Baltimore & Ohio Railroad v. Leapley, 65 Md. 571

Baltimore & Ohio Railroad v. Leapley

65 Md. 571 | Md. | 1886

Stone, J.,

delivered the opinion of the Court.

Mrs. Leapley, the plaintiff, was a passenger on the road of the defendant, from Washington City to a place in Frederick County, called Tuscarora in February, 1884. She was a large woman, weighing from 175 to 200 pounds, and in a state of pregnancy for about five months, she had with her two children, aged respectively two and five years, and several bundles. She had duly paid her fare to Tuscarora, which was a regular stopping place for the train of defendant, and where there was the ordinary platform for the entrance and exit of passengers on the defendant’s road.

The plaintiff gave evidence tending to show that the train on which she was a passenger, did not stop at the platform at Tuscarora, but only slacked, and did stop *576■about 300 feet from the platform. That the conductor used profane language, but not to her, and got off the car and told the plaintiff in a rough manner to “get off,” and upon her asking him how, replied, “jump,” and that •thereupon she did jump with the youngest child in her arms. That the car step from which she jumped, was about three feet from the top of the rail, and that the ground was fifteen inches below the rail, so that according to her evidence the distance she jumped, was about four feet, three inches. She also gave evidence tending to show the injuries she received from the jump.

The defendant gave evidence, tending to show that the train did stop at Tuscarora, but not long enough for plaintiff to get off, but that the engineer mistaking a salutation made" by the conductor to a friend for a signal to start, started off before plaintiff could get off the train. That the train was stopped as soon as it could be at the distance of about ninety feet from the platform, that Mrs. Leapley appeared upon the platform of the car with her children, and seemed very anxious to get off, and that she was assisted and lifted down with all possible care and gentleness, and that no profane language was used or anything said to wrong her. That the distance from the lowest step of the car to the ground was not more than about two and a half feet, and that plaintiff made no objection to getting off where she did — this is the defendant’s evidence.

That the carriers of passengers are required to observe the utmost care is a question now so well settled, th.at it is not necessary to quote authorities. If the carrier is a •corporation, their agents are required to use the same ■care. They (the agents) are presumed and required to have the ordinary senses, especially in so responsible a position as the conductor of a railroad train. They certainly are presumed and required to have the ordinary ■eye-sight so that they can distinguish between a man in the vigor of life, and a woman in a state of pregnancy, *577and accompanied by young children. They are expected to have, and must have, in order to discharge their duty properly, judgment enough to know that what would be safe for the one would not be safe for the other.

Whether this care which the law requires, was observed, is the question in this case.

There is really no very important conflict of testimony.The woman bought a ticket from Washington to Tuscarora, a known station with the ordinary platform for the passengers to get on and off the cars by. This ticket gave her the right to be put off on that platform; whether the cars slowed up, but did not actually stop, or whether they did stop, but not long enough for the plaintiff to get off, is immaterial; the result is precisely the same.

By the act of the defendant, she could not get off at the place that her ticket contracted that she could get off. This failure of the railroad to put the plaintiff off on the usual platform provided for that purpose, and when no good reason existed why they did not do so, we think was an act of negligence on the part of the road, and if the plaintiff was injured thereby, and without fault on her part, she is entitled to recover.

But notwithstanding the improper conduct of the defendant, if the plaintiff by her own negligence and want -of care contributed to the accident, she would not have been entitled to recover, and the defendant’s third prayer should have been granted, had there been any evidence legally sufficient to support it. But we perceive none in the record. According to the defendant’s evidence, the conductor took from her arms the young child, and the brakeman, a strong man, lifted the plaintiff down. There is certainly nothing in this, defendant’s proof, showing the slightest want of care on the part of the plaintiff.

If we take her evidence, we find that she was told by the conductor to “jump off,” and that she did so, In so doing she was only obeying the explicit orders of the *578person, in charge of the train, and to whom the safety of the passengers was committed. It would come with a very ill grace from the road to say to the passenger, you have been careless and negligent because you obeyed the order of my agent.

Whether we take the evidence of plaintiff or defendant, we find no element of contributory negligence, and the third prayer was properly refused for that reason.

The defendant’s second prayer is based upon the hypothesis, that in obeying the order of the conductor, she committed an act of negligence, and what we have already said disposes of that prayer.

The fourth prayer of defendant is based upon another erroneous hypothesis. That prayer asks the Court to say substantially, that although the defendant did wrong in not stopping at the platform, if the conductor and brakeman helped her down as carefully as they could, then she cannot recover, although she was injured in so getting down. In other words, that ifj after the defendant had been guilty of an^ inexcusable act of carelessness and negligence, it was guilty of no more negligence, it should be excused. The statement of the proposition carries its refutation with' it. The plaintiff offered two prayers, which were granted. The first prayer is a full and correct statement of the law of the case and was properly granted.

We have heretofore said that the defendant was guilty of negligence in carrying the plaintiff beyond the platform, still if the plaintiff by her own negligence in getting-off contributed to the injury, she could not recover. It was to meet that view of the case that the second prayer of plaintiff was offered, and we think properly granted by the Court. If .without any direction from the conductor, the plaintiff had jumped from the car as detailed by her, it might well have been said that she had not used that due care which she was bound to use. But if she was *579excited and alarmed by the language used by the conductor, although it was not addressed to her, and in that condition she was told by the conductor to jump and she did so, we have already said that such an act did not constitute contributory negligence, and it was therefore proper for the Court so to instruct the jury.

(Decided 24th June, 1886.)

Seeing no error in the ruling, the judgment must be -affirmed.

Judgment affirmed.