Baltimore Consolidated Ry. Co. v. Foreman, 51 A. 83

Baltimore Consolidated Ry. Co. v. Foreman

51 A. 83 | Md. | 1902

This action was commenced in the Court of Common Pleas of Baltimore City, but was subsequently removed to the Baltimore City Court for trial. The suit was brought by the appellee against the appellant to recover damages for personal injuries sustained by him, while a passenger on one of the appellant's cars. The appellant is a corporation, duly incorporated under the laws of the State for the purpose of conducting *229 street railways and owns and operates electric cars through and over the streets of Baltimore.

The declaration avers that the appellee on or about the 20th day of December, 1898, was a passenger on car No. 704 of the "Frederick Road Line," which is owned and operated by the appellant company and while a passenger on board of said car, he was violently thrown therefrom at the corner of Lombard and Penn streets, by the premature starting of the car by the defendant's agents and servants, and that he was greatly bruised and seriously and permanently injured, c., and was made to suffer great pain and anguish, c., and all of which were directly caused by the negligence and want of proper care on the part of the defendant company, its agents and servants, and without fault on the plaintiff's part. The judgment was for the plaintiff and the defendant has appealed.

The principal questions in the case arise upon the prayers and relate to the negligence of the defendant, and to the contributory negligence of the plaintiff.

At the trial of the case, the Court rejected the prayers, of both plaintiff and defendant, and granted in lieu thereof the following special instruction to the jury.

1st. That if the jury shall find that the injury to the plaintiff in this case was occasioned by the want of ordinary care and skill upon the part of the conductor or motorman of the defendant, such as by starting the car prematurely, or without affording the plaintiff a reasonable opportunity, under the circumstances, of alighting in safety from the car, the plaintiff is entitled to recover.

2nd. That any failure of the plaintiff at the time to exercise ordinary care on his part, as by taking his position upon the step of the car voluntarily and without necessity, while the car was in rapid motion, contrary to the warning posted in the car upon which the plaintiff was riding, and that such act of the plaintiff directly contributed to the accident in such wise that but for such act of the plaintiff the accident would not have occurred, then the defendant is entitled to a verdict, unless the jury shall further find that the peril to which the *230 plaintiff so exposed himself was observed by the conductor in sufficient time for him, under the circumstances as testified to, by the exercise of ordinary care upon his part to have prevented the accident.

3rd. That by ordinary care is meant such care and attention as are habitually employed by, or may be reasonably expected from, persons in the situation of the respective parties under all the circumstances as they existed at the time.

It is on this instruction that the questions arise to be decided on this appeal.

The plaintiff testified that on December 20th, 1898, the night of the accident, he took the Frederick road car at ten minutes of twelve o'clock at the corner of Greenmount and North avenues; that he boarded the car, went inside, sat down, paid his fare, and remained there until the car was going out Lombard street. The streets were not called out and he could not understand where the turns were, so he got up and walked outside and asked the conductor where we were, and he said we were going out Lombard street. The plaintiff then stated that he desired to leave the car at the corner of Howard and Fayette streets, but having been carried beyond this point he asked for a transfer back and being refused, he directed the conductor to stop at the next corner; that when he notified the conductor to stop he pulled the bell and stepped inside from the platform where they were both standing. He further testified that when the conductor pulled the bell to stop he stepped inside the car and that he, the plaintiff, got down on the lower step and waited for it to go slow enough to jump off, and that while he was on the lower or bottom step, the conductor pulled two bells, the car made a lunge, and jerking the grip out of his hands, he was thrown from the car and injured; that he was thrown from the car about the middle of the street between the two crossings; that at the time he got on the lower step the car was going too fast for him to consider it safe to jump off.

It was proved by the defendant that the following signs are posted on all the cars of the defendant company: *231

"Notice to Passengers." "Passengers are not allowed to stand on the platform or sideboard of this car, or leave it while in motion, as it is dangerous to do so. Passengers must remain seated until the car comes to a complete stop. Cars stop on the near side of intersecting streets to take on or let off passengers. Passengers must enter and leave the car from the right hand side. Any one violating these regulations does so at his own risk. Agents of the company have no authority to waive these regulations."

It was further proved by the defendant that when the car stopped at Penn street, the conductor gave two bells to go ahead, as the plaintiff made no effort or attempt to get off. That the car was fifteen feet beyond Penn street, when the plaintiff jumped from the car.

There was other testimony on the part of the plaintiff and defendant at the trial below, but from an examination of the record it will be seen that the prominent and controlling fact in this case, is the careless conduct of the appellee which directly contributed to the injury.

The law which controls this and similar cases is clearly stated in Baltimore City Pass. Ry. Co. v. Wilkinson, 30 Md. 224, andBaltimore and Yorktown Co. v. Cason, 72 Md. 377. InWilkinson's case, snpra, this Court said: "While the law casts upon the company the obligation of providing safe means of transportation and of employing skillful and competent agents, and it is responsible for the consequences of any failure or omission in this respect as well as for the negligence of its agents, there is a mutual obligation imposed upon the passenger to observe the reasonable regulations of the company in entering, occupying and leaving the cars; and if a party be injured in consequence of a known violation of such regulations, unless compelled thereto by some existing necessity beyond his control, it is a breach of the contract on his part and the company is not responsible. In such case the question of negligence on the part of the passenger is a legal question for the Court to decide." And in Cason's case, where the *232 accident was the result of a violation of the company's regution, this Court said: "Had the appellee been inside the car where he ought to have been, the injury would not have been sustained. His own voluntary choice placed him in an exposed position and that position rendered the injury possible. It was a position not provided for him to occupy and even a careless observer must know that it was dangerous one to take. He thought proper to make an experiment under circumstances of peril open and known to him, which he could have reasonably avoided and it is no injustice that he is required to bear the consequences of his own act."

In the case now under consideration, it was the glaring recklessness of the plaintiff himself and not the carelessness or negligence of the company or its agents which caused the accident. The accident would not have happened if the appellee had remained inside the car and had not gotten upon the lower step of the car, while it was running at such a rapid speed. The car was not crowded and there was ample room for him to remain inside. A passenger standing on the lower step, while a car is running at a high speed, is liable to be thrown from the car by any sudden jolt.

Upon this state of facts, we think the Court committed an error in rejecting the defendant's first prayer, which instructed the jury that the undisputed evidence in the cause shows that the negligence of the plaintiff directly contributed to the injuries received by him, and the verdict should be for the defendant.

For the error in rejecting this prayer and in granting the special instruction the judgment must be reversed and as the appellee is not entitled to recover, a new trial will not be awarded.

Judgment reversed with costs.

(Decided January 15th, 1902.) *233