(117 Md. 198) BALTIMORE & O. R. CO. v. WILSON. (Court of Appeals of Maryland. Jan. 11, 1912.) ity for injuries to a servant, caused by the col- 1. APPEAL AND ERROR (§ 1005*) CONCLU- ERY. In a case properly submitted to a jury under suitable instructions, and approved by the trial court, upon motion for a new trial, the verdict is conclusive as to the amount of recovery. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*] 2. MASTER AND SERVANT (§§ 101, 102*) DUTY OF MASTER-SAFE PLACE TO WORK. A master is bound to provide a reasonably safe place for the servant to work in. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*] 3. MASTER AND SERVANT (§ 286*) -ACTION FOR INJURIES-QUESTION FOR JURY-NEGLIGENCE OF MASTER-PLACE FOR WORK. In an action by a watchman employed by a railroad for personal injuries received in the collapse of a bridge, held, on the evidence, that the question of defendant's negligence in failing to provide a reasonably safe place for work was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*] 4. TRIAL (8 253*)-INSTRUCTION-IGNORING ISSUES AND DEFENSES. In an action against a railroad company for personal injuries to a watchman, resulting from the collapse of a bridge in the course of construction, a requested instruction, requiring the jury to find, either that the railroad did not use due care in planning the construction of the bridge, or in inspecting the work during its progress, was properly refused, since it ignored the question of its liability, if it did not use due care in selecting the contractor to build the bridge, or it was not constructed in accordance with the plans. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*] 5. APPEAL AND ERROR (§ 1078*)-BRIEFS AND ARGUMENT-WAIVER OF EXCEPTIONS. An exception to the direction of a verdict, not questioned on appeal, will be regarded as having been waived. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4256-4261; Dec. Dig. 8 1078.*] 7. MASTER AND SERVANT (§ 103*)-MASTER'S LIABILITY - DELEGATION OF DUTY-PLACE FOR WORK. A master's duty in respect to providing the servant a safe place to work cannot be delegated. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*] 8. MASTER AND SERVANT (§ 185*)-INJURY TO SERVANT-SAFE PLACE TO WORK-INSPECTION-DELEGATION OF DUTY. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*] 9. MASTER AND SERVANT (§ 265*)-INJURY TO SERVANT-ACTION FOR INJURIES-RES IPSA LOQUITUR. In an action against a railroad by an employé for injuries resulting from the collapse of a bridge in the course of construction, where the evidence showed a construction of falsework for a large and heavy railroad and resist the vibration necessarily incident to bridge, specially designed to bear great weight the direction of eminent engineers, and in acthe passage of trains over it, constructed by tual use for about two months, suddenly collapsed, and in which defendant offered no adequate explanation for its collapse, the doctrine of res ipsa loquitur did not apply, so as to make the falling of the bridge prima facie evidence of negligence on the part of the defendant; but plaintiff could not recover without showing that the defendant was guilty of actual negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*] Appeal from Circuit Court, Queen Anne County; James A. Pearce, Wm. H. Adkins, and Philemon B. Hopper, Judges. Action by William H. Wilson against the Baltimore & Ohio Railroad Company and another. There was judgment for plaintiff against the defendant named alone, and it appeals. Reversed, and remanded for new trial. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. John E. Semmes, Jr., and John E. Semmes, for appellant. John S. Young, for appellee. STOCKBRIDGE, J. [1] The present case derives its chief importance from the fact that the jury before which it was tried rendered a verdict in favor of the plaintiff for $20,000, one of the largest verdicts in an action for damages for personal injuries rendered in this state. But with the amount of the verdict this court has nothing to do. That was a question for the jury, if the case made out was one which it was proper to submit to a jury, under suitable instructions, and for the court in which it was tried, upon the motion for a new trial. The questions of law upon which the case is brought before this court are few in number; but one of them at least is of considerable importance. [2, 3] The fourth bill of exceptions was taken to the action of the trial court in its rulings upon the defendant's prayers, the first of which was to the effect that there A railroad employing a contractor in the was no legally sufficient evidence to entitle construction of a bridge cannot escape liabil- the plaintiff to recover. As this went to the for the injuries so sustained that this suit is brought. The plaintiff called as witnesses Joseph Brandt, who had worked at bridge building for about 10 years, Murray Wood, who had been similarly employed between 5 and 6 years, Christopher Burns, also a bridge worker for 51⁄2 years, George Horner, similarly employed for some time, and Carroll Boyd, also a bridge worker for about 6 years. After testifying to the method of constructing the falsework, they gave evidence which may be epitomized as follows, without quoting the precise questions and answers of each witness: On the afternoon of September 22d, for the purpose of driving a bolt home in the new steelwork, a portion of a rail, weighing in the neighborhood of 1,200 pounds, was used as a rammer. While being so used, the rail or rammer broke, and a piece of it fell, striking and cutting off an end or corner of one of the caps below. This, it was subsequently testified by the witness Reynolds, who was a foreman on that part of the work, and who was called by the defendant, had no effect upon the strength of the tower. But it was further testified to by the witnesses for the plaintiff that the timbers on one of the towers were out of plumb, by some that they had buckled, and that this condition became worse as time progressed, and that it had increased to such a degree that it was the occasion of conversation among the men employed on the work as they were returning home the evening before the accident, and the attention of the foreman, Reynolds, was called to it. Most of the witnesses place the point of what they describe as "buckling" at the cap where the piles and the first set of the entire case of the plaintiff, a succinct statement of the facts as testified to by the witnesses becomes germane to the consideration. The Baltimore & Ohio Railroad had a singletrack bridge over the Susquehanna river, which was being reconstructed and converted into a double-track steel bridge. This involved the taking down of the previously existing structure. For this purpose, and the further purpose of continuing the operations of the railroad, there was erected falsework to support the track while the work was proceeding, and which falsework was designed to bear the weight of the new bridge during the progress of the work, together with the machinery necessarily employed in the construction. The plan was that the bridge, when completed, should rest upon piers built of concrete; the spans between the several piers being of various lengths. The main span between the Cecil county end of the bridge and Watson's Island was to be 377 feet in length. To support the construction of this span and the track of the railroad during the time of construction, two towers were erected. The manner of erecting these towers was: First, double rows of piles were driven in the bed of the river 30 feet apart; each row containing 28 piles. The rows of piles were parallel with the general direction of the river, and at apparently a right angle with the general direction of the bridge and railroad to be constructed above. These piles were then capped with heavy timber, and upon this capping were erected uprights of 12 by 12 timbers, the outer of which, or possibly all, were battered; that is, inclined, so as to resist and distribute the strain from above. The upper ends of these uprights were in turn capped, and the same method 12 by 12 timber uprights came together. of construction continued until the desired height was reached, so that the railroad tracks were elevated about 90 feet above mean tide. In addition to the battering, the uprights were braced by longitudinal and X braces. That these workmen were correct is corroborated by the witness Reynolds, who testified that the piles did lean out, though he denies that there had been a technical buckle; and he also testifies that they had been in this condition from the time they were first capped, but insists that the safety of the structure was not affected thereby. After the construction of these towers, the trains of the defendant company were run upon and over this falsework without For the purpose of the prayer now being accident from about the middle of July, considered, the evidence of the witness of 1908, until the 23d of September. Shortly the defendant, Reynolds, is immaterial, and after 6 o'clock on that morning, a passen- is referred to only to show that the condiger train, west bound, passed over the tions testified to by the plaintiff's witnesses, bridge. This train passed the plaintiff, who who were practical men, rather than experts, was a day watchman on the bridge, employ- is amply supported. The rule is too well ed by the defendant company, not far from settled to require any citation of authorthe west end of the bridge. The plaintiff, ities that a master is bound to provide a after this train had passed, continued on reasonably safe place for the servant to work across the bridge to the east end, and then in. The plaintiff's evidence tended to show started to return across the bridge. He had that the place provided was upon a tempoproceeded but a short distance, when he met rary structure of high elevation, required an east-bound freight. The locomotive and to sustain heavy weights and vibration, two or three cars of this train passed him, where one of the supports had buckled, or when the structure collapsed, carrying down was out of plumb, or had sprung; and that the falsework and cars, together with the this condition had been increasingly manifest plaintiff, 90 feet. By this fall, the plaintiff up to the time of the happening of the acciwas severely injured; and it is to recover dent. This evidence, if believed by the jury, would clearly have warranted an inference of res ipsa loquitur can never apply in a that the accident was due to the negligence case arising between master and servant. of the defendant in failing to provide a reasonably safe place for the plaintiff to perform his duties; and the refusal of the trial court to grant the first prayer of the defendant was entirely correct. [4] The defendant's third prayer was likewise properly refused. It required the jury to find, either that the railroad company did not use due care in planning the reconstruction of the bridge, or in inspecting the work during its progress, entirely ignoring the element that the bridge was or should have been constructed in accordance with the plans, or that the railroad company did not use due care in selecting the American Bridge Company to reconstruct the bridge. The railroad company could not in any such manner relieve itself of its legal obligation to provide its own servant, whom it placed on the work, with a reasonably safe place in which to do his work. Nor is it perceived how the defendant was in any way injured by the granting of its second prayer in connection with the eighth prayer of the plaintiff. This prayer of the plaintiff has been repeatedly passed on and approved by this court; and the effect of the joining to it of the defendant's second prayer was to instruct the jury more precisely as to the burden of proof in respect thereto. The plaintiff's third prayer was upon the measure of damages, in the event that the jury found a verdict for the plaintiff, and his seventh prayer defined the measure of care or duty owed by the master to the servant, and were both in the form sanctioned by long usage. [5] The correctness of the granting of the prayer in favor of the American Bridge Company, by which a verdict was directed in favor of that corporation, has not been questioned in this court; and that exception is to be regarded as having been waived. There remain for consideration plaintiff's prayer, numbered 21⁄2, and defendant's prayer A, both of which raise the same question, namely, whether, in a case like the present, the doctrine of res ipsa loquitur is applicable. That it can be invoked on behalf of the plaintiff is the theory of his prayer, and that it cannot be is the theory of the defendant's prayer. In the argument before this court, the appellant sought to justify its position by three propositions: First, that, in the relation of master and servant, the master is never an insurer of the servant's safety, and that he has performed his whole duty when he has exercised reasonable care in providing a safe place for the servant to work in and exercised proper inspection with regard to the place; and, secondly, that if there was negligence in the present case it was the negligence of a fellow servant, for which the master cannot be held to respond [6, 7] In regard to the first of these con- · tentions, it is sufficient to say that, while it is perfectly true that the master is not an insurer of the servant's safety, his duty as regards the servant is nondelegable; and the question whether there was or was not adequate inspection, under the circumstances testified to in this case, was rather a question for the jury than a question of law for the court. [8] The second proposition of the appellant assumes that there was negligence shown in the case; but claims it to have been the negligence of a fellow servant. But whether the negligence was the original negligence in the construction of the tower by one properly to be classed as a fellow servant, or whether it was the negligence of the defendant in inadequate inspection, was also a question of fact for the jury to determine from the evidence. The rule applicable with regard to the negligence of the fellow servant in a case between master and servant, where there is an intervening contractor, has been so recently fully stated in the able opinion by Judge Thomas, in Penn Steel Co. v. Nace, 113 Md. 460, 77 Atl. 1121, that it is not now necessary to repeat it; and it will be sufficient to ascertain whether the court below was correct in instructing the jury, as was done by prayer No. 22, that "the falling of said bridge, or a part thereof, if the jury find the same, is prima facie evidence of negligence on the part of said defendant the said Baltimore & Ohio Railroad Company." [9] By the plaintiff's prayer No. 8, joined with the defendant's second prayer, the jury were told that the plaintiff was not entitled to recover, unless the jury found that the said company was guilty of negligence, either in the construction, inspection, or maintenance of the falsework, the collapsing of which is claimed to have caused the accident. We thus have the jury told in one instruction that the mere falling of the falsework was prima facie evidence of negligence, and in another that the plaintiff's right to recover could not be maintained, unless the jury found the company guilty of negligence. It is, of course, evident that if the jury found positive acts of negligence, either in the construction, inspection, or maintenance of the falsework, no harm was done to the defendant by the granting of the plaintiff's prayer No. 22; while, on the other hand, if the jury found no evidence of negligence, except the accident itself, then serious injury resulted to the defendant from the two instructions. The evidence in this case shows the construction of falsework for a large and very heavy railroad bridge, specially designed to bear great weight and resist the vibration necessarily incident to the passage of the trains over it, constructed under the direc this does not come within that class. Thus, in the case of the Winkelmann & Brown Drug Co. v. Colladay, 88 Md. 78, 40 Atl. 1078, the doctrine was invoked, and the defendant offered no evidence whatever; but in passing upon that case this court expressly said that, "apart from the presumption of negligence, there was evidence, if the jury believed it, tending to prove negligence on the part of the company." And in the South Baltimore Car Works v. Schaefer, 96 Md. 88, 53 Atl. 665, 94 Am. St. Rep. 560, this court refused the right of the plaintiff to recover, where the sole evidence of negligence was the fact that a sharp knife on a rapidly revolving cylinder broke and flew off, injuring the plaintiff; and in Stewart & Co. v. Harman, 108 Md. 466, 70 Atl. 333, 20 L. R. A. (N. S.) 228, the application of the doctrine was denied, where the sole evidence of negligence was that a large pane of plate glass fell upon and injured the plaintiff; and, also, in Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338, in a very able opinion by the late Chief Justice Alvey, it was said that "the jury should not have for about two months, suddenly collapsing, not arise where it can be properly invoked failing to accomplish the very end for which as between master and servant, but a referit was planned and built, and for which col-ence to some of our cases will show that lapse no adequate explanation has been offered by the defense, though one is suggested in the evidence of the plaintiff, in that the supports of one of the towers were out of plumb, or had sprung or buckled. In the case of Howser v. C. & P. R. R. Co., 80 Md. 146, 30 Atl. 906, 27 L. R. A. 154, 45 Am. St. Rep. 332, what would constitute a proper case for the application of the doctrine of res ipsa loquitur was thus stated by Judge Roberts: "Where the thing is shown to be under the management of the defendant or his servant, and the accident is such as, in the ordinary course of things, does not happen, if those who have the proper management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." This was said in a case, not between master and servant, but where some crossties fell from a passing train upon the plaintiff, who was not on the right of way of the railroad company, and severely injured him, and in which case no evidence whatever was attempted to be introduced by the defendant to show care, either in the loading of the ties, or inspection of them after being load-been allowed to infer from the simple fact ed; and among the authorities relied on in that case was Kearney v. London, Brighton & South Coast R., W. L. R. 5 Q. B. 411, which case was decided by a divided court. In a number of states, and especially in the Western states, there has been a marked disposition to extend the idea that negligence was deducible from the fact of an accident, without any positive evidence of negligence on the part of the defendant. This has been in part due to the adoption of what are known as "workmen's compensation acts"; and in some states, without the intervention of the Legislature, courts have shown an inclination by their decisions to ingraft such a doctrine into their law. That has not, however, been the policy of this state; and decision after decision of this court might be cited to illustrate this fact. It has always been the policy of the courts of Maryland to interpret and administer the law, rather than to make it; and, if a change is to be made in our settled policy, it should be by the law-making branch of the state, not by a usurpation by the judicial branch of legisla-building and a third person in the construction tive functions. Two cases were cited and relied upon by the appellee as tending to support the theory that the mere happening of the accident constituted a prima facie case of negligence; yet each of them, when closely examined, disclose acts of negligence testified to, sufficient to have carried those cases to the jury. The class of cases in which the doctrine of res ipsa loquitur is applicable is, under our decisions, very much restricted; but it is not meant by this opinion to say that cases may of the happening of the accident that there was negligence or unskillfulness." In view of these repeated decisions, it appears to this court that there was error, both in granting plaintiff's prayer No. 21⁄2 and in refusing defendant's prayer A, and that the judgment must therefore be reversed; but, inasmuch as there was evidence from which the jury might properly have found negligence in construction, or neglect, or inadequate inspection, the case will be remanded for a new trial. Judgment reversed, and case remanded for a new trial, with costs to the appellant. (117 Md. 289) RATKE v. RINKER. (Court of Appeals of Maryland. Jan. 11, 1912.) 1. PARTNERSHIP (§ 54*)-EXISTENCE OF RE LATION-EVIDENCE-SUFFICIENCY. Evidence held not to show the existence of a partnership between plaintiff suing for balance due from defendant for erection of a of said building. ship, Cent. Dig. § 77; Dec. Dig. § 54.*] Where plaintiff, contracting alone to construct a building, did not hold out a third person as a partner in the transaction, and the owner of the building knew that the third person had the exclusive superintendence of the work during the sickness of the contractor, a payment by the owner to the third person on the contract, made under the belief that the third person could collect the money as the architect of the building, was not binding on *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the plaintiff on the theory that he held out the third person as a partner; the owner never having heard that the third person had been so held out. [Ed. Note.-For other cases, see Partnership, Cent. Dig. § 51; Dec. Dig. § 36.*] Appeal from Circuit Court, Allegany County, in Equity; Robert R. Henderson, Judge. Suit by James R. Rinker against Stephen Ratke. From a decree for plaintiff, defendant appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. F. Brooke Whiting, for appellant. Charles R. Morris and Harry R. Donnelly, for appellee. PATTISON, J. In this case the appellee filed his bill in the circuit court for Allegany county, in equity, alleging therein that he, in August, 1910, contracted with the appellant to build for him a dwelling house on a lot of ground owned by the appellant in the city of Cumberland. By the contract the appellee was to do the work and furnish the materials to be used in the erection of said building. The bill further alleged that the plaintiff performed his part of the contract in accordance with the terms thereof, but alleges that the defendant has failed to pay unto him the whole of the amount owing unto him for the work done and materials furnished in the erection of said building as agreed upon by and between the plaintiff and defendant, and, because of the defendant's failure to pay the whole amount thereof, the plaintiff filed in the office of the clerk of the circuit court for Allegany county a mechanic's lien for the amount so unpaid against said building and the ground upon which it is erected, as well as the ground immediately adjacent thereto, claiming therein that the amount of balance still owing him by the defendant is $573.59. The bill then alleges that the above amount is still unpaid, and in the prayer thereto the court was asked to pass a decree for the sale of said property, or so much thereof as was necessary for the payment of said mechanic's lien claim. The defendant in his answer to the bill not only admitted the execution of the contract, as the bill alleged, but also admitted that the "defendant fulfilled his contract as alleged in the bill," but averred "that said contract was fulfilled and completed, not by the plaintiff alone, but in conjunction with one George A. Coleman, his partner in said contract." The answer then admits the filing of said mechanic's lien, but charges that the claim thereunder "is wholly erroneous and unfounded," and alleges that the defendant owed no part of the amount claimed to be owing by him to the plaintiff, but alleges that the sum so claimed to be owing was duly paid by the defendant to "Coleman and Rinker, partners aforesaid" upon the completion of the work. The learned court below, after considering the evidence taken in the case, passed a decree for the sale of the property as prayed, and it is from that decree that this appeal is taken. It is not claimed by the defendant that he has paid to the plaintiff the entire amount that was to be paid under the contract for the erection of the building therein named, for of this sum he alleges that he has paid the amount so claimed by the defendant to Coleman for the alleged firm of Coleman and Rinker, although the record discloses that the amount paid to Coleman was only $546.59. The defendant's contention is that a copartnership existed between Rinker and Coleman in the erection of said building, and that the payment to Coleman, one of the partners, was a payment to the copartnership or firm, and that such payment, together with the amounts previously paid, was in full payment of the amount to be paid under the contract with the plaintiff for the work done and materials furnished thereunder. The plaintiff, however, denies the existence of the alleged copartnership, and contends that the amount paid to Coleman without authority from him was not a payment upon the amount to be received by him under his contract with Ratke, the defendant, and that it cannot be so considered. Therefore, as he contends, the above-stated amount is still owing to him by the defendant. [1] It will thus be seen that the defendant makes his defense in this case upon the existence of the alleged copartnership. Coleman testified that prior to the execution of the contract mentioned he had formed a copartnership with Rinker "on some work in South Cumberland," and while at this work he was told by Rinker that he had been asked by Ratke, who was thinking of building a dwelling, to prepare for him plans therefor. This Rinker undertook to do and submitted several plans to Ratke, but none of them were accepted, and that it was then that he (Coleman), with Rinker, went to see Ratke and talked with him about the kind of house he wanted, and upon their way home Rinker suggested to him that they do the work together. Coleman then prepared the plans, which, when carried by Rinker to Ratke, were accepted by the latter, and a contract was then executed by Rinker and Ratke, but Rinker told him, when he returned after the execution of the contract, that they would draw a contract between them in regard to the work, "but we never did." Nothing more seems to have been said between Rinker and Coleman as to the partnership except that Coleman later on in his testimony stated that it was understood "when we were done that we were to split even on the profits." The work was started, |