
    Patrick O'Connell vs. The Baltimore & Ohio R. R. Co.
    Railroad Companies, liability op to Employees injured. — When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employees not responsible. The liability to injury of one person from the carelessness of his fellows, is but an ordinary risk, against which the law furnishes no protection buthy an action against the wrong-doer.
    Though it is the duty of a railroad company to exercise all reasonable care in procuring for its operation, sound machinery, and competent employees, and though they are liable to their servants for the neglect of this duty, yet, after they have procured such machinery and employees, they are not liable to a servant for the injuries occasioned by the neglect of any of his •co-servants, employed in the same general business of operating the road.
    Appeal from the Superior Court of Baltimore City :
    This was an action brought by the appellant against the appellee, on the 11th of May 1858, in the Superior Court ,of Baltimore City, to recover damages for an injury sustained by him while riding upon the cars of the Balto. & Ohio R. R. Co., from one point to another of their road in the performance of his duties as laborer, in which capacity he was employed by the company. The pleadings in the canse are set out in the opinion of this Court.
    
      Exception. At the trial of the cause the plaintiff proved that on th© 1th of September 1851, being in robust health, he was employed with others as a laborer upon the Baltimore and Ohio Rail Road, in shovelling and pitching dirt and gravel into dump cars, to be carried to other parts of the road to he dumped out; that the cars were not quite loaded when the signal was given for the men to get into the cars, that the train might get out of the way of a coming Washington train. One Shaefer was the engineer, and Patrick Downey the boss of the train who directed the laborers in their work, and gave the orders when to stop work and get into the cars. The dump train moved very fast, and as they were rounding 'a curve, the car in which the plaintiff was, dumped and threw out all the men hut one, who clung to the upper side of it. The collar bone of ■one of the men was broken and the five toes of one of the plaintiff’s feet were so mangled and mashed that they had to be amputated; and ho now goes on crutches, will suffer pain as long as he lives, and will never be an able-bodied man.
    The defendant proved that the conductor of the dump train “was a steady industrious man, of competent skill and experience in his business as foreman, and of general good habits and character; that “the ear was in good order; that it was the practice l'or the men who dumped the car to adjust it; that if the blocks of the cars had been out of order, they could neither have been loaded nor used on the track; that it is the duty of the engineer and foreman of the ballast train to examine the condition of the cars and seo that they are properly adjusted; and that the train in question was entirely under the control of Downey.
    The plaintiff offered nine prayers, in substance as follows:
    1. If the plaintiff was employed as a common laborer to dig gravel and dirt on the sides oí'the road, and was transported to different points on the road where he was required to work, in the dump cars used in said business, and said cars were under the control and direction of a superintendent, one Downey, and of the engineer of the locomotive; and the plaintiff had nothing to do with, and in point of fact, took no part in the management of the train; and while being so transported and employed, the car in which he was riding by reason of'a defect therein was upset, and the plaintiff thereby injured, the plaintiff is entitled to recover.
    2. That if there was no defect in the car, but it was upset by reason of the negligence of the superintendent in not properly adjusting the mechanism which maintained the car in its horizontal position, the plaintiff is entitled to recover.
    3. That if the failure to adjust the mechanism was due to a want of system in loading, unloading and righting the cars, there was not reasonable care, skill and prudence on the part of the superintendent, and the plaintiff is entitled to recover.
    4. Is like the third, except it refers it to the jury to find whether the practice in loading, &c., was reasonable and prudent.
    5. If the jury should find the facts in the first prayer, except that there was a defect in the car, they constitute prima facie evidence of a defect in the car or of negligence in the superintendent or engineer, and cast upon the defendant the burden of proving that the accident was not occasioned by a defect in the car, nor by the fault of the superintendent or engineer.
    6. If the jury find the facts hypothetically stated in the last prayer, it devolves on the defendant the duty of proving that the disaster was not caused by a delect in the car, and that Downey*was a person of competent skill, and in every respect qualified for his position, and that the disaster was not caused by negligence, want- of skill or prudence on the part of Downey.
    7. If the disaster was caused by a defect in the car, which by the exercise of ordinary care the defendant might have known and provided against, the plaintiff is entitled to recover.
    8. If the accident was caused by the substitution of a wooden pin for an iron one, the plaintiff is entitled to recover.
    9. That if by the rules and regulations of the company, it was made the duty of the superintendent to examine the cars and see that they were in a good and safe condition, and to send them for repairs, when necessary, to the workshops of the defendant; and that the superintendent knew the car was injured and defective, the plaintiff is entitled to recover.
    The defendant offered the following prayers:
    1st. “That if jury shall believe from the evidence that the plaintiff in this action was on the 7th September 1857, employed by the defendant as a laborer, along yvith others attached to a dirt train on the road of the defendants, and under the direction of a foreman, and that the said foreman and the said plaintiff and others employed with the said train were engaged in the common employment of repairing and keeping in order the said road, and that the said plaintiff was on that day riding in one of the cars of said train in the usual course of his employment, and that while so riding, the said car accidentally upset, and that the plaintiff was thrown out and injured thereby, then the plaintiff is not entitled to recover damages for such injury, unless he shall satisfy the jury by evidence, that the car in which ho rode was not of approved construction and material when put upon the road of the defendants for use by the employees thereof, or that the foreman of said employees, or the co-employees of the plaintiff, were not persons of competent skill and experience and general good habits and character in their respective employments.
    2nd. “That if the jury shall believe the facts in regard to the employment, and also those in regard to the happening of an accident to the said plaintiff stated hypothetically in the first prayer, and shall also find from the evidence that the said accident was to bo attributed to the use of a wooden pin male on the day of the accident by the foreman, in place of an iron one to keep in place the block, that prevented the car already referred to from upsetting, even then the plaintiff is not entitled to recover, provided the jury shall also find that the said car when put upon the road of the defendants for use by the employees thereof, was of approved construction and material.
    3rd. “That if the jury shall find from the evidence the facts in regard to the employment of, and accident to the plaintiff, slated hj’-pothetically in the first prayer, and. shall further find that the said accident happened in consequence of the car, on which the plaintiff was- riding at the time being out of repair, and being improperly used while so out of repair by the foreman, under whom the plaintiff worked, instead of being set aside, until repaired,, then the plaintiff is not entitled to recover, provided the’ jury shall find that said foreman was a person of competent skill and experience in the station he occupied,- and of good habits and character.
    4th. “That if the jury shall find from the evidence the-facts in regard to the employment, and also those in-regard to the happening of an accident to tbe plaintiff, stated hypothetically in tbe first prayer, and shall further find from the evidence- that tbe said accident happened in' consequence of the imperfect adjustment and fastening in its place by the co-employees (of the plaintiffs) or any of them, of a block which prevented the car already referred t.o> from upsetting, then the plaintiff is not entitled to recover, provided the jury shall find from the evidence that tbe co-employees of the plaintiff were persons of competent skill and experience in their respective stations,- and of general good habits and character.
    5th. “If the jury shall believe from the evidence the' facts in regard to the employment of, and accident to the plaintiff', stated hypothetically in first prayer, and shall further find that the said accident happened in consequence of the car on which the plaintiff was riding at the time being out of repair, and being improperly used while so out of repair by tbe engineer in charge of the train1, (if tbe jury shall believe from the evidence that it was the duty of the-engineer to determine when a car was not fit for use,) instead of being set. aside and repaired, then the plaintiff is not entitled to recover, provided the jury shall also find that said engineer was a person of competent skill and experience in the station he occupied, and of general good habits and character.”
    The Court below (Martin, J.) rejected the prayers of the plaintiff, and granted those offered by the defendant,, whereupon the plaintiff appealed.
    The cause was argued before Bartol, Goldsborough and-Cochran, J.
    
      
      W. Meade Addison, for the appellant, argued :
    1st. That a railroad company is responsible to its employees for injuries caused by the negligence of a superintendent, or by the use of defective or improper machinery. Rdndleson vs. Murray, 8 Adol & Filis, 109, (35 Eng.-iJ. L. Rep., 342.) MeOalriek vs. Wason, 4 Ohio St. Rep., 566, 575. C. O. & O. II. It. (Jo. vs. Keary, 3 Ohio Si. Rep., 201. Gillimusler vs. Madison & Ind. R. R. Co., 5 Ind. Rep., 344. Fitzpatrick vs. New Albany & Salem R. R. Co., 7 Ind. Rep., 436. Jurist 1858, vol. 4, N. S., 1 Ft. 770, 771.
    2d. That a railroad company is responsible to its employees for injuries sustained by them through the negligence of a superintendent, no matter how well he may be suited for the position. Dixon vs. RanJcen, opduion of Court óf Sessions of Scotland, 6 Am. It. R. Ca., 568, 569, 570. Little Miami B. R. Co. vs. Slevens, 20 Ohio, 431, 432, 434. And especially if they were not engaged in a common work, or were engaged in a different department of duty, JIardvs. Vi. (5 Canada It. It. Co., 32 Vermont, 278. Wright vs. N. T. Central 11. 11. Co., 28 Barb., 86. 20 Ohio Rep., 415. 3 Ohio Si. Rep., 210, 211.
    3d. That a superintendent ought to be a person not only of competent skill and experience and of general good habits and character, but also careful, prudent and, cautious. Fartuell vs. Boston & W. It. It. Co., 1 Am. Railroad Ca., 349 , 340, 342 . 8. C., 4 Met., 36. Hays vs. Western R. R. Co., 5 Am. It. li. Ca., 556, and note. 6 Eng. It; R. Ca., 580, 586. Hutchinson vs. York, Neto Castle, &c.,R. R. Co., 8. O., 5 Exchequer Rep., 341. Skip vs. Eastern Connties R. 11. Co., 24 E. Law & Eq. Rep., 398/ Redfield on Railways, 390, note. Wigget vs. Fox, 38 E; Law & Eq. Rep., 488, (decided in 1856.) Tenant vs,Webb, 86 Eng. C. L. Rep., 805. Slohes vs. Salslonsel, 13-Peters, 185.
    4th. That a railroad company is responsible to its employees for injuries to them caused by defective machinery, notwithstanding the same may have been perfect when put on the road, it being the duty of the company to keep the same in good, order. Hard vs. Vt. & Canada B. B. Co., 32 Vermont, 278; the only case that is authority for the extreme view of the law adopted by the Court.
    5th. That dump cars were not suitable cars for employees to ride on. That it was the duty of the company to furnish its employees with suitable means of transportation, and that dump cars were not proper for their transportation, even if in good repair.
    A reliance on this point was taken away from the plain- - tiff, by the instructions of the Court. Fulton vs. McGraken, 18 Md. Bep., 543. Jurist 1858, vol. 4, N. 8., Ft. lsi, 770, 771. Noyes vs. Smith, 28 Vermont Bep., 59. 3 Ohio St. Bep., 201, 218, 213.
    
      John H. B. Latrobe and F. O'. Latrobe,
    
    in support of the propositions contained in the several prayers of the appellee, relied on the following authorities: Farwell vs. Bail-road Go., 1 Am. Bailway Ga., 339. Hayes vs. Bailroad Go., Id., 564. 4 Jurist, N. 8., part 1, 767. Haid vs. Bailroad Co., 32 Vt. Bep., 473. Pierce on Bailtvays, 286. Goon vs. Bailroad Go., 1 Selden, 492. Priestly vs. Foidler, 3 Mees. & Weis., 1. Bailroad Co, vs. Tindall, 13'Ind. Bep., 366. Moss vs, Johnson, 22 111. Bep., 633. Bailroad, Go. vs. Cox’, 21 III. Bep., 20. Murray vs. Bailroad Go., 1 McMillian, 385. Wigmore vs. Jay, 5 Exchequer, 352. Skip vs. Bailroad Co., 24 E. Law & Eq. Bep., 396. Parran vs. Webb, 37 Id., 281. Boldt vs. Bailroad Go., 18 N. 7. Bep.,. 432. Sherman vs. Bailroad Go., 17 Id., 153. Shannon vs. S. B. B. Co., 10 Gush., 228. Byan vs. Gumb. Val. B. B. Go.,. 23 Pa. Bep., 384. Farwell vs. Bailroad Go., 4 Metcalf, 49, Hayes vs. Railroad Go., 3 Cush., 270.
   GrOLDSBOROuaH, J.,

delivered the opinion of this. Court:

The action in this case was instituted by the appellant against the appellee in the Superior Court of Baltimore City, to recover damages for an injury sustained by him while in the appellee’s employment. It is alleged in the declaration that whilst the appellant was engaged in his work as an employee, without any neglect or carelessness ou his part, but through the carelessless of another employee over whom the appellant had no control, a dumping or gravel car of the appellee was upset and fell upon the appellant, and he was permanently injured. That the car on which he was riding, was upset from its defective construction and the unskillfnlness and neglect of the employee having charge of the car.

To these allegations the appellee pleaded “not guilty.” At the trial and after the evidence detailed in the record had been submitted to the jury, the appellant offered nine, and the appellee five, prayers.

The prayers of the appellant were rejected, and those of the appellee were granted by the Court. The verdict and judgment being for the appellee, this appeal was taken.

The law arising out of the relation of the parties litigant in this case, is presented for the first time for our consideration. It affects a large class of citizens, a class, constantly being augmented by the diversity of employment incident to the enterprise of the age.

In the absence of any controlling decision in this State, we find ourselves aided in the formation of our opinion by a current “of decisions both in England and in this country, entitled to our highest consideration and greatly relieving us from the responsibility of settling the law as to the relative obligations of parties holding positions similar to the parties in this case.”

It is proper to state that though the appellant received the injury stated in his declaration while riding on one of the appellee’s cars, it is not claimed that he was a passenger who had paid for the privilege of travel, but one of a number of laborers who were in the employment of the appellee, who were required to ride upon the cars to and from the place of their daily labor.

The appellant seeks to recover damages upon the ground ■that there is an implied warranty on the part of the appeLleo of the soundness of the machinery put in the hands of its servants .so far as any unsoundness therein may be dis.covered by the exercise of proper care and diligence; and in the employment of men of care, skill and capacity for the full and faithful discharge of the duties that appertain to the position they severally occupy. The appellant also relies upon the fact, as he insists, that he, with other laborers ■were updcr the management and control of one Downey as superintendent of the laborers; that Downey was rash and wholly regardless of the safety of the men, and that the train of dumping cars, upon one of which the appellant was riding wa.s managed by an engineer having charge of the train. That neither Downey nor the engineer inspected the cars at or before the time they were started, and that the fixtures by which the cars were adjusted to prevent their dumping, especially the car on which the appellant was riding, were out of order and unadjusted at the time of the accident, and from all these cauces he suffered the injury complained of in this suit.

The appellee rests its defence upon the relation of the parties as employer and employee.

That there is no responsibility if the injury arose from the conduct of a co-employee engaged in the .same .employment, though the co-employee be superior to the one injured.

That the appellee cannot be held responsible if it employed a competent and skillful engineer and superintendent; and does not warrant that these individuals shall faithfully discharge their duty in managing the hands and keeping the machinery in its original safe condition; and that it is a legal and sufficient defence to this action, if the appellee did in fact employ a skillful and competent engineer and superintendent; and if the cars put upon the road were of approved construction, and were in a proper state and condition when put into the hands of the engineer and ¡superintendent. That at the lime of the accident and injury to the appellant, he was riding on one of the cars of which he was required to avail himself in order to facilitate his labor and service. That no compensation was paid .directly or indirectly by the appellant for the passage, and the appellee was under no obligation to convey him to or from his work. Therefore lie must he presumed to know the nature of his employment and to assume all the risk incident to the service he undertook to perform; and one of those risks was Iris liability to injury from the carelessness of others who were employed by the appellee in the same service.

Having thus with duo care, stated the character of the claim of the appellant and the defence of the appellee, we fully concur in the opinion that the defence is well taken.

It is sustained in all its aspects by an almost unbroken current of authorities both in England and in this coun-try. See the case of Priestly vs. Fowler, 3 Mees. & Wels. Rep., 1; 24 E. Law & Eq. Rep., 396. Farwell vs. Boston & Worcester R. R. Co.. 4 Met., 49. 1 Seldon, 493. 3 Cushing, 270. 10 Cushing, 228. 32 Vermont R., 473. 23 Penn. R., 384. This last ease .decided in 1854, is almost identical in its prominent features with the case under consideration. In several of the earliest of these cases, the question being regarded as a new and important one, the Courts in view of its novelty and importance, considered and decided it after careful and mature deliberation.

The following conclusions of law applicable to this case, may ho deduced from the above authorities.

When several persons are employed in the same general service, and one is injured by the carelessness of another, though the negligent servant in his grade of employment is superior to the one injured, the employer is not responsible. The liability to injury of one from the carelessness of his fellows, is hut an ordinary risk, against which, the law furnishes no protection, bnt by an action against the wrong doer.

Though it is the duty of a railroad, company to exercise all reasonable care in procuring for its operation, sound machinery and faithful and competent employees, and though they are liable to their servants for the neglect of this duty, yet, after they have procured such machinery and employees, they are not liable to a servant for the injuries occasioned by the neglect of any of his co-servants employed in the same general business of operating the road. 23 Penn. Rep., 386, 387. 32 Vermont Rep., 473. 4 Met. Rep., 49.

We are of opinion that these rules of law are so directly applicable to the case under consideration, that they constitute a flat bar to the appellant’s right to recover.

It only remains for us to consider the ruling of the Court below in rejecting the appellant’s and granting the appellee’s prayers.

It is manifest from what we have said as to the law controlling this case that the ajjpellant’s 1st, 2nd, 3rd, 4th, 6th, 7th, 8th and 9th prayers, could not have been granted.

We will consider the appellant’s 5th in connection with the appellee’s first prayer. They both embrace the question, on whom is imposed the burden of proof.

Though the Supreme Court of the United States, in the case of Stokes vs. Saltonstall, 13 Peters S. C. Rep., 191, recognize the doctrine.that a stage proprietor warrants the safety of passengers as far as human care and foresight can go, and that he will transport them safely; and the facts that i£a carriage was upset and the plaintiff’s wife injured, are prima facie evidence that there was carelessness or negligence or want of skill on the part of the driver, and throws upon the defendant the burden of proof that the accident was not occasioned by the drivers fault;” yet a majority of this Court are of opinion that the above case is not applicable to this. The appellant held no such relation to the appellee; it was under no obligation to look to the safety of the appellant under the circumstances of this case; did Hot contract to carry liim to and from his placo of work, and received no compensation therefor; and he having alleged in his declaration the causes of bis injury, must sustain bis allegations as in ordinary cases, by corresponding proof. The Court below therefore, in rejecting the fifth prayer of the appellant and granting the first prayer of the appellee, ruled correctly.

(Decided Oct. 28th, 1863.)

The appellee’s 2nd, 3rd, 4th and 5th prayers were properly granted. They are sustained by the law of this case as herein announced and are otherwise unobjectionable, as they submit the matters of fact contained in them to he found by tbejury.

Judgment affirmed,  