
    TEXAS COMPANY, INCORPORATED, vs. WASHINGTON, BALTIMORE & ANNAPOLIS ELECTRIC RAILROAD COMPANY.
    
      Negligence — Freight Piled on Railroad Platform — Injury to Invitee — Contributory Negligence — Employers’ Liability — Action Against Wrongdoer — Parties.
    In an action against a railroad company on account of injuries caused by the fall of pieces of freight, a question to a witness which necessarily included testimony as to the manner in which defendant’s servants piled freight on other days and at different places on the same platform was properly excluded. p. 172
    
      The true ground of liability of the owner of premises for injury to one whom he invites thereon is the owner’s superior knowledge of the latent or concealed peril which causes the injury. p. 173
    One invited on another’s premises is guilty of contributory negligence precluding recovery for an injury received while there, if he fails to use due' care to avoid dangers which he knows from past experience to exist on the premises, or which he should know to exist because of his knowledge of the character of the premises, or because the dangers are so obvious that any ordinarily prudent man would see them and guard against them. p. 174
    One familiar with freight sheds, who, in a congested freight shed with which he was fully acquainted, pulled aside the first piece of freight which he found in his way, without stopping to see whether it supported other pieces of freight piled around it, was guilty of such recklessness as to preclude recovery by him for an injury caused by the fall of such other pieces, as a consequence of his reckless act. pp. 174,175
    Error in an instruction in an action for negligence is not ground for reversal on plaintiff’s appeal, if plaintiff was guilty of such contributory negligence as to prevent a recovery, p. 175
    Under Acts 1922, ch. 303, amending section 58 of the Workmen’s Compensation Act, the employer, if he is not self-insured, is not a necessary party to a suit to enforce the liability of a third person, and he should not be made a party plaintiff thereto. p. 176
    
      Decided January 16th 1925.
    
    Appeal from the Superior Court of Baltimore City (Stump, J.).
    Action by the Texas- -Company, Incorporated, -to the- use o-f the United States Fidelity and Guaranty -Company, to the .use of John Mi-ller, against the Washington, Baltimore and Annapolis Electric Railro-ad -Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    
      The cause was argued before Bond, C. J., Pattison; Urner, Adkins, and Walsh, JJ.
    
      J. Kemp Bartlett, Jr., with whom was Bartlett, Poe & Claggett on the brief, for the appellant,
    
      George Weems Williams, with whom were Marbury, Gosnell & Williams, and Clarence W. Sharp, on the brief, for the appellee.
   Walsh, J.,

delivered the opinion of the Court.

This suit was brought by the Texas Company, Incorporated, for the benefit of The United States Fidelity and Guaranty Company and John Miller, against the Washington, Baltimore and Annapolis Electric Railroad 'Company, to recover for injuries sustained by John Miller and alleged to have been caused by the negligence of the defendant, and the present appeal is from a judgment in favor of the defendant.

Miller, one of the equitable plaintiffs, was employed by the Texas Company in the capacity of chauffeur’s helper, and on February 1st, 1923, he, together with a chauffeur named Walls, took one of the Texas 'Company’s trucks to the freight shed of the defendant in Baltimore City for the purpose of obtaining about forty empty oil drums consigned to the Texas Company. The defendant had sent a postal card to the Texas Company notifying it of the arrival of the drums and asking that 'they be called for, and it was in response to this postal that Miller and Walls went to the freight shed. On arriving there the truck was placed at a point about fifteen feet from the oil drums, the space between tibe track and the drams being filled with freight, and Wall®, in accordance with the practice and rales of the defendant, went to the cashier’s office to have his card O'. K.’d so that he could obtain the drams. After leaving the cashier’s office ;he went ■to the delivery clerk of the defendant, a Mr. Ballard, to turn over the card, and that gentleman being busy with another customer, Walls walked over to the oil drams, and just as he reached them Miller suffered the .injury for which this suit was brought. When Walls went to the cashier’s office, Miller went on the platform of the freight shed, and as, in his own words, “there was all kinds of freight in front of those drums, barrels, boxes and bales, and things of that land,” he asked another employee of the defendant, a Mr. Mason, whom he described as a receiving clerk, Whether they could have some help in getting the drums. Mr. Mason said “that they were all busy and could not give us any help', and that, there were two of us on the truck to get the empty drums.” Miller also testified that “Mr. Walls, the chauffeur, and I had gotten empty drums there lots of times before,” and that they usually got them without help from the defendant. * * * “On this occasion I asked Mr. Mason, and he said he was too busy to have any one help; me. Then T went into- the aisle, and there was an empty barrel there which looked like a potato or flour barrel. This aisle was leading back to the drums, and the freight was piled on both sides of it. The drums were at the far end of the aisle. There was nothing in this aisle except this empty potato barrel. It was necessary to move this barrel because the aisle was not wide enough to bring the drums through, and as soon as I moved it a radiator fell over on my foot. I could not get in and get the drums without moving the barrel, and as soon as I moved it the radiator fell on my foot and boxes fell all around me.”

On cross-examination Miller stated that he had been going to the defendant’s freight station for drums for nearly two years, that the freight shed was open on both sides, and that it was lighter than the court room, in which the case waa being tried. He also admitted that in his application for compensation he stated that the radiator which fell on him seemed to he leaning, and he testified further on this point, “yes, it seemed to- be leaning because there was other freight piled up against it. Q. You saw it? A. Yes. Q. And it was leaning when you saw it ? A. Well, it looked like it was leaning, yes, .sir. Q. Looked like it. But you -saw that radiator? It was daylight, wasn’t it? A. It was daylight, yes, sir. Q. I mean you could see the various articles around, couldn’t you ? A. Well, títere was so many. There was lots of stuff there, yes, sir. * * * Q. And you could see the various articles of freight? A. Tes, sir. * * * Q. D'o you remember telling the person who made out this ('application for compensation) that the radiator seemed to be leaning? A. Well, then, at-that time I knew everything perfect, hut it has been a good while now to remember everything exactly the way it was, Q. Sure, of course, Mr. Miller. But have you any doubt that that is correct? A. Yes, that is perfect, the way it is there now. Q. That the radiator seemed to be leaning? A. Yes. Q. How did the radiator seem to be leaning, against anything? A. Well, I do not remember that exactly now either, but there was a barrel there I had to move to get in the aisle, and there was not only a radiat-or, but other things there, too, a whole lot of stuff. They were not all setting straight, no matter what it was. Q. The radiator was leaning? A. It is in all -those stations, always.”

He then continued: “I have been engaged around freight terminals ever since I have been with The Texas Company. * * * I know about the way freight is ordinarily piled. * * * The radiator was near the barrel, for as soon as I moved the barrel it fell on me. * * * I do not know whether the empty barrel held the radiator upi. It may have, but I did not see it. * * * The radiator had boxes against it on the other side.” He also stated that the freight shed was congested that day, and that the freight was piled about the same way it' ordinarily was in all freight sheds visited by him. : ■

It further appeared that Miller filed a claim for compensation under the provisions off the Workmen’s Compensation Act, received an award, and had signed a final settlement receipt. The present suit was instituted under1 the provisions of section 58 of article 101 of. the Code (Workmen’s Compensation Act), which authorizes the recovery of damages where the injury was ■caused under circumstances creating a legal liability in some person other than the employer.

At the trial below the plaintiff offered five prayers and the defendant six, but the court refused all the prayers of the plaintiff and tke defendant, and gave an instruction of its own, and, tke verdict of tke jury keing for tke defendant, tke plaintiff appeals. There are three exceptions, in tke record, the first two keing to rulings on the evidence, and tike tkird to the action of tke court in refusing to grant tke five prayers offered by tike plaintiff, and in granting tke court’s own instruction.

Tke first and second exceptions were taken to tke refusal of tke court below to allow tke witness Mason to answer tke following questions.: “In what manner was. tke work of unloading cars by tkis colored labor done, and state whether, when freight was taken off oars and put on tike platform, it was carefully and safely piled in place” ? We find no error in these rulings. The answers to the questions asked would necessarily have included testimony regarding the- manner in which the defendant’s servants piled freight on other days and at different places on tke platform, and such, testimony would, in our opinion, have been irrelevant to tike issues in tkis case.

Tke tkird exception embraces1 tke rulings of the court, in rejecting tke five prayers offered by tke plaintiff, and tke action of tke court in granting its own instruction. Tke court’s instruction, which was tke only one given tke jury, was based on tke theory that Miller could not recover unless tke jury found that tke truck driver, Walls, had directed him to go in amongst freight of other consignees to get out tke freight tke truck driver had come for, and under tkis instruction tke jury found a verdict for tke defendant.

We do not consider it necessary to pass upon tke validity of tke foregoing instruction, nor upon tke correctness vel non of tke prayers offered by tke plaintiff, because in our opinion tke second prayer of tke defendant, asking 'that tke ease be taken from the jury on tke ground of contributory negligence, should have been granted, and an examination of the legal principles involved, and tke facts in tkis case will show clearly tke reasons for tkis conclusion.

Assuming, without deciding tke point, that Miller was, as tke appellant contends, either expressly or impliedly invited "by the defendant to come to the freight shed, and then to go personally and get the freight consigned to his employer, the measure of the defendant’s responsibility is thus stated in 20 R. C. L. 55, par. 51:

“The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty .to have his premises in a reasonably safe condition and to give warning' of latent or •concealed perils.”

There is, however, a corresponding duty to use due care imposed on the person invited, as is shown by the following-quotation from the succeeding paragraph in 20 R. C. L.:

“The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons even when he has invited them to enter. Hot- is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has- been sustained by -one while rightfully upon the premises. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the -owner or occupant an.d not known to the person injured that a recovery is permitted, •x- * * And hence there is no- liability for injuries from dangers that are obvious, or -as well known to the persons injured as to the owner or occupant.” Both of 'these statements from Ruling Case Law were quoted with approval ’by Chief Judge Boyd in Fulton Building Co. v. Stichel, 135 Md. 542, and they are fully sustained by both reason and authority. See Thompson on Negligence, Vol. 1, page 871; Cooley on Torts (3rd Ed.), vol. 2, pgs. 1258-1259; 29 Cyc. 453; The Gladiolus, 21 Fed. 418; Dwyer, Adm’x, etc. v. National Steamship Co., 4 Fed. 493; Caniff v. Blanchard Nav. Co., 66 Mich. 638; Dubrule v. Benjamin F. Smith Co., 68 Atl. Rep. 544, and Flynn v. Central R. R. Co., 142 N. Y. 439.

There is -a confusion of language iu some of the oases-, so that at first glance it is not always clear whether the decision rests on the ground of lack of negligence on the part of the defendant, or lack of due care on the part of the plaintiff, but a closer examination shows that, whatever language may be used, the real underlying principle of the decisions- is the contributory negligence of the plaintiff. And this1 contributory negligence arises from the failure of the plaintiff to use due care to avoid dangers which he knows from past experience exist on the premises 'to which he has been invited, or Which he should know exist because of his knowledge of the character and kind of premises to which he has been invited, or because the dangers are so- obvious- that any ordinarily prudent man would see them and guard against them.

Applying these principles to the present case, we find that Miller, the p-arty injured, according to his own testimony, had been going frequently to the freight shed of the defendant and to other freight shed's in Baltimore 'City for a period' of about two years immediately preceding the injury complained of, that he was familiar with the manner iu which freight was ordinarily piled iu these sheds, that, it was piled in comparatively the same way in all of them, that he had often gone on the defendant’s platform and gotten freight, that the defendant’s freight shed was open on both sides and there was plenty of light, that on the day he was injured there was a lot of freight on the platform, and at the point where Miller was it had been piled in such a Way as to form an aisle leading to the oil drums -consigned to- Miller’s employer. That Miller saw -all this freight, -that it was around ■the radiator which fell and injured him, that -there was: an empty barrel.in the aisle against or in cl-ose proximity to the .radiator, that the radiator seemed to Miller to be leaning, that he did not- know whether the barrel supported the radiator or not, but it might have supported-it, and that as soon as he moved the barrel the radiator fell on him, and boxes fell all around him. The only thing which Miller says he did not see was whether or not the barrel was supporting the radiator, and on this point he says: “I do not know whether the empty potato barrel held the radiator up. It may have, but I did not see it.”

We think the situation created by the relative positions of the barrel and the leaning radiator must have been obviou's to anyone who looked at them, and Miller was certainly not exercising due care if he moved the barrel away from the leaning radiator, without looking to see what effect the removal of the barrel would have on the radiator and the other freight piled around it. ' And if Miller had seen the situation he would not have been injured, for he said himself that if he had noticed that the barrel supported the radiator, he would have seen the latter start to fall and “could have grabbed it.”

It has long been settled in this State that a court is justified in saying that certain conduct is per se contributory negligence, where the ease presents “some such feature of recklessness as would leave no opportunity for difference of opinion as to its imprudence in the minds of ordinarily prudent men.” Hyde v. Blumenthal, 136 Md. 451; B. & O. R. R. Co. v. State, use of Wiley, 72 Md. 40; Rosenthal v. Durkin, 142 Md. 18.

Miller’s action, as testified to by himself, in going on a congested freight shed with which he was fully acquainted, and pulling aside the first piece of freight he found in his way, without stopping to see whether or not it supported other pieces of freight which were piled all around it, certainly constituted recklessness on his part, and as this act of recklessness was the proximate cause of the radiator, boxes, and other freight falling on and around him, and in jurying him, we are constrained to hold that he was guilty of contributory negligence which bars his recovery.

At the trial below, a verdict was rendered for the defendant, and the plaintiff appealed. However, even conceding that the trial court erred in the instruction which it gave the jury, no harm was done to the appellant, because the contributory negligence of Miller prevented a recovery. “To justify a reversal there must he substantial error apparent, and that to the prejudice, of the appellant.” Bannon v. Warfield, 42 Md. 22; Hanson v. Campbell's Lessee, 20 Md. 223. The judgment will accordingly be 'affirmed.

As we have seen above, this suit was brought under the provisions of section 58 of article 101 of the Code, and at the argument it was contended that the Tesas Company, Miller’s employer, not being selif-insured, should not have been made a party to the suit. The point was not raised on the record, and hence is not properly before us, but in order that the practice in this class of cases may be settled we will pass upon it.

Chapter 800 of the Acts of 1914 (article 101 of the Code), vas the original Workmen’s Compensation Act, and under section 57 of that act “any employer” was authorized to enforce the liability of any third party in the premises, for the benefit of the insurer and the employee. Several amendments have been made to this provision of the law, and under the last one (chapter 303 of the Acts of 1922, codified as section 58 of article 101), it is provided that “any employer, if he is self-insured (italics ours), insurance company, association or the State Accident Fund may enforce for their benefit, as the case may be, the liability of some other person.” In view of- this amendment of the law, as set out in section 58, supra, we think that the employer is no longer a necessary party to the suit, unless he is self-insured, and hence in the present case the Texas Company, Inc., should not have been made a party plaintiff.

Judgment affirmed, with costs.  