Dietrich v. Baltimore & Hall's Springs Railway Co.

58 Md. 347 | Md. | 1882

Alvey, J.,

delivered the opinion of the Court.

There were two actions brought—one by the father, and the other by the son, the son being a minor,—against the defendant, for an injury received by the son, caused by what was alleged to be the negligence of the defendant, or its agent.- The two actions, by agreement, were consolidated, and were tried together; and at the trial, at the close of the testimony, the Court instructed the jury that the evidence was legally insufficient upon which to found a verdict for the plaintiffs, and a verdict was thereupon rendered for the defendant.

The defendant owned and operated a horse railway between the City of Baltimore and Hall’s Springs, in Baltimore County, and the plaintiff, Andrew Jackson Dietrich, a youth of about fifteen years of age, in February, 1819, in attempting to get on the car while in motion, had his foot mashed and quite seriously hurt; and it is for this injury that both the father and the son have brought actions, founded upon the alleged neglect of the defendant or its agent, as the cause of the injury. A man by the name of Bowers was the driver and conductor of the car at the time the accident occurred.

In the course of the trial, a question arose upon the offer by the plaintiffs to prove certain declarations of Bowers, the driver, made to the brother of the party injured, about half an hour after the injury received, as to the cause of its occurrence; the proffered declarations being to the effect, that the plaintiff was hurt because the step was broken off the car, and that he, the driver, would not have told the plaintiff to get on if he had thought of the step being off. Upon objection, the Court held these declarations to be inadmissible, and the plaintiffs excepted.

We know of no principle upon which the Court could have held otherwise than it did. It does not appear that the driver had been examined as a witness for the defendant, and the declarations were not, therefore, offered to impeach his testimony. They were offered by the plaintiff as evidence in chief; but as such they were clearly inadmissible. There was no necessary connection between the declarations offered and the act complained of; the declarations in no manner forming any part of the res gestos; and the power of the driver to make such declarations to affect his principal is not to be inferred from his simple employment to drive and conduct the car. The principle is undoubted, that whatever the agent does in the prosecution of the business entrusted to him, or within the scope of his employment, though it be done negligently and improperly, is to be regarded as the act of the principal; and the rule is briefly, but clearly and correctly stated by Judge Story, (Sto. Ag., sec. 134,) that “where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestee.” But an act done by an agent cannot be varied, qualified, or explained, either by declarations or admissions made by him, which amounts to no more than a mere narrative of a part occurrence, or by an isolated conversation held, or an isolated act done, at a subsequent time. 1 Tayl. Ev., sec. 526. Here the declarations of the driver offered did not accompany the act complained of, but were made subsequently, in an isolated conversation, and which amounted to no more than a mere narrative of a past occurrence. They were therefore clearly inadmissible; and the cases all so hold, including our own. Franklin Bank vs. Steam. Nav. Co., 11 Gill & J., 28, 34; Fairlee vs. Hastings, 10 Ves., 123; Steam Packet Co. vs. Clough, 20 Wall., 528; Luby vs. Hudson R. R., 17 N. Y., 131; Robinson vs. Fitchburg R. Co., 7 Gray, 92. If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, and not by his mere assertion; and in this case, instead of offering the unsworn declarations of the driver of the car, he should have been called as a witness.

The facts of the case, as shown in proof, were shortly these: The defendant’s car had a platform at each, end, and steps to get thereon only from one side, the other side being railed. The step to one of the platforms had been broken off the day before the accident; and on the occasion when the accident occurred, the platform with the broken step was the front platform, occupied by the driver. The party injured intended going into town, and instead of remaining on the side of the road in front of his father’s premises, where he lived, and there waiting, and from thence entering the car from the rear platform, which was open on that side, and by which he admits he could have readily and easily entered the car, he took a different position, and attempted to get on the car by the front platform, which had the step broken off. He made the attempt to get on the front platform by the invitation or direction, he says, of the driver, though when specially interrogated as to this, he does not say that the driver told him to get on the front platform, but only to get on. To state the case in the language of the plaintiff himself, who was the principal witness, he says,— “I was standing waiting for the oar, and as it came along, and got right opposite to me, Mr. Bowers, the driver in charge of the car, said to me, ‘get on Jackson;’ and on taking hold of the front platform and handle of the car, and stepping for the step, I stepped right down on the rail, and the car passed over me. I know Bowers very well, and was in the habit of riding with him in the cars a good deal. As the car approached, he said, ‘get on Jackson,’ or something similar to that; I do not know the exact language. I then attempted to get on the car, and I put my foot where the step ought to be, and my foot went down to the ground,—fell upon the track, and the wheel of the car ran over my foot. I was not thrown down by the car, but was standing up when the car passed.” The step to the platform was entirely off, and this was plainly apparent to the observation of any one, as was shown by the plaintiff’s witnesses, the two McG-uffins. The plaintiff, as witness, further stated,— “ He told me to get on. Except that, I could have waited and got on the rear platform, without any trouble. It was the simple invitation of the driver that induced me to get on the front platform. Gould not say how often I had ridden on the front platform with this driver; I was always called on to ride on the front platform; it was my hahit to ride on the front platform by invitation of the driver. I rode frequently inside both the city and county cars. The car was going very slowly when I attempted to get on.” The accident occurred between 10 and 11 o’clock in the day. This was the whole evidence that related to the occurrence of the accident.

Now, conceding that there was negligence on the part of the defendant in running the car with a broken or an insufficient step to the front platform, and that there was fault in the driver in not stopping the car upon the approach of the plaintiff, the question is, did the plaintiff so directly contribute to the happening of the accident by his own want of ordinary and reasonable care, as to preclude the right of recovery for the injury suffered? This is not a question that arises upon conflicting evidence, or where inferences might be drawn from the proof of indirect circumstances, in which cases the question would be exclusively for the jury; but it is a question that arises upon the plaintiff’s own narrative of the facts attending the occurrence, and which, therefore, may be taken to be in all respects true as against him. The evidence produced to establish the negligence on the part of the defendant, establishes at the same time and as part of the plaintiff’s case, the want of reasonable care on hia own part in producing the injury complained of, and but for which want of care the injury would not have occurred: His want of caution, and his reckless disregard of the danger in attempting to board the car, while in motion, would clearly appear to have been the direct cause of the accident. He was old enough to know and understand the risk that he incurred; and if he had used his eyes he could not have failed to perceive that the step had been broken from the platform. Under such circumstances neither he nor his father can have any right of action against the defendant. The invitation of the driver to get on could bo no justification to the plaintiff for incurring the risk that was open and apparent to his senses. The liability of the defendant was conditioned upon the exercise of reasonable and proper care and caution on the part of the plaintiff; and without the latter the former, under the facts of this case, could not arise. If a party thinks proper to make an experiment, under circumstances of peril open and known to him, and which he could have reasonably avoided, it is no injustice that he is required to bear the consequences of his own act. The case falls fully within the principle and reasoning of the case of The Railroad Co. vs. Jones, 95 U. S., 439, 443.

(Decided 11th July, 1882.)

There being no conflict in the testimony, and all the material facts coming from the plaintiff himself, there was really nothing for the jury to find in respect to the cause of the injury; and as it is apparent from the evidence thus adduced by the plaintiff, that an act of his own, which amounted to negligence per se caused or directly contributed to the production of the injury complained of, the defendant was entitled to have the case withdrawn from the jury. And as that was done by the instruction given, we must affirm the judgment.

Judgment affirmed.

Robtxsoh and Ritchie, J., dissented.