Baltimore & Potomac Railroad v. Swann, 81 Md. 400

Baltimore & Potomac Railroad v. Swann

81 Md. 400 | Md. | 1895

Bryan, J.,

delivered the opinion of the Court.

William T. Swann and Elizabeth, his wife, brought suit against the Baltimore and Potomac Railroad Company for bodily injuries sustained by the wife. Verdict and judgment being rendered in their favor, the defendant appealed.

The female plaintiff, about midday on the eleventh day of May, 1893, accompanied by her child ten months old, travelled on the mixed train of the defendant, composed of *407passenger coaches and freight cars, from Pope’s Creek to Cox’s Station, intending to return on the evening of the same day. She purchased a ticket at Cox’s Station for the purpose of taking the passenger train which would in ordinary course leave that station about seven o’clock, P. M. The passenger coaches were “ switched off” at Cox’s and only a baggage car was run from that station on that evening to Pope’s Creek. She entered that car and was conveyed to Pope’s Creek. The evidence in behalf of the plaintiffs tended to show that the accommodations were very uncomfortable and unsuitable for travellers; and that in consequence of the absence of all conveniences she “was shaken up and knocked about from side to side, and slammed against the side of the car several times, and that immediately after one of these slams, when she was struck in her right side by the side of the car, she experienced a pain there, which was followed by a pain in her back.” The evidence also tended to show that the woman was pregnant, and that the injuries which she received caused a miscarriage and that she had suffered pains in her back and side almost constantly for six months. The evidence for the defendant tended to show that she was not thrown about or jostled. It was further testified, that the cars could not be shifted at Pope’s Creek without special danger, unless a drag-rope was used; and that the drag-rope used for this purpose had been broken in two on the evening of the tenth, having been before that time weakened by being run over by cars; that the conductor had telegraphed for one on the morning of the ninth, and thereafter, on reaching Baltimore, had applied at the office of the company, but that none was received until the morning of the twelfth. The female plaintiff was a laboring woman, being in the habit of washing, cooking and working in the field. She lived about a mile or a mile and a-half from Pope’s Creek, and at the time of these occurrences she had three children. She went to Cox’s on a visit to the family of Thompson, a section hand on the railroad, *408who lived about half a mile from the station. There was some conflict of evidence in reference to the cause of the alleged miscarriage, the defendant’s testimony supporting the theory that it was more likely to have been caused by the woman’s exertions and the excitement consequent upon them before she entered the cars, and after she left them, than by any injuries received while travelling in them.

When the female plaintiff purchased a ticket at Cox’s Station, she acquired a contract right to be conveyed to Pope’s Creek, in one of the defendant’s passenger coaches. If we assume that causes beyond the defendant’s control prevented the use of a passenger coach on that occasion, the obligation still remained to carry the passenger safely, so far as it could be done by the exercise of the highest degree of care and skill which was consistent with the nature of the undertaking. If the baggage car was as safe a vehicle of transportation for passengers as the defendant could procure by the utmost care and diligence, it fulfilled its duty in this respect. There is no evidence to sustain such an hypothesis, and probably it is contrary to the usual experience of travellers. And yet, as the defendant substituted it for the passenger coach which it was bound by its contract to furnish, the least which could be demanded of it would be some reasonable effort to make it safe and convenient for a passenger. If the passenger was injured in the defendant’s cars in the course of her journey, and in consequence of some fault or defect in the vehicle of transportation, the defendant is clearly liable for the injury, unless it can show the utmost care and diligence on its part. And we think that these are the proper inquiries for the jury in this case. It cannot be alleged against the passenger as fault or negligence that she took passage in the baggage car. She had a right to be conveyed by the defendant, and she was constrained to travel in this way or not be conveyed at all. Domestic duties of the most pressing kind required that she should return that night to Pope’s Creek. It would *409be unreasonable to hold that, she had made a voluntary choice, whereby she had in this way renounced the right to safety and protection which she had purchased.

The Court granted six prayers in behalf of the plaintiff. Exception was taken to only three of them. They are as follows : ist. If the jury believe from the evidence that the defendant was the owner of the railroad mentioned in the declaration, and sold the plaintiff, Elizabeth, a ticket entitling her to travel on said railroad, and received and accepted her as a passenger to be carried from Cox to Pope’s Creek on the line of said railroad, then defendant was bound to exercise on said trip, for plaintiff’s safety, the highest degree of care and skill which was consistent with the nature of its undertaking.

2nd. If the j ury believe from the evidence that the plaintiff, Elizabeth Swann, was injured whilst a passenger on a train of the defendant, the fact of such injury is prima facie evidence of negligence on the part of the defendant, throwing upon it the omis of rebutting the presumption, by showing there was no negligence on its part.

3rd. That in order to rebut the presumption of negligence on its part, the defendant must show that the injury sustained by said plaintiff while travelling as a passenger on its train ; if the jury find that she was so injured, could not have been prevented by the utmost care and diligence, not only in the running and management of the train, but also in the structure and care of the track, and in all the subsidiary arrangements necessary to the safety of the passengers.

These prayers are taken almost verbatim from opinions of this Court. Baltimore and Ohio Railroad v. Worthington, 21 Maryland, 283 ; Same v. State use of Haner, 60 Maryland, 462 ; Hewes and Wife v. Philadelphia, &c., R. R. Co., 76 Maryland, 159. The three prayers of the defendant which seek to excuse the failure to use a passenger car, because of the want of a drag-rope, do not require the jury *410to find that the defendant made a diligent use of the means at its command for the purpose of enabling it to use the car. The first prayer puts it to the jury to find that the drag-rope was broken on the evening of May the tenth, and that no other was obtained until the morning of May the twelfth; but they are not by the prayer required to find that the defendant made a diligent effort to obtain the rope, or that it made any efforts to supply other means of running the car to Pope’s Creek. And none of these prayers require the jury to find that the baggage car was a safe conveyance for passengers. The sixth and seventh prayers deny the plaintiff’s right to recover, if the miscarriage was caused, in part, by the action of the female plaintiff in making physical exertions and undergoing excitement before she entered the baggage car and after she left it. But even if there could be no recovery for the miscarriage, the pain inflicted and injury sustained in the car would support a verdict, if found by the jury. The same remark will apply to the ninth prayer, which denies a recovery, unless the miscarriage was caused directly and exclusively by injuries sustained on the trip on account of the negligence of the defendant. The eighth prayer makes no reference to the question of the safety of the baggage car as a conveyance for passengers. The tenth prayer institutes a comparison between the injuries complained of, and those to which the female plaintiff would have been liable if seated in a regular passenger coach. It is altogether conjectural what she might have suffered in a regular passenger coach, and such a conjecture cannot be made a basis for the verdict of a jury. The ground of recovery is the absence of the proper degree of care and diligence qn the part of the defendant, provided it is shown to the satisfaction of the jury, and not what might have occurred elsewhere.

The eleventh and twelfth prayers present the question of contributory negligence. There is no evidence from which any negligence.on the part of the female plaintiff can be *411inferred, except such as tends to show that the miscarriage may have been caused in some measure by the fatigue which she underwent before she reached the cars at Cox’s, and after she left them at Pope’s Creek. We have already stated our views on this question. But we may further say, that the plaintiff’s fourth prayer, granted by the Court, confines the recovery to the injuries sustained by the female plaintiff whilst “making said journey.”

(Decided June 18th, 1895.)

All the defendant’s prayers, which we have been considering, were rejected by the Court and we approve of the ruling.

Judgment affirmed.