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 *219City, 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.
*220The 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 *221¡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.
*222Though 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 *223Hot 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,