine was applied in the cases of Goodman v. R. & D. R. R. Co., 81 Va. 583; Posey v. Scoville, 10 Fed. Rep. 140; Mulcairns v. City of Zanesville, 67 Wis. 25; Mo. Pac. Ry. Co. v. McCally, 41 Kansas 649: Texas & P. Ry. Co. v. Barrett, 67 Fed. Rep. 214; Barnowsky v. Helson, 89 Mich. 523. But apart from the presumption of negligence, there was evidence, if the jury believed it, tending to prove negligence on the part of the appellant company. This was a question for the jury, under all the circumstances of the case, and was properly submitted to them.

(Decided June 29th, 1898.)

Nor does it appear from the evidence that the plaintiff’s position at the time of the accident was necessarily a dangerous one. It was the usual one occupied by the employees in performing that' duty and was not in itself a place of peril. It is not contributory negligence not to look for danger where there is no reason to expect it. The evidence upon this branch of the case is also conflicting, and a doubt existing as to its character, contributory negligence becomes a question of fact to be determined by the jury. B. & O. R. R. Co. v. State use of Wily, 72 Md. 36; Penna. R. R. Co. v. Zink, 126 Pa. St. Rep. 288; Nelson v. Chicago & St. Paul R. R. Co., 60 Wis. 321.

The plaintiff’s first and second prayers, and the defendant’s seventh prayer and its third, fifth and sixth prayers, as modified by the Court, for the reasons we have given in the discussion of the main questions of the case, fairly submitted the law of the case. For the same reason the defendant’s prayers were clearly erroneous and were properly rejected by the Court. The judgment being for the plaintiff, it will be affirmed with costs.

Judgment affirmed zvith costs.