126 Md. 535 | Md. | 1915
delivered the opinion of the Court-
In January, 1914, the Baltimore and Ohio Railroad Company operated a regular passenger train between Aiken, in Cecil County, Maryland, a station on its Philadelphia branch, and Baltimore City. According to the schedule the train left Aiken for Baltimore at 6.45 o’clock in the morning, and returning in the evening, left Baltimore at 6.10 o’clock and arrived at Aiken at 7.40 P. M., where it remained over night. Sewell Station, a station between Aiken and Baltimore, was a run of about twenty-seven minutes from Aiken, and the train was due there at 7.12 A. M.
- On the evening of January 3rd, 1914, there was a rain and sleet storm which continued after the train arrived at Aiken, but stopped some time after ten o’clock during the night, and as early as 4.30 o’clock the next morning it was clear and very cold, the thermometer being about twenty or twenty-five degrees below “freezing point,” and the ground was covered with sleet and ice. Oh the morning of the 4th of January, 1914, the plaintiff left his home in Harford County and drove about five miles to Sewell Station to take the train for Baltimore. When he arrived there the platform of the station was covered with ice and sleet. There were four passengers there for that train, including one lady, and when the train arrived the brakeman, as was his custom, placed a box below the step of the ladies’ coach, and the lady and Mr. Durham entered that coach while the plaintiff and Mr. Webster'got on the smoking car from the platform next to the one from which the lady and Mr. Durham entered. The plaintiff and Mr. Webster state that the lower step of the smoking car was about twenty-three inches above the platform of the station; that the steps were covered with ice, and that the ice was hard, clear and smooth. The plaintiff states what occurred when he was getting on the car as follows: “I went to Sewell Station that morning to take the train for Baltimore. I had a 100-trip ticket. The train pulled into the station perfectly natural and I walked down the steps (of the station) which were covered with sleet to
Daniel L. White, the conductor, stated: “It was a clear morning, and to the best of my knowledge there was no ice to amount to anything; there was a little sleet started the day before, but to the best of my knowledge there was no ice. And there was no ice on the steps, to my knowledge. I was standing on the platform of the west end of the ladies’1 coach, and the plaintiff got on the east end of the smoker, right in front of me. He had two baskets, the best I can remember, one on each arm, this way; I don’t know exactly who got on first; I don’t just remember that part, but there was a lady and three gentlemen got on; there was a box placed by the ladies’ car, I think by the brakeman, and the lady was assisted on there. * * * I did not say anything to Mr. Hanway (plaintiff) as he got on, to my knowledge. I did not make any remark about there being ice there, and that I would have put something there to prevent people from being hurt, or anything of that kind, because there was no ice there; we had salt in our train to put on before we started; we had people to come there before. We put salt on until we get the ice off; we usually put salt on; that cuts the ice. Of course, when we don’t have that, we use ashes and sand.” On cross-examination he. testified that it was a clear and rather cold morning; that it was storming going up to Aiken the night before; that he did not know when it cleared off during the night, but that it was clear when he started in the morning. He further stated that when the
The declaration charges the negligence complained of as follows: “That the steps on one of the cars of said train were, by reason of the negligence of the defendant, in an unsafe and dangerous condition, in consequence of which the plaintiff, while entering said car, to be carried as a passenger, as aforesaid, in the exercise of ordinary care, was thrown down and seriously and permanently injured,” etc. At the conclusion of the testimony the Court below granted the prayer of the defendant instructing the jury that under the pleadings there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and this appeal is by the plaintiff from the judgment accordingly entered for the defendant.
The distinction between this case and the first two cases referred to above is obvious. Here it is admitted that it was clear and cold on the morning of the accident, and that there was no storm prevailing at the time the train started from Aiken" or at any time during the run from there to Sewell Station. The ice on the steps, as testified to by the-plaintiff’s witnesses, can not therefore be accounted for as it was in those cases. It is also admitted that there was a sleet and rain storm the evening before which lasted well into-the night, and that the car in question remained all night on an uncovered siding at Aiken. These admitted facts in connection with the evidence that the ground was covered with about two inches of snow, sleet and ice from the storm of the night previous; that the train arrived at Sewell Station about on time after a run of only twenty-seven minutes, and that the ice on the steps was hard and clear, were sufficient to go to the jury as the basis of a finding by them that the ice on the steps at the time of the accident was the result of the storm mentioned and was there when the car
In the case of P., W. & B. R. R. Co. v. Anderson, 72 Md. 519, Judge Bryan said: “They (carriers) are bound to use the utmost degree of care, skill and diligence in everything that concerns the safety of passengers; nor are their duties limited to the mere transportation of them. They are bound to provide safe and convenient modes of access to their trains, and of departure from them”; and in the late case of Smith v. N. C. Ry. Co., 119 Md. 481, Judge Urner, speaking for this Court, said: “It is not denied also that a carrier may be liable for injuries sustained through its negligence in permitting a platform it has provided for the use of its passengers to be in a unsafe condition on account of the presence of ice.”
In the case of Gilman v. Boston and Maine R. R. Co., 168 Mass. 454, 47 N. E. 193, the Court said: “We cannot say that the jury were not warranted in their finding. There was evidence of a snow storm which lasted all day in Salem, and most of the day in Boston. There was evidence that it stopped snowing in Boston at 9 in the evening, and that it was not snowing at Salem a little over half an hour later, when the.
The first and only other exception in this case was not pressed by the appellant, and it is only necessary to say that the plaintiff should have introduced the evidence excluded in that exception when the witness was examined in chief, and that there was no error in that ruling of the Court below.
Because of the error in granting the defendant’s prayer withdrawing the case from the jury, the judgment of the Court below must be reversed and the case remanded for a •new trial.
Judgment reversed, with costs to the appellant, and a new trial awarded.