The record in this case contains two bills of exceptions, one to review the rulings of the Court below on the prayers and the other to consider its rulings on the admissibility of evidence.
At the trial of the case, the Court below granted the plaintiffs' two prayers, overruled the defendant's special exceptions to those prayers, and refused to grant the defendant's nine prayers.
The defendant's first, second, third, fourth, sixth and ninth prayers were demurrers to the evidence, and in substance, asked the Court to instruct the jury that, as matter of law, there was no evidence legally sufficient, under the pleadings, to entitle the plaintiff to recover, and, therefore, the verdict must be for the defendant.
The suit was brought in the Circuit Court for Baltimore County, by the plaintiff against the defendant, to recover damages for the death of Albert T. Wilson, on June 7th, 1910, the husband and father of the equitable plaintiffs while in the employ of the appellant corporation and engaged at the time of the accident as brakeman on a freight car attached to an engine of the defendant, on a northbound train from Baltimore City to Harrisburg, Pa., and caused by the alleged negligence of the defendant.
The declaration, in substance avers, that the defendant corporation, at the time of the commission of the injuries complained of, was operating a railroad in part *Page 488 through Baltimore county in the State of Maryland, and Albert T. Wilson, the husband and father of the equitable plaintiffs, was employed by it as brakeman; and then and there, at the time of the commission of the wrongs complained of, it became the duty of the defendant corporation to provide a reasonable safe place for him to perform his duties as a brakeman; that the defendant negligently and carelessly failed and omitted to provide for him a reasonably safe place in which to perform his duties in that the defendant corporation negligently and carelessly permitted a platform constructed on a certain signal tower, used by the defendant corporation for railroad purposes and located upon the east side of its railroad tracks at or near Phoenix Station, in Baltimore county and State, one of the stations of the defendant corporation, to be and extend so far over and near the tracks as to strike him, and thereby inflict and cause to be inflicted upon him such injuries and wounds as to cause his death; that at the time he was struck by said platform, he was upon a certain box car or freight car attached to an engine, the property of the defendant corporation, running north on a northbound trip from Baltimore City, and was, in being upon the car, engaged in the performance of his duties as a brakeman, and was using all due care and caution on his part; and that his death was due to the carelessness, negligence and default of the defendant corporation, and without any want of care on his part.
The bill of particulars, filed in the case states, that the immediate cause of Wilson's death was a platform constructed on the side of the signal tower at Phoenix, Baltimore county, Maryland, with which platform he came in contact while engaged in the performance of his duties as brakeman, and while using due care and caution on his part. The liability of the defendant corporation arises out of its negligent failure to provide for him a reasonable safe place in which to perform his duties as a brakeman. *Page 489
The case was removed to the Circuit Court for Harford County, and after trial resulted in a verdict for the plaintiffs, and from the judgment entered thereon, this appeal has been taken.
As we are of opinion, after a very careful consideration of the record now before us, that there was error in the rulings of the Court in granting the plaintiff's prayers, and in rejecting the defendant's first, second, third, fourth, sixth and ninth prayers which withdrew the case from the consideration of the jury, and as these prayers (which will be set out by the Reporter) present the important propositions upon which the ultimate decision of the case must turn, the remaining questions raised on the record become unimportant and will not be considered by us.
The accident which resulted in the death of Wilson, happened about 11:05 A.M. on the morning of June 5th, 1910, at and near Phoenix Station, in Baltimore county, one of the regular stations of the appellant corporation, on its railroad between Baltimore City and Harrisburg, Pa. The railroad at the point where the accident occurred runs north and south, and the deceased at the time he was struck, was upon a box or freight car, attached to an engine running north, on the north-bound main track from Baltimore. At Phoenix, east of the main tracks, is a passenger station, freight house and platform, and the station agent's dwelling. A public road, running east and west, crosses the main tracks a little north of the passenger station.
At the north of the public road, and east of the main tracks, the appellant sometime prior to 1895, erected just north of Phoenix Station, a signal tower and platform. The tower was a wooden building two stories in height, and from the tower to the east rail of the north-bound track was eight feet and one inch. The platform was between the first and second stories of the tower and was four feet wide running north and south across the front of the tower *Page 490 and projected five feet ten inches from the face of the tower.
The testimony on the part of the plaintiff shows that on the morning of the accident the deceased was seen, as the freight train approached the tower, "on the first or second steps from the top of a ladder, on the north end of a freight or box car, which was used in ascending or descending from the top of the car. He was on the ladder supposed to be going up and looking back to the rear end of the car when his head came in contact with the platform on the signal tower, and he was knocked on the top of the car, and afterwards fell to the ground. The train was running at an estimated speed of about eight to twelve miles an hour.
The plaintiff's witness, Weller, testified that Wilson was a brakeman on the train, and had worked under the witness as such, from June 6th, 1907, until the date of accident on June 6th, 1910, a period of three years, and had passed the platform and tower during that time, with the witness on the trains, going up and coming down, at least twenty-five days in each month; that the platform was on the tower when it was erected and witness had never known any one to be struck by it, nor did he known it was close enough to hit any one on the train. He further testified, that by the rules of the company, persons on the train including brakeman, fireman and conductor, were required to look for the signals from the tower while the trains approached and passed it. "According to the rules, they are looking out for their own safety in that case."
The testimony of the carpenter, Dayhoff, was to the effect, that both from the measurements made by him the day of the accident, and by the measurements made to cars standing in a train on the track in front of the tower, some days before the trial of this case, that the platform did not extend far enough from the tower to overlap the edge of cars on the track in front of the tower, even making liberal allowance for the slight difference in the level of the front *Page 491 of the tower on the day of the accident and the day the measurements were made with the cars actually on the track.
While there was testimony tending to show that the front of the tower had settled three inches, in the first two or three years after it was built and there were two wooden brackets or beams, which projected six inches from the north and south edges of the platform and towards the track, which had been placed there for ornamental purposes, yet the undisputed evidence is, that there had been no change in the position of the platform and tower during the time Wilson was in the employ of the company and that the platform did not so overlap the passing cars as it could not be passed in safety by employees on the trains by the exercise of ordinary care and prudence. The platform had been in use since the year 1895, and the deceased had passed it in safety at least twenty-five days in each month in going south and north over the defendant's road, while performing his duties as brakeman. The platform, also, was open and obvious, and was plainly visible to any one approaching the tower on a north-bound freight train for a distance of over two hundred yards. The deceased had ample space on the car to stand or sit without coming in contact with the platform and no negligence can be imputed to the company, even if it be assumed, that the platform was not high enough to allow a person to pass under it, while standing on top of the car or while occupying the position of the deceased on the car, at the time of the accident, as testified to by the plaintiff's witnesses.
We think, without reviewing the authorities at length, that the cases of B. O.R.R. Co. v. Stricker, 51 Md. 47; Yates v.McCullough, 69 Md. 370; Abbott v. B. P.R.R. Co.,75 Md. 152; State, use of Hamelin, v. Malster, 57 Md. 287; Wood v.Heiges, 83 Md. 268; Egner v. Rwy. Co., 98 Md. 397, and the more recent cases of Moret v. Car Works Co., 99 Md. 472, andTkac v. Md. Steel Co., 101 Md. 179; Gans Salvage Co. v.Byrnes, 102 Md. 247; Winter v. United Ry., *Page 492 115 Md. 72, are applicable here, and conclusive against the right of the plaintiffs to recover in this case.
In Stricker's Case, supra, JUDGE BARTOL, in delivering the opinion of this Court, said: "To entitle the appellee to maintain this suit it was necessary to prove that the company had been guilty of negligence which directly caused the injury — that is to say, that in the relation which existed between the appellee and the company, the latter had failed or neglected to perform some duty towards the appellee which was devolved upon it by law; and secondly, it must appear that the appellee was not guilty of any negligence on his part, or any want of reasonable prudence and caution to avoid the accident.
1st. As to the alleged negligence on the part of the company. In what did this consist? It was said it was negligent in constructing the bridge so low that a conductor or brakeman could not pass under it in safety, on top of a house car where his duty required him sometimes to be.
But there is no evidence to support this position; on the contrary, all the proof shows that the employees of the company and the appellee among them, every day passed under the bridge safely by observing the simple and easy precaution of stooping or sitting down while passing under the bridge.
No negligence can be imputed to the company because the struts of the bridge were not high enough to allow a person to pass under them, standing upright on the top of the cars. Baylor v.R.R. Co., 11 Vroom, 23.
It was not required of the appellee to stand on his feet, while passing the bridge; he was in that position, according to his own statement, because his back was turned towards the bridge; "he did not think of it, and did not know he was near it;" but he knew it was there; it was in full view only a few moments before, when he started his train from a point only two hundred or three hundred yards distant.
Nothing is better settled than that "the implied contract between the employer and employee is that the latter take *Page 493 upon himself all the natural risks and perils incident to the service." Moran's Case, 44 Md. 292. As expressed by COCKBURN, C.J., in Clarke v. Holmes, 7 H. N. 943. "When a servant enters upon an employment he accepts the service subject to the risks incidental to it."
We have thus quoted at length from Stricker's case, because the facts of that case are almost identical with the facts of the case at bar, and the principles of law announced in that case are not only applicable here, but have been approved and applied in similar and later cases decided by this Court.
In the case now before us, we are of opinion there was a failure of evidence to prove such negligence on the part of the defendant or its agents, as alleged in the pleadings, to entitle the plaintiffs to recover and there was a legal insufficiency of evidence to show that the death of Wilson was caused by the failure of the appellant to discharge any of its legal duties towards him.
On the contrary, the evidence shows, that the deceased directly contributed to the accident which caused his death by his own negligence and want of care, in failing to notice the platform as he approached the tower, and in violation of a duty which required him to observe the signals on the tower, for his own safety and that of his train.
The evidence is undisputed that at the time of the accident he was facing the rear of the train looking south with his back to the platform and tower, although he had an unobstructed view of the platform of over two hundred yards from the time the train left the water tank, until it reached the tower.
Whether he was standing on the ladder at the end of the car, as testified to by the plaintiff's witnesses or was walking on the top of the box car, as stated by some of the defendant's witnesses, at the time of the accident, it is immaterial, because in either position he was clearly guilty of such contributory negligence, under the facts of this case, as to bar a recovery. *Page 494
As this conclusion disposes of the case, it will not be necessary for us to consider the other questions raised on the record. For the error in granting the plaintiff's prayers and in rejecting the defendant's prayers, which sought to withdraw the case from the consideration of the jury, the judgment will be reversed, and as it is apparent the appellees can not recover, a new trial will not be awarded.
Judgment reversed, without awarding a new trial, with costs.