This is an action to recover damages sustained by the plaintiff while in the employment of the defendant, the South Baltimore Car Works.
The verdict of the jury was in favor of the plaintiff and this is the defendant's appeal.
At the close of the whole case the plaintiff and defendant each offered several prayers. There was also an exception taken to the admission of certain testimony; but the conclusion we have reached renders it unnecessary to do more than discuss the question presented by the ruling upon the defendant's *Page 101 first and second prayers, by which it was sought to take the case from the jury. The learned Court below rejected these prayers, but we are of opinion, after a careful examination of the record, that they should have been granted. Both of them deny the legal sufficiency of the evidence to show such negligence on the part of the defendant company in the discharge of its legal obligations to the plaintiff as would entitle him to recover. We will proceed, therefore, as briefly as may be, to state the facts relied on by the plaintiff to show a failure of duty and consequent negligence in the part of the defendant.
The defendant is engaged in the business of building freight cars. At the time the plaintiff was injured he was working at a boring machine in defendant's shop. In another part of the shop, but in the same room, about 100 feet distant from him, one of his fellow workmen was operating a machine which some of the witnesses called "a sticker." Its proper name is "A 12-inch Fay outside moulder." It is thus described: "It is a machine in general use for making moulding work. It is about 8 feet long, 5 feet wide and 3 feet high. The piece of wood which is to be cut is placed on the bed of the machine, and then pushed forward by means of rollers and brought into contact with the knife-blades, which do the cutting. These knife-blades are attached to what is called a revolving cylinder. It is not, however a cylinder in the geometrical sense, as it has four flat sides. This cylinder so called revolves on its axis. To each of the four flat sides there is attached a knife-blade. These knife-blades vary in size and shape, according to the particular style of moulding to be done. The one which hurt Schaefer, the plaintiff, was about 12 inches long, 4 inches wide and one-half inch thick. These knife-blades are not a permanent part of the machine, but are removable at pleasure, and are changed from time to time in accordance with the work on hand. Each knife-blade is fastened to the cylinder by means of five steel bolts and nuts. In each of the four faces of the cylinder is a slot extending its entire length, 12 inches. The heads of the bolts are made *Page 102 to fit tightly in this slot, the body of each bolt passes through an opening in the knife-blade, five such openings being provided, one for each bolt. A nut is then placed on the end of each bolt, the nut is tightened and the knife-blade is firmly clasped to one of the flat sides of the cylinder, and held in position by the five bolts and nuts. The sharp edges of the knife project about a quarter of an inch over the edge of the cylinder, so that they are left free to do the necessary cutting. The rapid rotary motion of the cylinder brings the knife-blades successively into contact with the wood, and thus cuts or moulds the same into the desired shape."
The witness, Junker, who was operating the moulder at the time of the accident testified that he did not know how the accident happened; that the blade flew off and struck the plaintiff; that the blades had been fastened in position by the assistant foreman who usually attended to the adjustment of the machine; that the bolts used were selected by the assistant foreman from a number of bolts kept in a box alongside the machine; that they were cutting a piece of white pine which was not unusually difficult to cut; that he had no reason to believe that the cutting of such a piece of wood would cause the blade to fly off and that he had never heard of such a thing happening before during the two years he had been operating the machine. The witness, Kelly, testified that he saw the plaintiff fall and that after the accident he examined the machine and discovered that one of the knives was off of the cylinder and that two of the five bolts which had been used to keep it in place were broken and the other three were bent or twisted. The plaintiff testified that the knife struck him.
This is all the testimony we find in the record relating to the accident, and taking it as true we are unable to ascertain from it whether the breaking of some and the twisting or bending of the other bolts was caused by defects in the bolts and nuts, or by the negligent and faulty adjustment of the machine by a fellow servant of the plaintiff. Indeed with the exception of the fact that they broke there is nothing in the evidence to *Page 103 show that either the machine the bolts or the nuts were in any respect defective.
Assuming this to be so, however, the plaintiff contends that this is a case in which negligence may be inferred from the breaking of the machinery and the consequent injury of the plaintiff, in other words that it is a case to which the maximres ipsa loquitur properly applies. In order to test the correctness of this proposition it will be necessary to state the well-established rule regulating the duty of employers to employees. That rule is thus clearly and briefly stated in the recent case of Wood v. Heiges, 83 Md. 257. "When the servant engages to perform certain services for a compensation, it is implied as a part of the contract that, as between himself and his employer, he assumes all the risks incident to the service. And these risks include such as arise from the hazardous character of the service and from the negligence of other servants in the same employment * * But the master himself is bound to use ordinary (that is due and reasonable) care and diligence to provide proper materials and appliances to do the work and in the selection and employment of competent and careful fellow servants."
It is obvious, therefore, that the plaintiff must not only show that he was injured, because the bolts were defective, but he must go one step further and offer evidence legally sufficient to show that the defendant did not use reasonable care in procuring proper bolts for the adjustment of the knife. But there was no such evidence offered. On the contrary the evidence is that both the machine and its appliances including the bolts and nuts were purchased from Fay Co. shown to be first-class manufacturers of machinery. As we have said, the first question therefore which presents itself is whether the mere fact that the bolts broke is legally sufficient evidence of defendant's negligence. In discussing this question it must not be forgotten that the defendant's foreman went upon the witness stand and offered such explanation as he could in regard to the breaking of the bolts, for in this respect this case differs from most, if not all, the cases in which the maxim res *Page 104 ipsa loquitur has been applied to such cases as this. Thus inColladay's case, 88 Md. 91, it is said "There was no attempt to explain or refute the negligence imputed by the plaintiff's testimony, and in the absence of this explanation on the part of the defendant the law raises the presumption of negligence."
The case just cited was much relied on by the plaintiff, but we think it clearly distinguishable from the case at bar not only by the fact that there was a failure even to make any attempt to account or explain for the falling of the elevator, but by reason also of the evidence tending to show that the ropes which supported the elevator were worn and frayed — thus showing that apermanent part of the appliance, and therefore the appliance itself, was in a dangerous condition which could have been discovered by proper inspection. But in addition to these facts, it was in evidence that the elevator fell at a time when it was not in motion, from which the jury might well have inferred neglect on the part of the defendant to furnish a safe appliance. The state of case before us now is altogether different. The testimony shows that immediately before the accident the bolts were selected and used to fasten the knives on the machine by the person whose duty it was to do that work. He testifies they were in perfect condition, that he examined them and there was nothing the matter with any of them that he could see, that he left nothing loose and fastened everthing, he fastened the blade on all right * * * He further testified that after the blade came off he noticed that the third and fourth bolts were broken off and the nut broken off the bolt; * * that he could not explain what it was that made those bolts break, "unless the frost had set in, as it generally does in the winter, and more bolts break than in summer." When asked what effect the frost would have, he replied "It has a tendency when you tighten the nut up on the bolt to crack it and make a hidden defect" which could not always be discovered by looking at the bolt before putting it in, but that he had not discovered anything of the kind when he selected and examined the bolts the morning of the accident." *Page 105 As was said in Prehl v. Albany Railway, 30 Appellate Division (N.Y.) 169: To punish the defendant because it cannot explain the cause of the break "is not to punish it because it has done wrong, but because it does not know what we wish to find out."
It has been held in a number of cases that the sudden breaking of machinery is not sufficient of itself, to warrant the Court in sending the case to a jury. Thus the mere fact of the breaking of a chain, Brymer v. Southern Pacific E. Co., 90 Cal. 496; the unexplained bursting of emery wheel, Simpson v. PittsburgLocomotive Works, 139 Pa. St. 245; the parting of a brake-chain on a car, Sack v. Dolese, 137 Ill. 129; the bursting of a fly-wheel, Prehl v. Albany Ry., supra; the breaking of a car-wheel from some cause unknown, Morrison v. Phillips,44 Wis. 410; the breaking of a derrick, Duffy v. Upton,113 Mass. 247, were held not sufficient to justify an inference or presumption of negligence. On the contrary the plaintiff cited a number of cases to sustain his position that the mere breaking of appliances or machinery is evidence from which the jury may infer negligence, but it will be found that few or none of them are in point. Thus in the case of Graham v. Badger, 164 Mass. 42, the plaintiff was injured by the falling of a block from a derrick caused by the breaking of a rope. It appeared by the evidence that, as in Colladay's case, supra, the rope was worn and frayed and that it broke at the place where it had broken before and had been "spliced." And as in Colladay's case, it was held that the rope was a permanent appliance which the plaintiff had a right to expect the defendants would use due care to keep in good and safe condition. In the case of Coleman v.Mechanics Iron Foundry Co., 168 Mass. 254, the breaking of an iron rod was the cause of the injury. But in addition to the mere breaking of the rod it was in evidence that the defendant had the machine of which the rod was a part, reconstructed, and that the rod, which was originally designed to carry one iron ball weighing 113 pounds was made in the reconstructed machine to carry double that weight. There was also evidence of the fact that the break *Page 106 was not "a fresh" one — not "freshly parted," and that the rod had been subjected to vibration which caused crystallization. InGriffin v. Boston, c., Railroad, 148 Mass. 143, and inRose's case, 20 Blatchford, 411, it was held that in the absence of any explanation, and when the defendant "stood mute," as in the Colladay case, the jury might infer negligence, in the one case from the separation of the train in consequence of the spreading of a link and in the other from the explosion of a boiler. In the case at bar, however, as we have already said the defendant not only put witnesses upon the stand to explain, as far as it could, the cause of the breaking of the bolts, but their testimony affords not the least proof of negligence; on the contrary it shows due care on the part of the defendant in providing good and safe machinery and appliances, as well as care on the part of the assistant foreman whose duty it was to adjust the knives. The testimony of these witnesses is uncontradicted and it follows, if we are correct in our conclusion that resipsa does not apply, the mere breaking of the bolts was not legally sufficient evidence to warrant an inference of negligence, that there was nothing in the case to submit to the jury. In the recent case of Benedick v. Potts, 88 Md. 55, McSHERRY, C.J., delivering the opinion, it is said, quoting fromThompson on Negligence, 574, that the maxim is applicable to two classes of cases only; first, "when the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition or event that is, in its very nature, so obviously destructive of the safety of person or property, and is so tortious in its quality as, in the first instance at least, to permit no inference save that of negligence on the part of the person in the control of the injurious agency." Of course if this case is included in either, it must be in the second class above mentioned, that is to say the circumstances must be such as to compel in the first instance without explanation, an inference of negligence. We have been unable to find any such condition here. Indeed we see nothing more than the fact of the *Page 107 breaking of the bolts which under the circumstances of this case, it seems to us has no more probative force to establish negligence than the mere explosion of a boiler or the breaking of a chain. The talking facts are absent.
But it was also contended that the jury was entitled to infer negligence from a want of inspection. There can be no doubt of the general rule which requires the employer, after providing proper and safe machinery to supervise, examine and test it as often as custom and experience require. Thompson on Negligence, 984. The difficulty, however, in this case is that assuming that the defendant failed in the duty of inspection there is an absence of all proof that the defect, if there was one, could have been discovered if an inspection had been made, and the burden is upon the plaintiff to supply such proof.
It is possible to infer from the nature of this accident that the break resulted from a defect in the materials supplied by the defendant, or that it was caused by an improper and negligent adjustment of the machine by the foreman who was a fellow workman of the plaintiff. It was the duty of the plaintiff if he relied on failure to inspect to have offered some testimony which would have justified the jury in finding that the defect causing the injury was one which could have been discovered by the usual and ordinary methods of inspection commonly adopted by those in the same kind of business which was conducted by the defendant. "Absolute safety is unattainable and employers are not insurers. They are liable for the consequences, not of danger, but of negligence, and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business."Bailey, Master's Liability, p. 23. There is nothing in the testimony from which it could be inferred that the defect was discoverable, and until such evidence was produced the jury could not have properly found that a failure to inspect was the cause of or contributed to the happening of the accident.
But in addition to this view it was also forcibly suggested by defendant's counsel that the duty of inspection *Page 108 does not extend so far as to require the employer to attend to the proper adjustment of the bolts, nuts and knives of the moulding machine which was in use when the plaintiff was injured, and that, therefore, if the break and resulting flying off of the knife was the result of such faulty adjustment by a fellow workman, there can be no recovery. We have pointed out the fatal lack of testimony to show whether the accident was caused by defects or faulty or imperfect adjustment. While this proposition is supported by authority, it would seem to be reasonably clear upon general principles. It is shown by the evidence that the machine here in question had to be adjusted from time to time according to the particular work to be done and that this adjustment was incident to the ordinary use of the machine. This duty was performed by the witness Koeble, who it is conceded was a fellow workman of the plaintiff — and it would seem to be clear that if the master is bound to see that these adjustments are carefully and skillfully made the rule which holds that the employer is not responsible for injuries caused by the negligence of a fellow servant might as well be abrogated altogether. The general rule regulating the employer's duty relating to such adjustments is thus expressed in sec. 23 Bailey's PersonalInjuries, c. "The duty of the master to see to it that the machinery furnished for the use of his servants is reasonably safe does not extend so far as to require him to attend to the proper regulation of those parts which necessarily have to be adjusted in the course of their use, and with regard to the particular work to be done, and the adjustment of which is incident to the ordinary use of the machine." It was so held inEichler v. Hanggi, 40 Minn. 263; Burns v. Sennett,99 Cal. 363; McCampbell v. C. S. Co., 144 N.Y. 555. InMcGinty v. Alhot Reservoir Co., 155 Mass. 183, the injury was caused by the falling or pulling up of a post to which one of the guy ropes of a derrick was attached. The Court (MORTON, J.), said that the moving and securing the derrick was one of the duties of the workmen and connected with and a part of the work in which they were engaged. It was part of their duty to *Page 109 put down the post, and if there was any negligence in the manner in which it was placed or in selecting the place and mode of adjustment of the various parts of the derrick, it was their negligence and not the negligence of the master. There are other cases to the same effect, but we do not deem it necessary to multiply authorities, because, as we have said, the proposition seems to be clear upon reason and general principles.
It was suggested on behalf of the plaintiff that it was the duty of the defendant to have tested the bolts and nuts before using them. But, if as we have said, the defendant was not bound to inspect this adjustable machine, to provide against a faulty adjustment, we think it performed its duty when, as shown by the uncontradicted testimony in the case it exercised reasonable care in selecting the machine and the various adjustable appliances used with it. It was not suggested by the plaintiff what kind of a test, other than the actual use, could have been made. If it had been shown by the evidence that there was a usual and ordinary way commonly adopted by persons using like machinery, and that the defendant had failed to use such a precaution, the jury might have been properly permitted to infer negligence. The practical test relied on in this case was the actual use. It was said in Stringham v. Hilton, 111 N.Y. 197: "The same machine was continued in use for several years. When used with ordinary care there was no reason to suppose harm or mischief could result." "This fact," said the Court, "brings the case directly within the rule that when an appliance or machine not obviouslydangerous has been in daily use for a long time and has uniformly proved adequate and safe, its use may be continued without imputation of negligence." It may be that the jury was of opinion that in spite of the fact that the defendant used due care to supply safe and proper machinery and appliances, and careful and competent fellow servants, yet it was liable if it failed to make some test unknown to them or to it. "No jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business, is a negligent *Page 110 way, for which liability shall be imposed." Bailey's Master'sLiability, p. 24. Non constat that there was any other test than that of actual use, commonly adopted, after purchasing the machinery from first-class reputable manufacturers. If any such custom prevails the burden was upon the plaintiff to offer proof of it. Juries cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community. Titus v. Railroad Co., 136 Pa. 626. Bailey'sMaster's Liability, supra.
It follows that the judgment appealed from must be reversed without a new trial.
Judgment reversed with costs.
(Decided December 4th, 1902.)