44 A. 1007 | Md. | 1899
There are several questions relating to rulings on the admissibility of evidence and one in regard to the granting of an instruction taking the case from the consideration of the jury, included in the only bill of exceptions which the record contains. This is an unusual and an erroneous way to present such essentially distinct propositions. The ruling on each question should form the subject of a separate exception. "We * * are," says this Court in Ellicott v. Martin, c.,
The defendant below — the appellee here — is a corporation owning a line of steamboats which ply between Baltimore and Norfolk. The plaintiff below — the appellant here — was in March, eighteen hundred and ninety-eight, a passenger on the Alabama, one of the appellee's boats. After getting his supper he went into the smoking-room of the steamer, where some twenty or more men-passengers were smoking and conversing. In the room there were several small tables and a number of chairs for the use of passengers. Shortly after the appellant went into the *251 smoking-room Captain Bohannon, who was in command of the vessel, also entered, and remained there in conversation with some of the passengers until the occurrences now to be briefly narrated took place. At one of the tables in the smoking-room a passenger named Batten and another named Merritt were playing a game of cards for money, whilst others were looking on. A dispute arose between the two players and Batten applied to Merritt a vile epithet. The latter then arose and left the room. In a few minutes he returned, having his hand on his hip-pocket, and going up to Batten said something which was heard by only one witness. Instantly Batten struck Merritt a heavy blow, knocking him down, the captain sprung forward simultaneously and intervened, but Merritt drew a revolver from his pocket and fired; the bullet missed Batten and struck the appellant, who was standing some distance away. It lodged in his elbow and severely wounded him. For the injury thus inflicted the appellant brought this suit against the steamboat company.
The gravamen of the narr. — the sole ground upon which a right to recover is based — is the alleged negligence and want of care on the part of the defendant's servants and agents in failing to preserve order and to exercise proper control over its passengers.
Before adverting to the legal principles which lie at the foundation of the case, it will be necessary to state with a little more particularity the facts immediately surrounding and just preceding the shooting; and we will then determine, first, whether, as submitted to the jury, the facts created a liability on the part of the defendant; and secondly, whether the rejected evidence was admissible, and if admissible whether, had it been admitted, it would have furnished any better ground for a recovery than existed after its exclusion.
Going back to the point of time when Merritt returned to the smoking-room with his hand on his hip-pocket — this being after Batten had applied to him an opprobrious epithet — the events that followed in rapid succession are *252 thus described by Mr. Beecham, one of the plaintiff's witnesses, and his description is not materially varied by the others who testified: Directly Merritt came in the witness looked over to Captain Bohannon and said "come here, come here, come here quick;" and as he looked back at the affair, and long enough for him to forget the fact that he had called the captain, and while his attention was entirely fixed upon what was going on, he heard a voice saying, "what is it, what is it," and he replied "there is going to be a fight." Just at that very moment Batten reached up with his right and knocked Merritt down. When he, witness, heard a voice saying "what is it," he turned, and it was Captain Bohannon. The captain had asked him that question and he immediately pointed over showing towards Merritt's back, which was turned towards him and said to the captain, "there is going to be a fight," and that very moment Batten struck up and struck Merritt with his right, and the captain jumped right into it and Batten then sprang over the chairs towards the bar-room, and Merritt immediately fired into the crowd in the direction of where the lamplighter is. The witness was then asked: "After you called the captain, did the shooting take place before he came?" and he replied: "Oh, no, the shooting took place after he came, after he responded, after he answered me, at least after he called my attention, at least made the remark `what is it, what is it,' and after that the shooting occurred, but it was very quick work; after he answered me, just at that moment, the man Batten raised up and struck Merritt, and I suppose the captain saw that part of the fracas also at the same moment, for he jumped right into the midst of it, but he was a little too late, and the pistol went off."
Now what, in these circumstances, was the duty which the carrier owed the passenger, and in what, if in any respect, was that duty disregarded? The answer to these inquiries will decide whether the trial Court was right in withdrawing the case from the jury, even though it be conceded that all the evidence adduced by the plaintiff was true, and though *253 the legitimate inferences deducible from it be given due weight in connection with that evidence.
A carrier is not an insurer of the absolute safety of his passengers; yet he is bound to use reasonable care according to the nature of his contract; and as his employment involves the safety of the lives and limbs of his passengers, the law requires the highest degree of care which is consistent with the nature of his undertaking. B. O.R.R. Co. v. State, use of Hauer,
The duty to protect the passenger against an assault by a fellow-passenger being, then, a qualified duty, and the responsibility for a failure to perform that duty arising only after the servant has neglected to act upon the knowledge, or upon the facts which ought to have imparted knowledge that the injury was threatened, do the facts in evidence bring this case within that rule? It seems to us quite clear that they do not. The affray was a sudden one. It undoubtedly grew out of the use of abusive language. But as soon as the attention of the captain of the boat was called to the conduct of the two men, and just as he was notified that there was "going to be a fight," and, therefore, before there was a blow struck, he rushed, or as the witnessed expressed it, "he jumped in," but too late to prevent either Batten from striking Merritt, or Merritt from firing his pistol. The first intimation he had of a threatened encounter between these two men was the warning given by Beacham and he responded at once. Had he been less prompt in interfering he was not bound to assume that the quarrel would develop into an affray in which a deadly weapon would be used; and the steamboat company can not be said to have been negligent because its servants failed to forsee that a pistol would be fired into a crowd of passengers, when the firing of a pistol was by no means a necessary or even a probable result of the trouble between the two men who had then ceased to play cards. It would stretch the liability of a carrier far beyond established limits if he were held accountable for an unexpected injury inflicted by one passenger upon another passenger, and if he were so held accountable solely because the servants in charge of the boat, or the train, or the coach upon which the injury happened, failed to anticipate or infer from the fact of a quarrel between two persons that one of them would recklessly fire a pistol and injure another passenger who was not concerned or involved in the quarrel at all. And yet that is precisely what must be laid down as the law if in this case the plaintiff is entitled to recover. Captain *256 Bohannon obviously had no knowledge that the shooting of a pistol was likely to occur — at least, it was not shown that he had such knowledge — and the witness who called his attention to the hostile attitude of the parties, indicated or suggested no such probability. That a deadly weapon would be used was not a thing he was bound to assume. He acted with great and commendable promptness and interfered before the shot was fired; and there was no evidence to show that he could have done more than he did do to quell the disturbance. The fact that in spite of what he did do, the pistol was fired does not show that he did not do all that, under the circumstances, it was his duty to do. The carrier's liability does not, in such cases, depend upon the naked fact that an injury happened — if it did, as already remarked, the measure of his duty would be that of an absolute insurer. But it depends on the fact of an injury and the concomitant fact that the negligence of the carrier's servants, in omitting to prevent the doing of the act which produced the injury, actually caused the injury. Proof there must be of both of these constituent elements of the plaintiff's cause of action, but there was a total failure of evidence in the case at bar to support the latter of them. Indeed, the evidence adduced by the plaintiff negatives the idea that the company's servants were negligent.
The case of West Memphis Packet Co. v. White,
This is not a case to which the doctrine of res ipsa loquitur
applies. We discussed that doctrine in Benedick v. Potts,
There was, for the reasons we have given, no error in the ruling which took the case from the jury on the evidence in the case. Ought the proffered evidence, which was excluded, to have been admitted, or if it had been admitted would it have changed the result?
The witness Beacham was asked this question: "How long was it after you called the captain when the captain *258
came?" and he replied: "It is a difficult matter to fix that. I lost sight of the fact almost that I had called the captain's attention at all when I heard this fuss; but if the captain had responded promptly I don't believe the affair would have occurred." Upon motion the last clause of the answer, giving the belief of the witness, was stricken out. The witness Stiefel was asked: "Was there a quarrel between Merritt and Batten of sufficient violence and loudness to have attracted the attention of any one in any part of the room who was not giving attention to what was going on in the room?" and he answered: "If the captain had paid attention to it, it would have prevented the quarrel." This answer was on motion also stricken out. There was no error in either of these rulings. In both, the opinion of the witness was excluded. The question at issue in the case was for the jury, or for the Court, dealing with the legal sufficiency of the evidence, to determine, and not for the witnesses to decide. It was for the jury, if the case went to them, or for the Court, in dealing with the question as to whether there was legally sufficient evidence to be considered by the jury, to say from the facts in evidence whether the captain acted with appropriate promptness, and it was not the province of the witnesses to determine this matter at all. Tucker v. State, use ofJohnson,
The first and fourth grounds of error are one. They both involve the ruling which excluded from the jury proof of the rules or instructions prohibiting gambling on the boats. These rules or instructions were irrelevant. Had they been introduced they would not have thrown any light on the matter at issue. If the captain really violated any rule in permitting gambling on the steamer, that fact was no evidence of negligence which contributed to the injury, unless it can, either universally and invariably or, at least, with reasonable probability, be predicated of every act of gambling that it will end in such an act of violence. The argument is this: The shooting followed the blow that was struck; the blow followed the use of the abusive *259 epithet; the epithet followed the quarrel, and the quarrel grew out of the game of cards; therefore the game of cards produced the shooting, and as the game of cards was prohibited by the company's rules the company's servants were negligent in allowing it to be played. But this is neither sound reasoning nor actual fact. Until you can predicate of a game of cards as its necessary result, an assault, you have nothing but speculation — you may have a sequence of events which are purely accidental in their relation but are not inherently or necessarily the successive results of preceding causes.
As there was no error in entering judgment for the defendant — the steamboat company — that judgment will be affirmed.
Judgment affirmed with costs above and below.
(Decided December 6th, 1899).