148 A. 821 | Md. | 1930
Lead Opinion
The plaintiff in a suit for damages for personal injuries appeals from a judgment for the defendant, entered on a verdict of a jury upon evidence on behalf of both parties and instructions by the court. Twenty-two exceptions were taken to rulings by the court on the admission of evidence, and one to rulings on prayers for instructions. The rulings on admission of evidence have all been examined in the light of the *472 arguments, but found to present no reversible error; and as they have involved no questions of general importance, and no retrial will be had in the case, it is deemed undesirable to include a discussion of them in the opinion. The discussion will be confined to rulings on prayers for instructions to the jury.
Damico, a resident of Baltimore, on a visit to friends in Annapolis, left the house of his friends to take a train at what is called the Short Line Station, to leave for Baltimore at 9.40 P.M. He allowed himself little time, and reached the station close to the time of departure. According to evidence on behalf of the defendant, he reached it after his train had left, and attempted to enter instead cars not in service, but being shifted in the yard. On the details of the accident, in which he was injured, the testimony is in conflict.
The plaintiff's contention on the facts, on which he grounds a right of recovery for negligence of the defendant's agents, is that when he entered the station he saw two lighted cars standing on the track beside the platform, as if about to leave, that there was no dispatcher or other railway employee standing on or about the platform to direct him, and, assuming from the appearance of the cars before him that this was his train, he proceeded to mount the steps of one car, heard a voice, which he thought came from the forward part of the car, calling out that this was not the train he wanted, turned to get off, but was thrown off by a sudden starting of the car, without warning, and fell partly under the wheels. This was the effect of most of the evidence on behalf of the plaintiff. There was, however, some contradiction in his evidence; boys who had accompanied him to the station testified that, as the car was moving slowly off, the plaintiff was standing on the steps waving good-bye, and one boy, Frank Ristiano, said that then "it seemed as though he was aware he was on the wrong car and it looked like he jumped off," that he tried to get off. At that time another car or train was seen moving away about two hundred yards out of the station. The witnesses for the plaintiff agreed that, as they were about to enter *473 the station, the plaintiff and those with him heard a whistle blown. And some of his companions urged the plaintiff to hurry for fear of missing his car.
The defendant's witnesses testified that the 9.40 P.M. train left on time, when no further passengers were in sight, and had no accident. The cars which the plaintiff tried to take stood beside the platform nearly opposite the station, out of service for the night, with a light in only the forward car, with no passengers, and no employees of the company about except two car shifters, one on the front platform of the forward car, as they started, and one standing on the bumpers between the two cars. The one who had stood on the bumpers testified that he looked out and found that there was nobody else in sight except two men standing at the end of the platform talking, seemingly not moving at all. The cars did not blow a whistle until they were out in the yard. The car shifters knew nothing of the accident until told of it later. A taxicab driver testified that he saw the plaintiff running around the corner of the station after the 9.40 train had gone, and that he, the taxicab driver, called to the plaintiff that the train had gone. A physician and a nurse, called by the defendant, testified that the plaintiff, after his removal to the hospital at Annapolis, stated to them that he had tried to catch the car as it was leaving the station, jumped on it, and fell underneath the car.
On this conflicting evidence the plaintiff prayed two instructions, and both prayers were granted, while the defendant prayed sixteen, and six of these were granted. The plaintiff filed special exceptions to the granting of an eleventh prayer of the defendant's, and these exceptions were overruled. In the argument, objections were pressed on behalf of the appellant only to the granting of the defendant's fourth and eleventh prayers, and to the overruling of the special exceptions to the latter. And we see no error in other rulings on prayers.
On the fourth prayer, the court instructed the jury "that a carrier of passengers is not an insurer of their safety, and *474
for a mere accident unmixed with negligence, no action will lie, even though an injury has been done, and if the jury shall find from the evidence that there was no negligence on the part of the defendant, its agents and employees, then their verdict must be for the defendant." And the objections to this instruction are that it is too general and abstract for proper use in any case, and upon the facts in this particular case gives an inadequate and misleading guide to the jury. To these objections it seems to the court to be a sufficient answer that exactly the same instruction was held correct in the case of United Rwys. Co. v.Dean,
The instruction given the jury in the granting of the eleventh prayer of the defendant was that, if the jury should find from the evidence "that the plaintiff attempted to enter upon the car of the defendant when the said car was then in motion, and that the car was then being shifted and not in passenger service, and if the jury shall further find that the plaintiff knew, or by use of reasonable care could have known, that the said car was not then in passenger service, that the jury is instructed that the plaintiff did not become and was not a passenger, and consequently the only duty owing to the plaintiff by the defendant or its agent was to use ordinary care to avoid injuring him, after the defendant's agents knew, or by the exercise of reasonable care, should have known of the plaintiff's peril, and if the jury find that the defendant *475 and its agents used such care as a reasonably prudent man would have used under similar circumstances to avoid injuring the plaintiff, then their verdict must be for the defendant."
This is intended as an instruction on the degree of care required of the defendant, and is not to be confused with an instruction on contributory negligence. It concerns the measure of the defendant's duty, and what is termed primary negligence, to be settled before the question of contributory negligence is taken up. Compare Payne v. Springfield Street Ry. Co.,
It is unquestionably true, speaking generally, that, while in the station for the purpose of taking a train, the plaintiff was in the position of a passenger in that he was entitled to the exercise of the highest degree of care by the carrier for his safety there. But the carrier is not held by the law to provide this extraordinary care in any situation which an intending passenger may create after he comes on the premises. If the carrier in fulfilment of its duty provides a safe and proper course for such persons to pursue, and they unexpectedly pursue other courses, they may put themselves outside the undertaking of the carrier. Wash. B. A.R. Co. v. State, use of Goodwin,
The case of Balto. Traction Co. v. State, use of Ringgold,
The defendant's eleventh prayer seems to the court, for the reasons here stated, to have been correctly granted in the case.
And no error being found in the rulings excepted to, the judgment will be affirmed.
Judgment affirmed, with costs to the appellee.
Concurrence Opinion
I do not agree with so much of the opinion of the majority as holds the defendant's eleventh prayer good. This prayer, in my opinion, is defective because it imposes too heavy a burden on the plaintiff to decide whether the car which he boarded or attempted to board was or was not in service at *479 the time. This view, standing alone, would mean non-concurrence in the result.
The only evidence of defendant's negligence is that which arises from the presumption where the relation of carrier and passenger exists, and assuming defendant's negligence, if there was negligence on the part of the plaintiff, it was contributory negligence, either causing the injuries or concurring with the defendant's presumed negligence to produce the result. The injury to the plaintiff was caused in one of two ways. According to the plaintiff's theory, he could only have been injured in trying to alight from a moving train or in being thrown off the steps by the starting of the car, and according to the defendant he was injured in attempting to board a moving train. On either theory I think the facts show such a clear case of contributory negligence that the defendant's "A" prayer should have been granted, and such a ruling would have resulted in a directed verdict for the defendant. Callis v. United Rwys. Co.,
In Hagerstown and Frederick Rwy. Co. v. State, use ofCunningham,
For these reasons I concur in the result.
Concurrence Opinion
The propriety of the defendant's eleventh prayer depended upon a theory of the conjectural happening of the accident in a way inconsistent with my reading of the testimony offered *480 by both the plaintiff and defendant, and, therefore, it would seem that the prayer was inappropriate and misleading; and my concurrence in the affirmance of the judgment is because of my conclusion that the case should have been taken from the jury on the ground that there was no legally sufficient testimony to show any negligence on the part of the defendant that was the proximate cause of the plaintiff's unfortunate accident.
The plaintiff's version is that, as he was on the last step before reaching the floor of the vestibule of the car, he turned, with a package in his right hand, to leave, because the motorman had called to him that he was on the wrong car, and that he was thrown from the step by the car suddenly starting with a "little jerk" or "jolt", such, he stated, as is usual in the beginning of the movement of an electric car. As was said in Dawson v. Md.Electric Rwy.,
