Baker v. Maryland Coal Co.

Fowler, J.,

delivered the opinion of the Court.

This is an action to recover damages for injuries alleged by the plaintiff to have been sustained by him by reason of the wrongful and negligent act of the defendant. The defence is contributory negligence. The controlling question is whether the Court below was right in instructing the jury: first, that there was no evidence in the case of negligence on the part of the defendant; and, second, that the alleged injury was the direct result of négligence on the part of the plaintiff himself, and that therefore their verdict must be for the defendant.

The principles of law applicable to cases like this have been frequently and so fully settled in this State by the decisions of this Court, that they require no farther discussion at this time. The only difficulty is to ascertain and fix *27 definitely the significance and effect of the admitted facts in each particular case. As has been said (Maugan’s case, 61 Md. 60 ), “Accidents occur and injuries are inflicted under an almost infinite variety of circumstances, and it is quite impossible for the Court to fix the standard of duty and conduct by a general and inflexible rule applicable to all cases, so that a departure from it can be pronounced negligence in law.” In the same case it is also said that the evidence of contributory negligence must be very clear to justify a Court in taking the case from the jury : “ It must present some prominent and decisive act in regard to the effect and character of which no room is left for ordinary minds to differ.” And in the case of Cook v. Street Railway Company, 80 Md. 558 , there is a clear exposition of the rule, which will be found, we think, particularly applicable to the case before us. In the case just cited the present Chief Justice McSherry, delivering the opinion of the Court, said, “Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the Court to determine its quality as matter of law.”

Having thus briefly alluded to the general principles, we will ascertain what is the act of the plaintiff relied on by the defendant to show contributory negligence. To do this will require a brief recital of the evidence.

The defendant company is the owner of a coal mine in Allegany County which is operated by means of a tram-road running through a tunnel which is constructed in the mine. Just before the happening of the accident by which the plaintiff was injured a change was made in the mode of moving the cars over this tramway. For a long time the cars were drawn by horses, but now and at the time of the injury complained of the motive power was derived from a stationary steam engine placed outside the mine, to which *28 was attached a wire rope, which in turn was attached to the cars. In order to use the new motive power with advantage it was found necessary to straighten the tramway, and the result was that in many places the cars were brought so near to the sides or ribs of the tunnel that there was not room enough for a man to stand safely in the remaining space, while the cars were moving. It appears that the change from horse to steam power was made in a very few days, between the seventh and twelfth of December, and that shipments of coal by means of the new system were begun on the thirteenth of December, and before the tunnel through which the cars were drawn had been made sufficiently wide at all places so that a man could safely work the brakes attached to the cars, and operate the signal wire communicating with the engine at the mouth of the mine. It also appears from the testimony of the plaintiff that at the time of the accident he was acting as front brakeman, and that it was a very important part of his duty to put down the brakes when there was danger that the cars would run upon and cut the wire. When injured the plaintiff was at his post on the front platform watching the wire rope, and discovering that it “was not rolling on the track right,” he jumped off the car, as it was necessary for him to do, for the purpose of checking the train by means of brakes which were attached to the side of the car, and which could be worked only by one who was walking or running with the train, between it and the side of the tunnel. While in this position, where it is clear from his testimony his duty called him, he was suddenly caught between the side of the moving cars and the side of the tunnel and severely injured. The evidence shows that men had been and were at the time of the accident, engaged in widening those dangerous places,, similar to the place where the plaintiff was injured. The plaintiff did not know of this place being dangerous ; but, on the contrary, he had always found it safe before the straightening or relocating of the tracks. The witness Recker, who was mine boss, testified *29 he did not know of the danger there, and another witness said that immediately after the accident the tunnel was sufficiently widened there to ensure safety. Of course all this testimony of the plaintiff and his witnesses was more or less contradicted by the defence ; but mere contradiction can never justify the Court in finding a legal insufficiency of evidence.

We have not been able to find in the testimony of the plaintiff, nor in that of the defendant, evidence of any prominent and decisive act on the part of the former which should convict him of negligence under all the “ attending and surrounding circumstances ” of the case. Admitting the danger to which the plaintiff was exposed by the act of the defendant, it is urged that the plaintiff should have known it and protected himself from it; .or that he undertook the work with his eyes open and with a knowledge of the necessary dangers connected with the employment he assumed the risk, and must himself suffer the consequences. But it appears to us that the danger to which the accident is ascribed was not one of those ordinary dangers which the employees should be required to look out for and avoid, but rather one of those dangers which they may reasonably expect that proper precaution had been adopted by the employer to remove. It is not reasonable to suppose that the employees of the defendant would be subjected to such a danger in the performance of the ordinary work of taking the coal from the mine, nor was it unreasonable for the plaintiff to assume, that the dangerous places in the tunnel had been made safe. Abbotts’ case, 75 Md. 160 ; Stricker’s case, 51 Md. 69 ; Moran’s case, 44 Md. 292 . All danger was removed immediately after the accident, and there is nothing to show that the same could not have been accomplished before the damage was done, if the defendant had acted with prudence and caution. We do not think it at all clear that the plaintiff could have been expected to know of the danger. On the contrary, there were many others, who had equal opportunities, who did not know of it. Having seen men engaged *30 in widening the tunnel at the narrow places, it was reasonable to suppose, or one might be led to expect, that all liability to danger from that source had been obviated. Without prolonging this opinion by further detailed examination of the evidence, we think the case should have been allowed to go to the jury.

(Decided June 17th, 1896).

We see ho objection to the prayers of the plaintiff. They appear to' put the whole case fairly and fully to the jury.

Judgment reversed and new trial awarded.