61 Md. 266 | Md. | 1884
Lead Opinion
delivered the opinion of the Court.
The appellee sued the appellant in Baltimore City Court for injuries sustained whilst he was a passenger on appellant’s road, by reason of the negligence of the appellant.
Two questions only are presented for determination. The appellant offered two prayers. First, that .there was no legally sufficient evidence of negligence on the part of the appellant; and second, that upon the undisputed facts the appellee was guilty of contributory negligence which barred his recovery. The Court rejected these prayers, and granted the appellee’s two prayers, the first of which recited the facts deemed necessary to he found by the jury, to find for the plaintiff, and the other laying down the
There is some conflict in the testimony, in respect to some of the facts, on which the appellee bases his right to recover ; but as it is a question of whether there was sufficient legal evidence to sustain recovery, if believed by the jury, it is only necessary to state the plaintiff’s own testimony; for it must be assumed to be true, for the purposes of this decision. He states, that he took passage to the race grounds, at Pimlico, in a special train of the appellant, which was run from its principal station, Hillen Station, in the City of Baltimore, on the 20th of October, 1882; that he took the train, after buying his ticket, about noon; that the seat he occupied was a front seat in the car next to the aisle, on the left hand side of the aisle, the door opening toward that side ; that he was near enough to the door to touch it, when opened, with his foot; that all the seats in the car were filled, and there were persons standing in the aisle and on the platform; that the train was very long and the whole of it was packed and crowded ; that soon after the train started it entered the Baltimore and Potomac Eailroad tunnel, when it became pitch dark in the car, there being no lights on the train; that the door of the car was open, allowing smoke and cinders to enter in great quantities, thereby incommoding the plaintiff and other persons in the car, who shouted “shut the door; ” that the train passed the first section of the tunnel with the door open, (and witness thought it was open from the time it left Hillen Station,) and so passed into the second section of the tunnel, which was very long; that the smoke and cinders were coming from the engine in large quantities, and that witness was choking from them, and all had suffered very much; that it was still pitch dark in the car, and persons were calling out “ shut the
It appeared in the proof of the defendant that the running time for the passage of the tunnel was from six to. seven minutes. This is a sufficient summary of the evidence for our purpose, and assuming its truth, we think there was no error in refusing to take the case from the jury because of the reasons stated in either of the .prayers, of the defendant.
There can be no doubt, that it is the duty of railroads, for the conveyance of passengers to take proper precau
The imperative necessity for closing the windows, doors,, and even the ventilators when passing through tunnels, to prevent the otherwise inevitable discomfort from the smoke,, cinders and gas is notorious. The ordinary practice of the company to do that before entering a tunnel, as proved by the defendant’s own witnesses, establishes the importance of such precaution. There were ten passenger coaches and but two conductors, and two brakemen on the train. When the cry was made, to “shut the door,” there was no officer in the car to comply with the passengers’ request,, and the plaintiff was impelled by his discomfort to attempt to do it himself. Whilst we do not think or mean to say, that an officer should have been provided for every car,, or that the omission to shut out the gas and smoke would of itself have given a right to passengers to sue for the discomfort and annoyance, yet we think all the recited facts and circumstances taken together, if found by a jury, would warrant the finding of negligence on the part of' the defendant, and justify a verdict for the plaintiff, unless the plaintiff’s conduct amounted to contributory negligence. This the Court was asked by the defendant to say, as a.
Judgment affirmed.
Dissenting Opinion
filed the following dissenting opinion:
I think, in this case that the plaintiff was clearly guilty of contributory negligence, and was not entitled to recover, and that the Court should have so instructed the jury. In arriving at this conclusion, I assume, of course, the evidence on the part of the plaintiff to he true.
The only inconvenience suffered by the plaintiff, was from the smoke and cinders, which came into the cars, while passing through the tunnel. The time occupied by the train in passing through the tunnel was six or seven minutes. The tunnel itself is divided into three sections, with openings between, and at one of the openings there is a station. When in the tunnel, and when it was dark, (no lights in the cars,) the passenger left his seat with his hands extended before him in order to shut the door, and the door swaying, either from the motion of the cars, or from the act of another passenger, he ran his hand through the glass of the door, and cut it.
That his own act caused the injury to the plaintiff, must he clear. He was furnished by the company with the seat in their cars, for which he had duly paid, and would have been safely transferred to his destination, if he had hept that seat.
The only question, to my mind, then, is, whether the company gave him sufficient cause to leave his seat. If they did not they cannot he held liable.
When, however, the discomfort, caused by the negligence ■of those in charge of the train, is so great as to endanger the life or health of the passenger, then, if he can do so without manifest risk, he is authorized to endeavor to remedy the evil.
That some smoke and cinders penetrate the cars in their passage through a tunnel, is as inevitable as that some •air will find its entrance. That the life or health of a passenger can be really endangered by all the smoke or •cinders that can enter, in the few minutes taken to pass through the tunnel, even if the door of the car be open, is an impossibility in the nature of things. It may be a great discomfort to the passenger, but it can be nothing more. While I assume the evidence of the plaintiff to be true, his language must be taken in its ordinary meaning, which is not always the literal one. When he says he was choking,” he can only mean that he was suffering .great discomfort from the inhalation of the smoke, &c., and not that his respiration was about to be stopped. This •discomfort could have lasted but a very few minutes, and could not have endangered his life or health.
In leaving, therefore, his seat, and attempting to perform the duty of a brakeman, he did so at his own risk, •and, as a matter of law, I think there was no sufficient -evidence to go to the jury to authorize a recovery.